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[ { "docid": "22929637", "title": "", "text": "prospectuses were put here, the district court acted within its discretion when it chose not to convert the defendants’ motion under Rule 12(b)(6) to a motion for summary judgment. 2. Functional Fiduciaries Before we delve into the question whether any of the defendants breached a fiduciary duty, we must identify who owed such duties to plaintiffs with respect to the actions at issue here. Deere does not contest the fact that it owed some fiduciary duties to the plan participants; it argues instead that plaintiffs have too expansive a concept of its fiduciary responsibilities and, in any event, that it did not breach any fiduciary duty. Fidelity Trust and Fidelity Research, in contrast, argue that they were not fiduciaries at all. The Hecker group appears to concede that neither Fidelity entity was a named fiduciary under the Trust Agreement. It argues, however, that one or both of the Fidelity entities functioned as a fiduciary under 29 U.S.C. § 1002(21)(A). In order to find that they were “functional fiduciaries,” we must look at whether either Fidelity Trust or Fidelity Research exercised discretionary authority or control over the management of the Plans, the disposition of the Plans’ assets, or the administration of the Plans. The Hecker group first argues that Fidelity Trust exercised the necessary control to confer fiduciary status by its act of limiting Deere’s selection of funds through the Trust Agreement to those managed by Fidelity Research. But what if it did? Plaintiffs point to no authority that holds that limiting funds to a sister company automatically creates discretionary control sufficient for fiduciary status. To the contrary, as Fidelity points out, there are cases holding that a service provider does not act as a fiduciary with respect to the terms in the service agreement if it does not control the named fiduciary’s negotiation and approval of those terms. Chi. Dist. Council of Carpenters Welfare Fund v. Caremark, Inc., 474 F.3d 463 (7th Cir.2007); Schulist v. Blue Cross of Iowa, 717 F.2d 1127 (7th Cir.1983). In any event, the Trust Agreement gives Deere, not Fidelity Trust, the final say on which" } ]

[ { "docid": "2326662", "title": "", "text": "plaintiffs for breaching their fiduciary duties. ERISA provides the following definition of the term “fiduciary”: [A] person is a fiduciary with respect to a plan to the extent (i) he exercises any discretionary authority or discretionary control respecting management of such plan or exercises any authority or control respecting management or disposition of its assets, (ii) he renders investment advice for a fee or other compensation, direct or indirect, with respect to any moneys or other property of such plan, or has any authority or responsibility to do so, or (iii) he has any discretionary authority or discretionary responsibility in the administration of such plan (emphasis added). 29 U.S.C. § 1002(21)(A). The Anthracite Wage Agreement, to which all defendants are allegedly either directly or indirectly a party, provides, “Title to all the monies paid into and/or due and owing said fund shall be vested in and remain exclusively in the trustees of the fund (emphasis added)_” See Exhibit A attached to document 12. The trust agreement contains similar language. See Exhibit C attached to document 12. Utilizing the above language, plaintiffs reason that employer contributions to the plaintiff fund become vested assets of the fund once they are “due and owing” as opposed to when those monies are actually paid. By failing to turn over to the fund contributions for the scalp-screened anthracite silt when they became due and owing, the defendants purportedly exercised “authority or control respecting management or disposition of [the plaintiff fund’s] assets” and thus became fiduciaries under 29 U.S.C. § 1002(21)(A)(i). According to plaintiffs, defendants breached their fiduciary duties by not reporting the sale of scalp-screened anthracite silt and by retaining for their own benefit the royalties owed to the plaintiff fund, thereby failing to act “solely in the interest of the participants and beneficiaries.” See 29 U.S.C. § 1104. The issue with respect to Counts IV through VI of the Amended Complaint, then, is whether employer contributions allegedly owed to the plaintiff fund constitute assets of the fund under these circumstances. Defendants contend that the alleged delinquent contributions are not “assets” of the retirement plan" }, { "docid": "16826629", "title": "", "text": "from responsibility or liability for any responsibility, obligation, or duty under this part shall be void as against public policy.”); In re Schering Plough Corp. ERISA Litig., 589 F.3d 585, 593 (3d Cir.2009). But this does not answer the question of whether John Hancock has taken on fiduciary status in the first place. Participants point only to the contracts themselves as support for the existence of a mutually assented-to advisory relationship between the parties, but the terms of the contracts belie their argument. This alone is enough to defeat Participants’ argument and we need not proceed further. Buster, 24 F.3d at 1117. Participants have failed to satisfactorily plead that John Hancock was an investment advice fiduciary under ERISA. 3. The Secretary argues that John Hancock had fiduciary status under both prongs of subsection (i), and as a plan administrator under subsection (iii). We reject these arguments as meritless or waived. The .Secretary first argues that John Hancock exercised “discretionary authority or discretionary control” over plan management under the first prong of 29 U.S.C. § 1002(21)(A)(i), because it retained “the authority to unilaterally delete and substitute” investment options from the Big Menu, even if it did not actually exercise that authority. Sec’y of Labor Br. at 15. The Seventh Circuit rejected this precise argument in Leimlcuehler, describing it as an “unworkable” “ ‘non-exercise’ theory of exercise” that “conflicts with a common-sense understanding of the meaning of ‘exercise,’ is unsupported by precedent, and would expand fiduciary responsibilities under Section 1002(21)(A) to entities that took no action at all with respect to a plan.” 713 F.3d at 914. “Section 1002(21)(A)’s ‘reach is limited to circumstances where the individual actually exercises some authority.’ ” Id. (quoting Trs. of the Graphic Commc’ns Int’l Union Upper Midwest Local 1M Health & Welfare Plan v. Bjorkedal, 516 F.3d 719, 733 (8th Cir.2008)). Moreover, whether John Hancock could substitute investment options on the Big Menu is not relevant to the injury that Participants allege, charging excessive fees. Next, the Secretary argues that John Hancock was a fiduciary because it “exercise[d] ... authority or control respecting management or disposition" }, { "docid": "16826616", "title": "", "text": "design” — that is, the manner in which it crafted its menu of investment options and what funds and share classes it elected to include (and the accompanying expense ratios of those options). Id. at 911. This was so because the expense ratio for each fund AUL offered was fully disclosed, and the plan sponsor “was free to seek a better deal with a different 401(k) service provider if he felt that AUL’s investment options were too expensive.” Id. at 912. Second, the court rejected the argument that AUL’s maintenance of separate sub-accounts created a fiduciary duty because the alleged breach of fiduciary duty did not involve mismanagement of the separate accounts. Id. at 913 (“AUL’s control over the separate account can support a finding of fiduciary status only if Leimkuehler’s claims for breach of fiduciary duty arise from AUL’s handling of the separate account. They do not.” (paragraph break omitted)). Participants here identify three actions that purportedly made John Hancock a fiduciary under the first prong of subsection (i). They allege that John Hancock was a fiduciary because it selected the investment options to be included in the Big Menu, because it monitored the performance of the funds on the Big Menu, and because, under the terms of its contracts with the Berge and Scibal Plans, it had the authority to add, remove, or substitute the investment options that it offered to the Plans and to alter the fees it charged for its services. See Participants’ Br. at 2. Participants’ position is that “once a party has [the] status of a functional fiduciary, they have all the obligations that ERISA imposes upon them, and those obligations include the obligation not to charge excessive fees.” Oral Arg. Rec. at 5:18-5:35. Participants’ first argument is foreclosed by Renfro, Hecker, and Leimkuehler, which together make clear that John Hancock is not a fiduciary with respect to the manner in which it composed the Big Menu, including its selection of investment options and the accompanying fee structure. The Big Menu’s fund selections and expense ratios are “product design” features of the type that" }, { "docid": "16826618", "title": "", "text": "Leimkuehler concluded do not give rise to a fiduciary duty. 713 F.3d at 911 (“[S]electing which funds will be included in a particular 401(k) investment product, without more, does not give rise to a fiduciary responsibility... .”). Moreover, we expressly stated in Renfro that a service provider “owes no fiduciary duty with respect to the negotiation of its fee compensation.” 671 F.3d at 324. Here, even if they were incentivized to select certain funds by John Hancock’s promise of indemnification in the FSW, the trustees still exercised final authority over what funds would be included on the Small Menus (and, by extension, what the accompanying expense ratios would be). Nothing prevented the trustees from rejecting John Hancock’s product and selecting another service provider; the choice was theirs. See Hecker, 556 F.3d at 583 (recognizing that “a service provider does not act as a fiduciary with respect to the terms in the service agreement if it does not control the named fiduciary’s negotiation and approval of those terms”). Participants’ second argument is that John Hancock became a fiduciary by monitoring the performance of the investment options offered on the Big Menu through its Fund Check and Underlying Fund Replacement Regimen programs. Participants’ Br. at 34. But we do not see how monitoring the performance of the funds that it offers and relaying that information to the trustees, who retain ultimate authority for selecting the funds to be included on the Small Menus, gives John Hancock discretionary control over anything, much less management of the Plans. See, e.g., JA at 399 (stating in the FSW that “Plan fiduciaries are still required to properly discharge their responsibilities in determining that John Hancock’s investment process and fund lineup is appropriate for their plan”). Participants’ third argument— that John Hancock became a fiduciary by retaining the authority to change the investment options offered on the Big Menu and alter the fees that it charged — likewise fails. Reply Br. at 16; JA at 226, Berge Contract § 15. First, this activity lacks a nexus with the conduct complained of in the Complaint. As John Hancock" }, { "docid": "5666090", "title": "", "text": "the parties submitted the case on the basis of written pleadings, depositions, and documentary evidence. Concluding that Principal had not acted in a fiduciary capacity, the district court dismissed the action. II. The appellants seek recovery from Principal on both breach of contract and breach of fiduciary duty theories. Melanjo’s plan, which included, in part, the death benefit funded by the group life insurance purchased from Principal, is governed by the Employee Retirement Income Security Act (ERISA). 29 U.S.C. §§ 1001 et seq. The appellants’ state law claim for breach of contract is preempted by ERISA. See Walker v. National City Bank of Minneapolis, 18 F.3d 630, 634 (8th Cir.1994) (citing Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987)). Thus, in order to prevail, appellants must establish that Principal acted in a fiduciary capacity and that it breached a fiduciary duty owed to the appellants. Under ERISA, the written plan instrument “should identify ‘one or more named fiduciaries.’ ” Kerns v. Benefit Trust Life Ins. Co., 992 F.2d 214, 216 (8th Cir.1993) (quoting 29 U.S.C. § 1102(a)(1)). Because Melanjo had no written plan and no named fiduciary, the appellants must demonstrate that Principal was a fiduciary under 29 U.S.C. § 1002(21)(A). See Kerns, 992 F.2d at 216. Section 1002(21)(A) provides that any other person is a fiduciary with respect to a plan to the extent (i) he exercises any discretionary authority or discretionary control respecting management of such plan or ... disposition of its assets ... or (iii) he has any discretionary authority or discretionary responsibility in the administration of such plan. 29 U.S.C., § 1002(21)(A). We held in Kerns that this definition does not encompass insurance companies when they are engaged in the performance of their normal contractual claims-handling responsibilities under the terms of a group policy. See id., 992 F.2d at 216-17. Department of Labor regulations mandate that every plan permit a claimant to appeal a denied claim “to an appropriate named fiduciary or to a person designated by such fiduciary.” 29 C.F.R. § 2560.503-l(g)(l). Often, as in this ease," }, { "docid": "16826610", "title": "", "text": "each in turn. 1. ERISA imposes a fiduciary duty on any person who “exercises any discretionary authority or discretionary control respecting management of [a] plan or exercises any authority or control respecting management or disposition of its assets.” 29 U.S.C. § 1002(21)(A)(i). Subsection (i) is thus composed of two discrete activities: (1) the exercise of discretionary management or discretionary control over the plan; and (2) the exercise of any authority or control over the management or disposition of plan assets. The two prongs of subsection (i) differentiate between “those who manage the plan in general, and those who manage the plan assets.” Bd. of Trs. of Bricklayers & Allied Craftsmen Local 6 of N.J. Welfare Fund v. Wettlin Assocs., Inc., 237 F.3d 270, 272 (3d Cir.2001). Participants argue that John Hancock is a fiduciary only under the first prong. “Only discretionary acts of plan ... management trigger fiduciary duties.” Edmonson v. Lincoln Nat. Life Ins. Co., 725 F.3d 406, 421-22 (3d Cir.2013). Consequently, a service provider owes no fiduciary duty to a plan with respect to the terms of its service agreement if the plan trustee exercised final authority in deciding whether to accept or reject those terms. See Hecker v. Deere & Co., 556 F.3d 575, 583 (7th Cir.2009), supplemented by 569 F.3d 708 (7th Cir.2009). This makes sense: when a service provider and a plan trustee negotiate at arm’s length over the terms of their agreement, discretionary control over plan management lies not with the service provider but with the trustee, who decides whether to agree to the service provider’s terms. The Seventh Circuit’s decision in Hecker stands strongly for this point. There, participants in two 401(k) plans sued their plans’ sponsor (Deere & Co.), record keeper (Fidelity Trust), and investment advisor (Fidelity Research), alleging breach of fiduciary duty for selecting investment options with excessive fees and costs, and by failing to disclose the fee structure. Heck-er, 556 F.3d at 578. The plan participants alleged that Fidelity Trust had the necessary control to take on a fiduciary responsibility because it limited the selection of funds available under the" }, { "docid": "4121325", "title": "", "text": "or exercises any authority or control respecting management or disposition of its assets, (ii) he renders investment advice for a fee or other compensation, direct or indirect, with respect to any moneys or other property of such plan, or has any authority or responsibility to do so, or (iii) he has any discretionary authority or discretionary responsibility in the administration of such plan. 29 U.S.C. § 1002(21)(A). “ ‘ERISA ... defines ‘fiduciary not in terms of formal trusteeship, but in functional terms of control and authority over the plan.’ ” In re Unisys Corp. Retiree Med. Benefits ERISA Litig., 579 F.3d 220, 228 (3d Cir.2009) (alteration and emphasis in original) (quoting Mertens v. Hewitt Assocs., 508 U.S. 248, 262, 113 S.Ct. 2063, 124 L.Ed.2d 161 (1993)). “Accordingly, ‘[fiduciary duties under ERISA attach not just to particular persons, but to particular persons performing particular functions.’ ” Id. (alteration in original) (quoting Hozier v. Midwest Fasteners, Inc., 908 F.2d 1155, 1158 (3d Cir.1990)). The definition of a fiduciary under ERISA is to be broadly construed. Curdo v. John Hancock Mut. Life Ins. Co., 33 F.3d 226, 233 (3d Cir.1994) (citing Smith v. Hartford Ins. Grp., 6 F.3d 131, 141 n. 13 (3d Cir.1993)). Among other duties, ERISA requires that a fiduciary “discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries and ... for the exclusive purpose of ... providing benefits to participants and their beneficiaries.” 29 U.S.C. § 1104(a)(1). ERISA further requires that “[a] fiduciary with respect to a plan shall not ... deal with the assets of the plan in his own interest or for his own account.” Id. § 1106(b). At least in one respect, these duties can be characterized as a fiduciary’s duty of loyalty- Edmonson contends Lincoln was acting as a fiduciary both when it chose to pay her using a retained asset account and when it later invested the retained assets for its own profit. She argues both acts were constrained by fiduciary duties because the acts involved the management or administration of the plan, or alternatively, because the" }, { "docid": "16826633", "title": "", "text": "in the Complaint, and therefore cannot provide a basis for relief. But John Hancock’s argument conflates the injuries pleaded in the Complaint — the monetary loss to the Plans caused by what Participants allege were excessive fees — with the fiduciary duties that Participants allege were breached. Participants have clearly alleged an injury-in-fact — monetary loss. Whether that injury was caused by John Hancock's breach of a fiduciary duty, and whether John Hancock had a fiduciary duty in the first place, are questions for the merits, not for standing. .Participants argue in a single sentence that John Hancock is a fiduciary under subsection (iii) of 29 U.S.C. § 1002(21)(A), which imposes a fiduciary duty on any person “to the extent ... he has any discretionary authority or discretionary responsibility in the administration of [a] plan.” This brief aside is insufficient to preserve the argument, and thus we do not consider it. See Laborers’ Int'l Union of N. Am. v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir.1994) (\"An issue is waived unless a party raises it in its opening brief, and for those purposes a passing reference to an issue ... will not suffice to bring that issue before this court.” (omission in original) (quoting Simmons v. City of Phila., 947 F.2d 1042, 1066 (3d Cir.1991))) (internal quotation marks omitted). . Fidelity was a \"directed trustee,” which “is a fiduciary 'subject to proper directions’ of one of the plan’s named fiduciaries.” Renfro, 671 F.3d at 323 (quoting 29 U.S.C. § 1103(a)(1)). . Participants argue that Renfro’s holding that a service provider has no fiduciary duty in the negotiation of its fee compensation is dictum that we are not obliged to follow. Participants' Br. at 35-36. We disagree. Renfro rejected the argument that Fidelity could be liable as a co-fiduciary with the plan sponsor for excessive fees and the selection of investment options, because it simply was not a fiduciary with respect to that conduct. See 671 F.3d at 324; see also 29 U.S.C. § 1105(a) (allowing \"a fiduciary ... [to] be liable for a breach of fiduciary responsibility of" }, { "docid": "16826606", "title": "", "text": "of fiduciary duties and prohibited transactions under 29 U.S.C. §§ 1104(a), 1106(a)-(b). ERISA provides that a person is a fiduciary to a plan if the plan identifies them as such. See 29 U.S.C. § 1102(a). It also provides that: [A] person is a fiduciary with respect to a plan to the extent (i) he exercises any discretionary authority or discretionary control respecting management of such plan or exercises any authority or control respecting management or disposition of its assets, (ii) he renders investment advice for a fee or other compensation, direct or indirect, with respect to any moneys or other property of such plan, or has any authority or responsibility to do so, or (in) he has any discretionary authority or discretionary responsibility in the administration of such plan. Such term includes any person designated under section 1105(c)(1)(B) of this title. 29 U.S.C. § 1002(21)(A). To be a fiduciary within the meaning of § 1002(21)(A), a person must “act[ ] in the capacity of manager, administrator, or financial advisor to a ‘plan.’ ” Pegram v. Herdrich, 530 U.S. 211, 222, 120 S.Ct. 2143, 147 L.Ed.2d 164 (2000). This so-called “functional” fiduciary duty is contextual — it arises “only to the extent” a person acts in an administrative, managerial, or advisory capacity to an employee benefits plan. Id. at 225-26, 120 S.Ct. 2143 (internal quotation marks omitted). “Because an entity is only a fiduciary to the extent it possesses authority or discretionary control over the plan, we ‘must ask whether [the entity] is a fiduciary with respect to the particular activity in question.’ ” Renfro v. Unisys Corp., 671 F.3d 314, 321 (3d Cir.2011) (emphasis added) (internal citations omitted) (quoting Srein, 323 F.3d at 221; and citing 29 U.S.C. § 1002(21)(A); In re Unisys Corp. Retiree Med. Benefits ERISA Litig., 579 F.3d 220, 228 (3d Cir.2009)). Thus, “the threshold question is not whether the actions of some person employed to provide services under a plan adversely affected a plan beneficiary’s interest, but whether that person was acting as a fiduciary (that is, performing a fiduciary function) when tak ing the action" }, { "docid": "16826614", "title": "", "text": "to veto” the sponsor’s selections, or to prevent the sponsor from offering competing investment options, it lacked the discretionary authority necessary to create a fiduciary responsibility as to these activities. Renfro, 671 F.3d at 323. We further noted, relying on Hecker, that a service provider “ ‘does not act as a fiduciary with respect to the terms in the service agreement if it does not control the named fiduciary’s negotiation and approval of those terms.’ ” Id. at 324 (quoting Hecker, 556 F.3d at 583). The plan participants alleged that they were injured by excessive fees caused by the fee structure that the plan sponsor and Fidelity had negotiated, but “Fidelity owe[d] no fiduciary duty with respect to the negotiation of its fee compensation.” Id. The Seventh Circuit’s recent decision in Leimkuehler v. American United Life Insurance Co., 713 F.3d 905 (7th Cir.2013), cert. denied, — U.S. —, 134 S.Ct. 1280, 188 L.Ed.2d 299 (2014), provides a final point of guidance. In Leimkuehler, a plan and its trustee sued the 401(k) service provider, American United Life Insurance Co. (“AUL”), alleging that AUL breached a fiduciary duty by engaging in the practice of revenue sharing. Id. at 907-08. Under AUL’s revenue sharing plan, it received a portion of the fees charged by the underlying mutual funds to plan participants. Id. at 909. Like here, AUL created a big menu of funds that it offered to the plan sponsor, who in turn composed a small menu to offer to the plan participants. Id. at 910. Also like here, plan participants invested their contributions into separate accounts, which in turn were invested in specific mutual funds. Id. at 908. In addition to selecting which funds to include on its big menu, AUL chose what share class would be offered, which in turn affected the expense ratio paid by plan participants and the amount of AUL’s revenue sharing. Id. at 909-10. The Seventh Circuit concluded that AUL was not a fiduciary with respect to revenue sharing. First, just as in Hecker, AUL did not take on a fiduciary status with respect to its “product" }, { "docid": "1911928", "title": "", "text": "his specific responsibilities which give rise to his status as a fiduciary, he has enabled such other fiduciary to commit a breach; or (3) if he has knowledge of a breach by such other fiduciary, unless he makes reasonable efforts under the circumstances to remedy the breach. As noted, Fidelity is a directed trustee of the plan owing fiduciary duties with respect to the limited authority and discretion it exercises. At the outset, we note a party “does not act as a fiduciary with respect to the terms in the service agreement if it does not control the named fiduciary’s negotiation and approval of those terms.” Hecker, 556 F.3d at 583; see also Chi. Dist. Council of Carpenters Welfare Fund v. Caremark, Inc., 474 F.3d 463, 473 (7th Cir.2007). “When a person who has no relationship to an ERISA plan is negotiating a contract with that plan, he has no authority over or responsibility to the plan and presumably is unable to exercise any control over the trustees’ decision whether or not, and on what terms, to enter into an agreement with him. Such a person is not an ERISA fiduciary with respect to the terms of the agreement for his compensation.” F.H. Krear & Co. v. Nineteen Named Trs., 810 F.2d 1250, 1259 (2d Cir.1987). Plaintiffs allege Unisys selected investment options with excessive fees caused by a fee structure negotiated between Unisys and Fidelity for included mutual funds. Fidelity owes no fiduciary duty with respect to the negotiation of its fee compensation by Unisys. Moreover, Fidelity was not yet a plan fiduciary at the time it negotiated the fee compensation with Unisys. Even assuming Fidelity’s subsequent assumption of the role of directed trustee could subject it to co-fiduciary liability for a breach by Unisys relating to the mix and range of investment options in the plan, including risk and fee profiles, sections 1105(a)(1) and (3) require actual knowledge of the breach. “ ‘Under this rule, the fiduciary must know the other person is a fiduciary with respect to the plan, must know that he participated in the act that" }, { "docid": "16826617", "title": "", "text": "was a fiduciary because it selected the investment options to be included in the Big Menu, because it monitored the performance of the funds on the Big Menu, and because, under the terms of its contracts with the Berge and Scibal Plans, it had the authority to add, remove, or substitute the investment options that it offered to the Plans and to alter the fees it charged for its services. See Participants’ Br. at 2. Participants’ position is that “once a party has [the] status of a functional fiduciary, they have all the obligations that ERISA imposes upon them, and those obligations include the obligation not to charge excessive fees.” Oral Arg. Rec. at 5:18-5:35. Participants’ first argument is foreclosed by Renfro, Hecker, and Leimkuehler, which together make clear that John Hancock is not a fiduciary with respect to the manner in which it composed the Big Menu, including its selection of investment options and the accompanying fee structure. The Big Menu’s fund selections and expense ratios are “product design” features of the type that Leimkuehler concluded do not give rise to a fiduciary duty. 713 F.3d at 911 (“[S]electing which funds will be included in a particular 401(k) investment product, without more, does not give rise to a fiduciary responsibility... .”). Moreover, we expressly stated in Renfro that a service provider “owes no fiduciary duty with respect to the negotiation of its fee compensation.” 671 F.3d at 324. Here, even if they were incentivized to select certain funds by John Hancock’s promise of indemnification in the FSW, the trustees still exercised final authority over what funds would be included on the Small Menus (and, by extension, what the accompanying expense ratios would be). Nothing prevented the trustees from rejecting John Hancock’s product and selecting another service provider; the choice was theirs. See Hecker, 556 F.3d at 583 (recognizing that “a service provider does not act as a fiduciary with respect to the terms in the service agreement if it does not control the named fiduciary’s negotiation and approval of those terms”). Participants’ second argument is that John Hancock became" }, { "docid": "23484297", "title": "", "text": "45-46 (1987). As part of this objective, two sections of ERISA designate who a fiduciary is. Section 1002(21) provides: (A) Except as otherwise provided in subparagraph (B), a person is a fiduciary with respect to a plan to the extent (i) he exercises any discretionary authority or discretionary control respecting management or disposition of its assets, (ii) he renders investment advice for a fee or other compensation, direct or indirect, with respect to any moneys or other property of such plan, or has any authority or responsibility to do so, or (iii) he has any discretionary authority or discretionary responsibility in the administration of such plan. Such term includes any person designated under section 1105(c)(1)(B) of this title. (B) If any money or other property of an employee benefit plan is invested in securities issued by an investment company registered under the Investment Company Act of 1940 [15 U.S.C.A. § 80a-l et seq.], such investment shall not by itself cause such investment company or such investment company’s investment adviser or principal underwriter to be deemed to be a fiduciary or a party in interest as those terms are defined in this subchapter, except insofar as such investment company or its investment adviser or principal underwriter acts in connection with an employee benefit plan covering employees of the investment company, the investment adviser, or its principal underwriter. Nothing contained in this subparagraph shall limit the duties imposed on such invest ment company, investment adviser, or principal underwriter by any other law. ERISA also contains a collateral definition of a “named” fiduciary. (1) Every employee benefit plan shall be established and maintained pursuant to a written instrument. Such instrument shall provide for one or more named fiduciaries who jointly or severally shall have authority to control and manage the operation and administration of the plan. (2) For purposes of this subchapter, the term “named fiduciary” means a fiduciary who is named in the plan instrument, or who, pursuant to a procedure specified in the plan, is identified as a fiduciary (A) by a person who is an employer or employee organization with" }, { "docid": "5317801", "title": "", "text": "to report to them the improper fees charged the Fund by Capri, and Price Waterhouse was or should have been aware of Capri’s breach of its fiduciary duties. Count III sets forth a state-law breach of contract claim and Count IY states a state-law negligence claim. The district court dismissed the complaint, agreeing with Price Waterhouse that ERISA provides neither an express nor an implied cause of action in favor of a fund and its trustees against an accounting firm that has provided allegedly deficient auditing services. III. ERISA provides that a civil action may be brought “by the Secretary, or by a participant, beneficiary or fiduciary for appropriate relief under section 1109 of this title.” 29 U.S.C. § 1132(a)(2). Section 1109 imposes personal liability on fiduciaries for breaches of their fiduciary duty. Thus, if Price Waterhouse is a fiduciary for ERISA purposes, the district court erred. ERISA defines “fiduciary” in § 1002(21)(A): Except as otherwise provided in subpara-graph (B) [addressing plan assets invested in securities issued by an investment company registered under 15 U.S.C.A. § 80a-l et seq.], a person is a fiduciary with respect to a plan to the extent (i) he exercises any discretionary authority or discretionary control respecting management of such plan or exercises any authority or control respecting management or disposition of its assets, (ii) he renders investment advice for a fee or other compensation, direct or indirect, with respect to any moneys or other property of such plan, or has any authority or responsibility to do so, or (iii) he has any discretionary authority or discretionary responsibility in the administration of such a plan. Such term includes any person designated under section 1105(c)(l)(B)p l] of this title. 29 U.S.C. § 1002(21)(A). Since Price Waterhouse clearly did not have authority or responsibility respecting management of the Fund or control over the disposition of its assets and did not provide investment advice for a fee, appellants concede that Price Waterhouse is not an ERISA fiduciary unless it comes within the scope of (iii) of section 1002(21)(A). Thus, the question presented is whether the performance of a" }, { "docid": "16826611", "title": "", "text": "to the terms of its service agreement if the plan trustee exercised final authority in deciding whether to accept or reject those terms. See Hecker v. Deere & Co., 556 F.3d 575, 583 (7th Cir.2009), supplemented by 569 F.3d 708 (7th Cir.2009). This makes sense: when a service provider and a plan trustee negotiate at arm’s length over the terms of their agreement, discretionary control over plan management lies not with the service provider but with the trustee, who decides whether to agree to the service provider’s terms. The Seventh Circuit’s decision in Hecker stands strongly for this point. There, participants in two 401(k) plans sued their plans’ sponsor (Deere & Co.), record keeper (Fidelity Trust), and investment advisor (Fidelity Research), alleging breach of fiduciary duty for selecting investment options with excessive fees and costs, and by failing to disclose the fee structure. Heck-er, 556 F.3d at 578. The plan participants alleged that Fidelity Trust had the necessary control to take on a fiduciary responsibility because it limited the selection of funds available under the plans to those managed by its sister company, Fidelity Research. Id. at 583. This was irrelevant, in the Seventh Circuit’s view, because even if Fidelity Research limited the scope of funds available under its plan, it was ultimately the responsibility of the plan sponsor — Deere & Co. — to decide which options to offer to plan participants. Id. Fidelity Trust therefore lacked the discretion necessary to confer upon it a fiduciary responsibility. Two years later, we decided Renfro. The allegations in Renfro were similar to those made here: plan participants sued not only the plan’s sponsor, but also the service provider, Fidelity Management Trust Co., alleging breach of fiduciary duty by selecting for the plan investment options that carried excessive fees. 671 F.3d at 317, 319. Fidelity conceded that it was a fiduciary with respect to certain functions, but argued that it was not a fiduciary “with respect to the challenged conduct of selecting and retaining investment options” in the plan. Id. at 322-23. There, like John Hancock argues here, Fidelity disclaimed any role" }, { "docid": "16826613", "title": "", "text": "in making the final decision on what investment options to offer plan participants. Compare id. at 323 (“The agreement expressly disclaimed any role for Fidelity in selecting investment options, stating, ‘[Fidelity entities] shall have no responsibility for the selection of investment options under the Trust.’ ”), with JA at 220, Berge Contract § 3 (“Contributions remitted to this Contract may be invested only in the Investment Options selected by the Contract-holder”), and JA at 278, Scibal Contract § 3 (same). Also like this case, the sponsor in Renfro was free to include in its plan funds not offered by Fidelity. Compare 671 F.3d at 319 (“The agreement did not prohibit Unisys from adding non-Fidelity options to its plan, and administering them itself, or from contracting with another company to administer non-Fidelity investments.”), with JA at 219, Berge Contract § 1 (defining “Competing Investment Option” as a fund “available under the Plan, either in the Contract or elsewhere”). We concluded that, because Fidelity had “no contractual authority to control the mix and range of investment options, to veto” the sponsor’s selections, or to prevent the sponsor from offering competing investment options, it lacked the discretionary authority necessary to create a fiduciary responsibility as to these activities. Renfro, 671 F.3d at 323. We further noted, relying on Hecker, that a service provider “ ‘does not act as a fiduciary with respect to the terms in the service agreement if it does not control the named fiduciary’s negotiation and approval of those terms.’ ” Id. at 324 (quoting Hecker, 556 F.3d at 583). The plan participants alleged that they were injured by excessive fees caused by the fee structure that the plan sponsor and Fidelity had negotiated, but “Fidelity owe[d] no fiduciary duty with respect to the negotiation of its fee compensation.” Id. The Seventh Circuit’s recent decision in Leimkuehler v. American United Life Insurance Co., 713 F.3d 905 (7th Cir.2013), cert. denied, — U.S. —, 134 S.Ct. 1280, 188 L.Ed.2d 299 (2014), provides a final point of guidance. In Leimkuehler, a plan and its trustee sued the 401(k) service provider, American United" }, { "docid": "1911920", "title": "", "text": "remedy a breach of fiduciary duty. See LaRue, 552 U.S. at 253, 128 S.Ct. 1020. 2. ERISA requires each plan to have one or more named fiduciaries that are granted the authority to manage the operation and administration of the plan. 29 U.S.C. § 1102(a)(1). But by ERISA’s definition: a person is a fiduciary with respect to a plan to the extent (i) he exercises any discretionary authority or discretionary control respecting management of such plan or exercises any authority or control respecting management or disposition of its assets, (ii) he renders investment advice for a fee or other compensation, direct or indirect, with respect to any moneys or other property of such plan, or has any authority or responsibility to do so, or (iii) he has any discretionary authority or discretionary responsibility in the administration of such plan. Such term includes any person designated under section 1105(c)(1)(B) of this title. 29 U.S.C. § 1002(21)(A). Because an entity is only a fiduciary to the extent it possesses authority or discretionary control over the plan, see id.; In re Unisys Corp. Retiree Med. Benefits ERISA Litig. (Unisys III), 579 F.3d 220, 228 (3d Cir. 2009), we “must ask whether [the entity] is a fiduciary with respect to the particular activity in question,” Srein v. Frankford Trust Co., 323 F.3d 214, 221 (3d Cir.2003) (internal quotation omitted). “In every case charging breach of ERISA fiduciary duty, then, the threshold question is not whether the actions of some person employed to provide services under a plan adversely affected a plan beneficiary’s interest, but whether that person was acting as a fiduciary (that is, was performing a fiduciary function) when taking the action subject to complaint.” Pegram v. Herdrich, 530 U.S. 211, 226, 120 S.Ct. 2143, 147 L.Ed.2d 164 (2000). 3. ERISA imposes statutory duties on fiduciaries that “ ‘relate to the proper management, administration, and investment of fund assets,’ with an eye toward ensuring that ‘the benefits authorized by the plan’ are ultimately paid to participants and beneficiaries.” LaRue, 552 U.S. at 253, 128 S.Ct. 1020 (quoting Mass. Mut. Life Ins. Co. v." }, { "docid": "4830715", "title": "", "text": "context: (1) the Fidelity defendants involved in the shared revenue scheme were not fiduciaries, and (2) the plan participants had access to over 2,500 mutual funds beyond those that Deere and Fidelity Trust had selected for inclusion in the plan. By contrast here, AUL has not disputed its fiduciary status, with its concomitant obligation to act “with the utmost candor, rectitude, loyalty, and good faith.” Burdett v. Miller, 957 F.2d 1375, 1381 (7th Cir.1992). And, unlike in Hecker, AUL makes no current claim that the Plan’s beneficiaries could directly access the marketplace to invest in additional mutual funds if the beneficiaries thought that the funds that AUL pre-selected had excessive expenses. Indeed, the Eighth Circuit found Hecker inapplicable where only a “limited menu” of investment options was made available to participants, 588 F.3d 585, 596 & n. 6 (8th Cir.2009), thus prompting the Ruppert court to reverse its previous decision and permit further development of the “fact specific record” necessary to determine a potential breach of fiduciary duty, see Ruppert v. Principal Life Insurance Co., No. 4:07-cv-00344-JA-TJS, [dkt. 205] (S.D.Iowa, March 31, 2010). Here, Plan participants do not have the power or authority to determine the investment options available to them or to negotiate the costs associated with those investments; those decisions are vested in plan fiduciaries. Disclosure of AUL’s full compensation may not have been material to the Plan participants when selecting between and among the investments that AUL actually chose to offer them. That information could, however, be material to the Trustee when negotiating over the expenses AUL would charge the Plan. It could also be material when evaluating the propriety of the funds that AUL selected for the participants. The same rationale applies to Hecker*s effect on Count I’s other alleged basis for AUL’s breach of its fiduciary duty: its receipt and retention of shared revenue without crediting it to the plans’ accounts (by offsetting the administration fees owed by the plans to AUL and/or by paying to the plans any revenue that exceeded the actual and reasonable costs of administering the plans). In ruling on the" }, { "docid": "16826609", "title": "", "text": "fees. Count V alleges that John Hancock’s Big Menu should not have included funds that paid certain advisor fees that Participants allege were excessive. Participants state that “[t]he alleged breach of fiduciary duty consists solely of John Hancock charging excessive fees for the performance of its fiduciary functions.” Reply Br. at 7. But this is not quite correct: the question in this case is not whether John Hancock acted as a fiduciary to the Plans at some point and in some manner and then charged an excessive fee for that fiduciary service; rather, the question is whether John Hancock acted as a fiduciary to the Plans with respect to the fees that it set. With that in mind, we now turn to the parties’ arguments. B. Participants allege that John Hancock is an ERISA fiduciary because: (1) it exercised discretionary authority respecting management of the Plans; and (2) it rendered investment advice to the Plans for a fee. The Secretary joins some of Partiei pants’ arguments, and advances some of his own. We will address each in turn. 1. ERISA imposes a fiduciary duty on any person who “exercises any discretionary authority or discretionary control respecting management of [a] plan or exercises any authority or control respecting management or disposition of its assets.” 29 U.S.C. § 1002(21)(A)(i). Subsection (i) is thus composed of two discrete activities: (1) the exercise of discretionary management or discretionary control over the plan; and (2) the exercise of any authority or control over the management or disposition of plan assets. The two prongs of subsection (i) differentiate between “those who manage the plan in general, and those who manage the plan assets.” Bd. of Trs. of Bricklayers & Allied Craftsmen Local 6 of N.J. Welfare Fund v. Wettlin Assocs., Inc., 237 F.3d 270, 272 (3d Cir.2001). Participants argue that John Hancock is a fiduciary only under the first prong. “Only discretionary acts of plan ... management trigger fiduciary duties.” Edmonson v. Lincoln Nat. Life Ins. Co., 725 F.3d 406, 421-22 (3d Cir.2013). Consequently, a service provider owes no fiduciary duty to a plan with respect" }, { "docid": "16826607", "title": "", "text": "Herdrich, 530 U.S. 211, 222, 120 S.Ct. 2143, 147 L.Ed.2d 164 (2000). This so-called “functional” fiduciary duty is contextual — it arises “only to the extent” a person acts in an administrative, managerial, or advisory capacity to an employee benefits plan. Id. at 225-26, 120 S.Ct. 2143 (internal quotation marks omitted). “Because an entity is only a fiduciary to the extent it possesses authority or discretionary control over the plan, we ‘must ask whether [the entity] is a fiduciary with respect to the particular activity in question.’ ” Renfro v. Unisys Corp., 671 F.3d 314, 321 (3d Cir.2011) (emphasis added) (internal citations omitted) (quoting Srein, 323 F.3d at 221; and citing 29 U.S.C. § 1002(21)(A); In re Unisys Corp. Retiree Med. Benefits ERISA Litig., 579 F.3d 220, 228 (3d Cir.2009)). Thus, “the threshold question is not whether the actions of some person employed to provide services under a plan adversely affected a plan beneficiary’s interest, but whether that person was acting as a fiduciary (that is, performing a fiduciary function) when tak ing the action subject to complaint.” Pegram, 530 U.S. at 226, 120 S.Ct. 2143. Before proceeding too deeply into our analysis, it is necessary first to clarify precisely what Participants claim in this case. Each Count that Participants levy against John Hancock alleges the charging of excessive fees in breach of fiduciary duty. See Participants’ Br. at 12. Counts I and II of the Complaint challenge payment of the S & S fees, alleging: (1) that contrary to John Hancock’s claim that the S & S fees were used to pay for services by third parties, the S & S fees were in fact revenue for John Hancock; and (2) that the S & S fees were excessive because they were in excess of, and duplicative of, the underlying funds’ 12b-l fees. Counts III and IV allege that John Hancock breached its fiduciary responsibility by selecting for the Big Menu investment options that charged 12b-l fees, claiming that John Hancock should have negotiated with the underlying funds for access to a share class that did not impose these" } ]

[ { "docid": "10783949", "title": "", "text": "While it is possible that a defendant may be shown to have sufficient familiarity with the cited statutes, all that we are saying here is that the obscure language of the certification provision was highly relevant to Squires’s knowledge, and that the trial court should have so instructed the jury. In conclusion, the errors below resulted primarily from the sincere efforts of a distinguished judge to deal with the unnecessary issues introduced by the inadequate drafting of the original Form 4473. Although ignorance of the law may conceivably arise as an issue even with the revised form, we expect that the revised form will eliminate much of the difficulty in the prosecution of eases under § 922(a) (6). The judgment of conviction is reversed, and the case is remanded for retrial on the first count. . § 922(a) (6) provides: (a) It shall be unlawful— ¡k # if: £ * (6) for any person in connection with the acquisition or attempted acquisition of any firearm or ammunition from a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, knowingly to make any false or fictitious oral or written statement or to furnish or exhibit any false, fictitious, or misrepresented identification, intended or likely to deceive such importer, manufacturer, dealer, or collector with respect to any fact material to the lawfulness of the sale or other disposition of such firearm or ammunition under tlie provisions of this chapter. . § 924(a) provides in pertinent part: Whoever violates any provision of this chapter * * * shall be fined not more than $5,000, or imprisoned not more than five years, or both, and shall become eligible for parole as the Board of Parole shall determine. . § 922(h) provides in pertinent part: (h) It shall be unlawful for any person— (1) who is under indictment for, or who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; sk * ❖ * * to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce. . A facsimile of" } ]

[ { "docid": "418132", "title": "", "text": "statutory purpose, when obtaining a serial number was impossible due to the nature of the firearm. His counsel therefore maintains that a “legal impossibility” prevented Arrington’s compliance with 26 U.S.C. § 5861(i) (1976). The assertion is patently erroneous. One of the statutory purposes behind requiring identification of firearms by serial number is to prevent possession of firearms such as the sawed-off shotgun found in Arrington’s house. See United States v. Ranney, 524 F.2d 830, 832 (7th Cir. 1975), cert. denied, 424 U.S. 922, 96 S.Ct. 1130, 47 L.Ed.2d 330 (1976); United States v. Peterson, 475 F.2d 806, 810 (9th Cir.), cert. denied, 414 U.S. 846, 94 S.Ct. 111, 38 L.Ed.2d 93 (1973). Admissibility of Utility Bills Finally, Arrington complains that utility bills garnered in the search of his home were inadmissible to prove his residence at the house searched. In claiming that the bills were hearsay, he errs. The bills were not proffered to prove the truth of their contents and accordingly were admissible. See United States v. Gonzales, 606 F.2d 70, 77 (5th Cir. 1979); Fed.R.Evid. 801(c). Conclusion Arrington was not a convicted felon at the time of his arrest for possessing firearms in violation of 18 U.S.C. App. § 1202(a)(1) (1976). Accordingly, his convictions on counts one through six are REVERSED. The remaining assertions of error having no merit, his convictions on counts seven and eight under 26 U.S.C. § 5861(d), (i) are AFFIRMED. . 18 U.S.C. App. § 1202(a)(1) (1976) provides: Any person who has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony and who receives, possesses, or transports in commerce or affecting commerce, after the date of enactment of this Act, any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both. . Pertinent parts of the Federal Youth Corrections Act, 18 U.S.C. §§ 5005-5026 (1976), provide as follows: § 5010. Sentence (b) If the court shall find that a convicted person is a youth offender, and the offense is punishable by imprisonment under applicable" }, { "docid": "11814690", "title": "", "text": "may well be extra neous to the basic policy of the statute, is an essential element of the offense. Finally, the Court expressly noted that the considerations of federalism and lenity did not require it to adopt the narrowest possible reading of the statute, since its broad reading appropriately reflected the basic legislative purpose of restricting firearm-related activity of convicted felons. Id. at 351, 92 S.Ct. 515. Thus, even if the broad reach of the receipt offense proscribed by § 1202 is arguably almost as extensive as if the government had prevailed in Bass, the Court’s reading does require proof of a jurisdictional fact relevant “to federal criminal jurisdiction alone.” Id. at 351, 92 S.Ct. 515. Since that fact is alleged in this indictment, even as limited by the government’s stipulation, the dismissal was improper. Reversed and remanded. . That section was enacted as a part of Title VII of the Omnibus Crime Control and Safe Streets Act of 1968, 82 Stat. 197, 236. It provides in pertinent part: “Any person who— “(1) has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony . . . and who receives, possesses, or transports in commerce or affecting commerce . . . any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both.” . The indictment charged: “That on or about the 7th day of September, 1971, at the City of Cottage Hills, Southern District of Illinois, TERRY OLIVER WALKER having been convicted on the 19th day of November, 1970, by the Circuit Court, Third Judicial Circuit of Illinois, Madison County, Illinois, of burglary, a felony, knowingly received, in commerce and affecting commerce, a firearm, that is, a Titan, .25 caliber semiautomatic pistol, Serial Number B89543; in violation of Title 18, Section 1202(a)(1), United States Code Appendix.” . At page 3 of its opposition to the motion to dismiss the indictment, the government quoted the following portion of the Bass opinion: “Having concluded that the commerce requirement is § 1202(a) must be" }, { "docid": "17387505", "title": "", "text": "§ 1202(a)(1) is not in issue on this appeal. The charge to which he pleaded arose out of his purchase, on September 29, 1986, of a shotgun from a licensed gun dealer in Danville, Pennsylvania. In making the purchase he falsely certified that he had never been convicted of a crime punishable by imprisonment for a term exceeding one year. He does not dispute that his possession of the shotgun violated the governing federal statute. B. The statute under which the government moved for an enhanced sentence provides in relevant part: Any person who— (1) has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony and who receives, possesses, or transports in commerce or affecting commerce, after the date of enactment of this Act, any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both. In the case of a person who receives, possesses, or transports in commerce or affecting commerce any firearms and who has three previous convictions by any court referred to in paragraph (1) of this subsection for robbery or burglary, or both, such person shall be fined not more than $25,000 and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under this subsection, and such person shall not be eligible for parole with respect to the sentence imposed under this subsection. 18 U.S.C.App. § 1202(a) (1982 & Supp. II 1984). In addition to felons, the statute bars dishonorably discharged veterans, mental incompetents, those who have renounced U.S. citizenship, and illegal aliens from receiving, possessing, or transporting firearms. The second sentence quoted above, containing the greater penalties for persons with three previous convictions, was added by amendment in 1984. Pub.L. No. 98-473. This court has held that the 1984 amendment did not create a new offense, but rather is merely a sentencing enhancement provision. United States v. Hawkins, 811 F.2d 210" }, { "docid": "12963170", "title": "", "text": "applying 18 U.S.C. App. § 1202(a)(1) and 18 U.S.C. § 924(d) to the defendant and his rifles, the treaty of Wolf River will not prevent its application. Puyallup, supra; Tulee, supra. In the instant case the Congress has made a reasonable determination that convicted felons should not be able to possess, receive or transport firearms. United States v. Craven, 478 F.2d 1329 (6th Cir.), cert. denied, 414 U.S. 866, 94 S.Ct. 54, 38 L.Ed.2d 85 (1973); United States v. Weatherford, 471 F.2d 47 (7th Cir. 1972), cert. denied, 411 U.S. 972, 93 S.Ct. 2144, 36 L.Ed.2d 695 (1973); United States v. Donofrio, 450 F.2d 1054 (5th Cir. 1971); United States v. Synnes, 438 F.2d 764 (8th Cir. 1971), vacated on other grounds, 404 U.S. 1009, 92 S.Ct. 687, 30 L.Ed.2d 657 (1972). We can see no basis on which to hold that that decision is only reasonable and necessary when applied to non-Indian felons. Defendant’s Indian status does not remove him from the operation of the challenged statutes. For the foregoing reasons the judgment of the district court is affirmed. . 26 U.S.C. § 7401 provides : No civil action for . . . forfeiture, shall be commenced unless the Secretary or his delegate authorizes or sanctions the proceedings and the Attorney General or his delegate directs that the action be commenced. . 18 U.S.C. § 924(d) provides : Any firearm or ammunition involved in or used or intended to be used in, any violation of the provisions of this chapter or any rule or regulation promulgated thereunder, or any violation of any other criminal law of the United States, shall be subject to seizure and forfeiture . . .. . 18 U.S.C. App. § 1202(a) provides: Any person who— (1) has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony, . . . and who receives, possesses, or transports in commerce or affecting commerce, after the date of enactment of this Act, any firearm shall be fined not more than $10,000 or imprisoned for not more than" }, { "docid": "12139054", "title": "", "text": "and distinct from the offense of engaging in the business of dealing in firearms without a license under § 922(a)(1). Section 1202(a)(1) required proof of a previous conviction of felony, which is not required under § 922(a)(1). Section 922(a)(1) requires proof of engaging in the business of dealing in firearms, which was not required under § 1202(a)(1). It is accordingly presumed that Congress intended the same conduct to be punishable under both provisions. Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932); Ball v. United States, 470 U.S. at 861, 105 S.Ct. at 1671-72. F. Karlin filed a brief pro se. We have read and considered his brief, but find no meritorious argument based on facts in the record. We have considered all points raised by Karlin or his counsel. Any propositions not specifically discussed are considered to be without merit. The judgment is Affirmed. . 18 U.S.C.App. § 1202(a)(1) was originally enacted as part of Title VII, Omnibus Crime Control and Safe Streets Act of 1968, Pub.L. 90-351, effective June 19, 1968. It provided: (a) Any person who— (1) has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony, ****** and who receives, possesses, or transports in commerce or affecting commerce, after the date of enactment of this Act, any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both. Pub.L. 98-473, § 1802, effective October 12, 1984, added at the end of § 1202(a) the following language: In the case of a person who receives, possesses, or transports in commerce or affecting commerce any firearm and who has three previous convictions by any court referred to in paragraph (1) of this subsection for robbery or burglary, or both, such person shall be fined not more than $25,000 and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the" }, { "docid": "11814691", "title": "", "text": "convicted by a court of the United States or of a State or any political subdivision thereof of a felony . . . and who receives, possesses, or transports in commerce or affecting commerce . . . any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both.” . The indictment charged: “That on or about the 7th day of September, 1971, at the City of Cottage Hills, Southern District of Illinois, TERRY OLIVER WALKER having been convicted on the 19th day of November, 1970, by the Circuit Court, Third Judicial Circuit of Illinois, Madison County, Illinois, of burglary, a felony, knowingly received, in commerce and affecting commerce, a firearm, that is, a Titan, .25 caliber semiautomatic pistol, Serial Number B89543; in violation of Title 18, Section 1202(a)(1), United States Code Appendix.” . At page 3 of its opposition to the motion to dismiss the indictment, the government quoted the following portion of the Bass opinion: “Having concluded that the commerce requirement is § 1202(a) must be read as part of the ‘possesses’ and ‘receives’ offenses, we add a final word about the nexus with interstate commerce which must be shown in individual cases. The Government can obviously meet its burden in a variety of ways. We note only some of these. For example, a person ‘possesses . . . in commerce or affecting commerce’ if at the time of the offense the gun was moving interstate or on an interstate facility, or if the possession affects commerce. Significantly broader in reach, however, is the offense of ‘receivfing] in commerce or affecting commerce,’ for we conclude that the Government meets its burden here if it demonstrates that the firearm received has previously traveled in interstate commerce.” 404 U.S. at 350, 92 S.Ct. at 524. . That paragraph now provides : “In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information as to any one or more counts, except that no" }, { "docid": "23661661", "title": "", "text": "statute is clear, that a legislative act may encompass a more restricted meaning. We believe the district court correctly found the notice insufficient. Under the circumstances we need not meet the more serious challenge to the act’s constitutionality. The cross appeal by the government is dismissed and the judgment of conviction is affirmed. . Title 18 U.S.C. App. § 1202(a) provides: (a) Any person who— (1) has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony, or (2) has been discharged from the Armed Forces under dishonorable conditions, or (3) has been adjudged by a court of the United States or of a State or any political subdivision thereof of being mentally incompetent, or (4) having been a citizen of the United States has renounced his citizenship, or (5) being an alien is illegally or unlawfully in the United States, and who receives, possesses, or transports in commerce or affecting commerce, after the date of enactment of this Act, any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both. . This contention is not new. In United States v. Walker, 489 F.2d 1353 (7th Cir. 1973), cert. denied, 415 U.S. 982, 94 S.Ct. 1574, 39 L.Ed.2d 879 (1974), Judge Campbell notes in his concurrence: It is difficult to conceive of an instance in which a person charged with possession of a firearm may not also be charged with receiving it. And if all the Government need dem onstrate is that the “firearm received has previously traveled in interstate commerce”, § 1202(a) effectively proscribes virtually all acts involving possession or receipt of firearms by a person previously convicted of a felony. If the defendant is charged with having received the weapon in any state other than the state wherein it was manufactured, the firearm will necessarily have previously traveled in interstate commerce. The fortuitous circumstances which would have to exist to render § 1202(a)(1) inapplicable are so unlikely that, in practice, the statute “renders traditionally local criminal conduct a matter" }, { "docid": "22149486", "title": "", "text": "U.S.C. § 922(h) carries over both the old classifications of 15 U.S.C. § 902(f) and adds three new ones. For our purposes the new statute adds the classification of persons indicted for a crime punishable by imprisonment for a term exceeding one year which was not in 15 U.S.C. § 902 (f). Also the statutory presumption declared unconstitutional in Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943) is deleted from the new statute. See S.Rep. No. 1097, 90th Cong., 2d Sess., 2 U.S.Code, Cong. & Admin. News, p. 2205 (1968). . 18 U.S.C.App. § 1202(a) states: Any person who— (1) has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony, or (2) has been discharged from the Armed Forces under dishonorable conditions, or (3) has been adjudged by a court of the United States or of a State or any political subdivision thereof of being mentally incompetent, or (4) having been a citizen of the United States has renounced his citizenship, or (5) being an alien is illegally or unlawfully in the United States, and who receives, possesses, or transports in commerce or affecting commerce, after the date of enactment of this Act, any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both. . In United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 448 (1971) the Court held that the phrase “in commerce or affecting commerce” in 18 U.S.C.App. § 1202(a), supra, Note J¡-, modifies the offenses of “receiving” and “possessing” as well as that of “transporting” a firearm and therefore that the government must prove as an element of the offense the interstate commerce nexus in all instances. The Court noted in Bass that, according to the legislative history of the Omnibus Crime Control and Safe Streets Act of 1968, Title VII was intended to complement Title IV but whatever reading of 18 U.S.C.App. § 1202(a) was adopted it would be, in part, redundant with 18 U.S.C. §" }, { "docid": "22149487", "title": "", "text": "has renounced his citizenship, or (5) being an alien is illegally or unlawfully in the United States, and who receives, possesses, or transports in commerce or affecting commerce, after the date of enactment of this Act, any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both. . In United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 448 (1971) the Court held that the phrase “in commerce or affecting commerce” in 18 U.S.C.App. § 1202(a), supra, Note J¡-, modifies the offenses of “receiving” and “possessing” as well as that of “transporting” a firearm and therefore that the government must prove as an element of the offense the interstate commerce nexus in all instances. The Court noted in Bass that, according to the legislative history of the Omnibus Crime Control and Safe Streets Act of 1968, Title VII was intended to complement Title IV but whatever reading of 18 U.S.C.App. § 1202(a) was adopted it would be, in part, redundant with 18 U.S.C. § 922(g) and (h). Therefore the Court chose to construe § 1202(a) narrowly. . United States v. Bass, 404 U.S. 336, 343 n. 10, 92 S.Ct. 515, 30 L.Ed.2d 448 (1971). . Supra, note 6 at 343-344 and 350 n. 18, 92 S.Ct. 515. ) . The defendant’s reliance on Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943) is misplaced. Tot dealt with the statutory presumption (see supra, note 3) of the now repealed 15 U.S.C. § 902(f). In the Court’s words Tot concerned: the question of the power of Congress to create the presumption which § 2 (f) declares, namely, that, from the prisoner’s prior conviction of a crime of violence and his present possession of a firearm or ammunition, it shall be presumed (1) that the article was received by him in interstate or foreign commerce, and (2) that such receipt occurred subsequent to July 30, 1938, the effective date of the statute. 319 U.S. at 466, 63 S.Ct. at 1244. The Court determined that the statutory presumption" }, { "docid": "6205254", "title": "", "text": "a firearm during a bank robbery. . Title 18 U.S.C. App. § 1202(a) (West Supp. 1984), with the ACCA amendment highlighted, provides: Any person who— (1) has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony, or (2) has been discharged from the Armed Forces under dishonorable conditions, or (3) has been adjudged by a court of the United States or of a State or any political subdivision thereof of being mentally incompetent, or (4) having been a citizen of the United States has renounced his citizenship, or (5) being an alien is illegally or unlawfully in the United States, and who receives, possesses, or transports in commerce or affecting commerce, after the date of enactment of this Act, any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both. In the case of a person who receives, possesses, or transports in commerce or affecting commerce any firearm and who has three previous convictions by any court referred to in paragraph (1) of this subsection for robbery or burglary, or both, such person shall be fined not more than $23,000 and Imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under this subsection, and such person shall not be eligible for parole with respect to the sentence Imposed under this subsection. Congress has clearly identified the ACCA amendment as a sentence enhancement provision by moving it into 18 U.S.C. § 924(e)(1), as noted supra, note 4. The legislative history of the Firearms Owner’s Protection Act is silent, however, as to the purpose of the ACCA amendment as originally incorporated in 18 U.S.C.App. § 1202(a). . The House Report also states that the ACCA \"amends 18 U.S.C.App. § 1202(a) by adding a new offense.\" H.R.Rep. No. 1073, 98th Cong., 2d Sess. at 6 (1984), U.S.Code Cong. & Admin. News 1984, p. 3666. JOHN R. GIBSON, Circuit" }, { "docid": "7472658", "title": "", "text": "State, we find Jordan’s claim without merit. There was no prejudice. See, e.g., Gargano v. United States, 852 F.2d 886 (7th Cir.1988); Key v. United States, 806 F.2d 133 (7th Cir.1986). In summary, Jordan’s ineffective assistance claim fails because he did not overcome the presumption of competence or demonstrate prejudice. His guilty plea was intelligently entered. Coupling this conclusion with our earlier findings regarding the lack of prosecutorial misconduct and the voluntary nature of the plea, we hold that Jordan’s state plea was properly admitted as evidence in his federal trial. We have fully considered Jordan’s arguments, but the state guilty plea, even if viewed as constitutionally defective, which it was not, is immaterial to his federal conviction. In his federal trial, an eyewitness testified that Jordan was in possession of a gun. Nothing more was needed. For the reasons stated in this opinion, the judgment of the district court is Affirmed. . This court summarized the history of 18 U.S.C. App. § 1202(a)(1) in United States v. Karlin: 18 U.S.C.App. § 1202(a)(1) was originally enacted as part of Title VII, Omnibus Crime Control and Safe Streets Act of 1968, Pub.L. 90-351, effective June 19, 1968. It provided: (a) Any person who— (1) has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony, ****** and who receives, possesses, or transports in commerce or affecting commerce, after the date of enactment of this Act, any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both. [The Armed Career Criminal Act of 1984 (\"ACCA”) ], ... effective October 12, 1984, added at the end of § 1202(a) the following language: In the case of a person who receives, possesses, or transports in commerce or affecting commerce any firearm and who has three prior convictions by any court referred to in paragraph (1) of this subsection for robbery or burglary, or both, such person shall be fined not more than $25,000 and imprisoned not less than fifteen years, and, notwithstanding any other provision" }, { "docid": "13968515", "title": "", "text": "exculpatory license or registration record, and we note further that Jackson’s prior convictions would have made it unlawful for him to own, possess, or register a pistol. See D.C. Code Ann. §§ 22-3202 and 6-2313(a)(2) (1981). We therefore refuse to disturb the district court’s entry of judgment against Jackson on the non-federal counts. CONCLUSION For the reasons stated, we affirm the judgment from which this appeal is taken. It is so ordered. . Pub.L. No. 98-473 § 1802, 98 Stat. 2185. . Receipt, possession, or transportation of firearms Persons liable; penalties for violations (a) Any person who— (1) has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony, or (2) has been discharged from the Armed Forces under dishonorable conditions, or (3) has been adjudged by a court of the United States or of a State or any political subdivision thereof of being mentally incompetent, or (4) having been a citizen of the United States has renounced his citizenship, or (5) being an alien is illegally or unlawfully in the United States, and who receives, possesses, or transports in commerce or affecting commerce, after the date of enactment of this Act, any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both. In the case of a person who receives, possesses, or transports in commerce or affecting commerce any firearm and who has three previous convictions by any court referred to in paragraph (1) of this subsection for robbery or burglary, or both, such person shall be fined not more than $25,000 and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under this subsection, and such person shall not be eligible for parole with respect to the sentence imposed under this subsection. 18 U.S.C.App. § 1202(a) (Supp.1984). Effective November 15, 1986, 18 U.S.C.App. § 1202(a)’s first sentence has been incorporated into 18 U.S.C. §" }, { "docid": "12825337", "title": "", "text": "violate the law or knowledge on the part of the defendant that he is violating the law. It must prove that the defendant knowingly possessed the firearm. United States v. Wiley, 478 F.2d 415 (8th Cir. 1973); United States v. Crow, 439 F.2d 1193 (9th Cir. 1971), vacated on other grounds, 404 U.S. 1009, 92 S.Ct. 687, 30 L.Ed.2d 657 (1972). The government has met that burden here. Moreover, this Court upheld the eonstitutionality of this statute in United States v. Mancino, 474 F.2d 1240 (8th Cir. 1973), and in United States v. Synnes, 438 F.2d 764 (8th Cir. 1971), vacated on other grounds, 404 U.S. 1009, 92 S.Ct. 687, 30 L.Ed.2d 657 (1972). The Act exempts from its provisions “ * * * any person who has been pardoned by the President of the United States or the chief executive of a State and has expressly been authorized by the President of such chief executive, as the ease may be, to receive, possess or transport in commerce a firearm.” 18 U.S.C. App. § 1203(2) (1968). The defendant is not such a person. He belongs to a general class of convicted felons whose civil rights have been restored by a statute that is silent with respect to the right of such persons to possess firearms. If the Congress desires to extend the exemption to persons in this class, it can do so; but we find no evidence of such intent in the language in the legislative history of the Act. See, Stevens v. United States, 440 F.2d 144 (6th Cir. 1971). This result may seem confusing and harsh, but the classification established by Congress is, in our view, a reasonable one and cannot be overturned by us. Affirmed. . “(a) Any person who— “(1) has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony, H* * * “and who receives, possesses, or transports in commerce or affecting commerce, after the date of enactment of this Act, any firearm shall be fined not more than $10,000 or imprisoned for" }, { "docid": "12963171", "title": "", "text": "the district court is affirmed. . 26 U.S.C. § 7401 provides : No civil action for . . . forfeiture, shall be commenced unless the Secretary or his delegate authorizes or sanctions the proceedings and the Attorney General or his delegate directs that the action be commenced. . 18 U.S.C. § 924(d) provides : Any firearm or ammunition involved in or used or intended to be used in, any violation of the provisions of this chapter or any rule or regulation promulgated thereunder, or any violation of any other criminal law of the United States, shall be subject to seizure and forfeiture . . .. . 18 U.S.C. App. § 1202(a) provides: Any person who— (1) has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony, . . . and who receives, possesses, or transports in commerce or affecting commerce, after the date of enactment of this Act, any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both. . 28 U.S.C. § 1345 provides in part: [T]he district courts shall have original jurisdiction of all civil actions, suits or proceedings commenced by the United States . Apparently at the district court level the defendant argued that 18 U.S.C. App. § 1202 was invalid as an “infringement of the second amendment’s protection of the right to bear arms, the first amendment’s prohibition of bills of attainder and ex post facto laws, and the fourteenth amendment’s due process clause.” These arguments were appropriately rejected. Cody v. United States, 460 F.2d 34 (8th Cir.), cert. denied, 409 U.S. 1010, 93 S.Ct. 454, 34 L.Ed.2d 303 (1972) ; United States v. Synnes, 438 F.2d 764 (8th Cir. 1971), vacated on other grounds, 404 U.S. 1009, 92 S.Ct. 687, 30 L.Ed.2d 657 (1972). These issues have not been raised on appeal. . Defendant argues that this letter to Judge Gordon is not properly before this court because it was not part of the original record in this case. We note that the letter to" }, { "docid": "22120171", "title": "", "text": "of counsel. In the Court’s view, this was the necessary implication of Argersinger because: The Court in its opinion repeatedly referred to trials “where an accused is deprived of his liberty,” 407 U.S. at 32 [92 S.Ct. at 2010] and to “a case that actually leads to imprisonment even for a brief period,” 407 U.S. at 33 [92 S.Ct. at 2010]. The Chief Justice in his opinion concurring in the result also observed that “any deprivation of liberty is a serious matter.” 407 U.S. at 41 [92 S.Ct. at 2014]. Id. In Lewis v. United States, 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980), the Supreme Court ruled that a felony conviction wherein a defendant had no counsel may nonetheless be used as a basis for imposing on him federal criminal sanctions for possession of a firearm by a felon. Lewis had been convicted in 1961 by a Florida state court for breaking and entering with intent to commit a misdemeanor— conduct which was a felony under the statute. Upon being convicted he was imprisoned and his conviction was never overturned. In 1977, Lewis was arrested in Virginia and later indicted for having knowingly received and possessed a firearm, in violation of 18 U.S.C.App. § 1202(a)(1). Among other things, this statute provides, “Any person who — (1) has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony, . . . and who receives, possesses, or transports in commerce or affecting commerce, after the date of enactment of this Act, any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both.” At Lewis’ bench trial, he had stipulated that the weapon in question had been shipped in interstate commerce. The Government then introduced in evidence an official copy of his 1961 Florida felony conviction. However, prior to trial, his attorney informed the trial judge that Lewis had not been represented by counsel when he was convicted in Florida. After the judge ruled this to be immaterial as to Lewis’" }, { "docid": "5805818", "title": "", "text": "court may conduct proceedings to determine whether the convictions listed in the indictment involved three separate criminal episodes. If the district court concludes that only two episodes were involved, it may then consider whether the Monroe County convictions could serve as the third predicate offense under the enhancement statute. . This Act provides that a felon in possession of a weapon, who has three prior convictions for robbery or burglary, shall be sentenced to serve at least fifteen years in prison without parole. The text of the Act reads: Any person who— (1) has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony ... and who receives, possesses, or transports in commerce or affecting commerce, after the date of enactment of this Act, any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both. In the case of a person who receives, possesses, or transports in commerce or affecting commerce any firearm and who has three previous convictions by any court referred to in paragraph (1) of this subsection for robbery or burglary, or both, such person shall be fined not more than $25,000 and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under this subsection, and such person shall not be eligible for parole with respect to the sentence imposed under this subsection. 18 U.S.C.App. § 1202. . The statute, under which Pedigo was convicted, was repealed on November 16, 1986 and now appears in modified form at 18 U.S.C. § 924(e)(1) (1988). Thus, it seems that the original version of the statute was in effect at the time of the alleged offense (March 12, 1986). Neither party has raised any issue arising from the repeal of the statute. See 1 U.S.C. § 109 (providing that the repeal does not retroactively extinguish the penalty unless the repealing statute so provides); United States v." }, { "docid": "18806542", "title": "", "text": "1110 (“[H]aving opened the subject in his direct testimony, appellant may not object to the Government’s subsequent inquiries into the relevant aspects of his prior conviction.”). C. Order of Sentences West challenges the sequence in which the district court imposed his sentences. He argues that he should serve the sentences with no parole eligibility before those which provide for parole. When the district court imposes consecutive sentences for federal offenses, the Federal Bureau of Prisons aggregates the maximum terms into a single sentence. 28 C.F.R. § 2.5 (1986). Because the Bureau of Prisons will compute West’s parole eligibility based on his aggregate sentence, the order in which he serves the sentences is irrelevant. Cf. Hunter v. Martin, 334 U.S. 302, 68 S.Ct. 1030, 92 L.Ed. 1401 (1974). AFFIRMED. . The first sentence of 18 U.S.C.App. § 1202(a) provides: Any person who— (1) has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony, or (2) has been discharged from the Armed Forces under dishonorable conditions, or (3) has been adjudged by a court of the United States or of a State or any political subdivision thereof of being mentally incompetent, or (4) having been a citizen of the United States has renounced his citizenship, or (5) being an alien is illegally or unlawfully in the United States, and who receives, possesses, or transports in commerce or affecting commerce, after the date of enactment of this Act, any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both. . The sentence states: \"[A] person who receives, possesses, or transports in commerce or affecting commerce any firearm and who has three previous convictions by any court referred to in paragraph (1) of this subsection for robbery or burglary, or both, such persons shall be fined not more than $25,000 and imprisoned not less than fifteen years----” 18 U.S.C.App. § 1202(a). . West filed a pro se brief on May 1, 1987, alleging ineffective assistance of counsel based on trial counsel’s failure to conduct" }, { "docid": "10789030", "title": "", "text": "PHILLIPS, Chief Judge. Two questions are presented on this appeal: (1) Is possession of a firearm by a person previously convicted of a felony a violation of federal criminal law when the indictment does not charge and the evidence does not establish that the firearm was in commerce or affected commerce? (2) If so, did Congress have the power to enact such a statute? We answer both questions in the affirmative and uphold the conviction of Frank James Stevens for violation of 18 U.S.C. App. § 1202(a) (1). This statute, which was enacted as a part of Title VII of the Omnibus Crime Control and Safe Streets Act of 1968, is in pertinent part as follows: “§ 1202(a) Any person who— “(1) has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony, * * * and who receives, possesses, or transports in commerce or affecting commerce, after the date of enactment of this Act, any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both.” 18 U.S.C. App. § 1202. The indictment under which Stevens was convicted charged: “That on or about the 26th day of December, 1969, in Harlan County, in the Eastern District of Kentucky, FRANK JAMES STEVENS having been convicted in a state court, to-wit, the Harlan Circuit Court, Harlan, Kentucky, on or about June 16, 1958, of a felony, that is, armed assault with intent to rob, in violation of the laws of the Commonwealth of Kentucky, and having been convicted in a state court, to-wit, the Oldham Circuit Court, LaGrange, Kentucky, on or about May 28, 1962, of a felony, that is, voluntary manslaughter in violation of the laws of the Commonwealth of Kentucky, willfully and knowingly possessed a firearm, that is, a 9mm Astra, Semi-automatic pistol, Serial No. 87270.” Stevens concedes that sufficient evidence was presented at the trial to prove every fact alleged in the indictment. It is contended, however, that the convic tion must be set aside because the indictment does not" }, { "docid": "7538228", "title": "", "text": "Agent Parker’s testimony concerning the out-of-state location of the Savage Arms Company was inadmissible hearsay. Agent Parker testified that he had worked with ATF for nine years, primarily dealing with firearms, and had conducted over a thousand similar firearms investigations. He further testified that based on his personal knowledge and experience, the Savage Arms Company had never had a manufacturing plant in Maryland. This statement is not hearsay, but is based on the personal knowledge of an experienced witness who was available for cross-examination. We conclude that Agent Parker’s testimony as a firearms expert was sufficient to show the required interstate commerce nexus for the Savage rifle. See United States v. Sickles, 524 F.Supp. 506, 511-12 (D.Delaware 1981), and United States v. Stine, 458 F.Supp. 366, 371 (E.D.Pa.1978) (ATF agent’s unrebutted expert testimony was sufficient to establish the place of manufacture and to prove the element of interstate shipment of the firearms). III. For the foregoing reasons, Simmons’ convictions for violating the provisions of 18 U.S.C.App. § 1202(a)(1) are affirmed. AFFIRMED. . 18 U.S.C.App. § 1202(a)(1) provides in pertinent part that: Any person who— (1) has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony * * * and who receives, possesses, or transports in commerce or affecting commerce, after the date of enactment of this Act, any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both. . The form used in this case, ATF form F. 7520.-4, is divided into two parts. Part I, entitled “Record Search Information,” was completed in each instance by Agent Parker, on June 26, 1984. This portion includes the name of the firearms manufacturer, the type of firearm, the model, caliber or gauge, capacity, barrel length, finish, serial number, country of origin, name and address of consignee, date shipped, and invoice number. Part II of the form is the “Certification\" to be completed, signed and dated by the manufacturer’s custodian of records upon receipt of the form. In each instance here, the record" }, { "docid": "21558729", "title": "", "text": "convicted in the Knox County Superior Court, State of Maine on November 5, 1981 for burglary in docket number CR-81-186 and for theft in docket number number [sic] CR-81-186; and having been convicted in Kennebec County Superior Court, State of Maine, on November 6, 1985 for burglary in docket number CR-85-496; all crimes punishable by imprisonment for a term exceeding one year under the laws of the State of Maine; did knowingly receive and possess in commerce and affecting commerce, a firearm, that is a Harrington and Richardson, Model 929, .22 caliber, revolver, serial number AC31969; In violation of Title 18, Appendix II, United States Code, Section 1202(a)(1). .18 U.S.C.App. § 1202(a) reads in pertinent part: In the case of a person who receives, possesses, or transports in commerce or affecting commerce any firearm and who has three previous convictions by any court referred to in paragraph (1) of this subsection for robbery or burglary, or both, such person shall be fined not more than $25,000 and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under this subsection, and such person shall not be eligible for parole with respect to the sentence imposed under this subsection. This section was repealed; it has been reenacted in broader form and recodified at 18 U.S.C. § 924(e)(1). . The court initially denied Collamore’s motion to bifurcate, but, after reconsideration, granted the motion. . Collamore does not contend that the government has not followed the procedures set forth in 18 U.S.C. § 3731 for prosecuting this appeal. The record clearly indicates that all required steps have been taken. . Collamore’s reliance on Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967), is misplaced. Spencer dealt with Texas statutes which provided for enhanced penalties if the jury found the defendants to be repeat offenders. Id. at 555-56, 87 S.Ct. at 649-50. The court noted that bifurcation of the penalty phase of trial from the guilt" } ]

[ { "docid": "22381723", "title": "", "text": "should be said is that he has the rights of a lien creditor upon property in which the bankrupt has an interest or as to which the bankrupt may be the ostensible owner. Accordingly, the language of section 70c has been revised so as to clarify its meaning and state more accurately what is intended.” We think that one consistent theory underlies the several versions of § 70c which we have set forth, vis., that the rights of creditors — whether they are existing or hypothetical — to which the trustee succeeds are to be ascertained as of “the date of bankruptcy,” not at an anterior point of time. That is to say, the trustee acquires the status of a creditor as of the time when the petition in bankruptcy is filed. We read the statutory words “the rights ... of a creditor [existing or hypothetical] then holding a lien” to refer to that date. This construction seems to. us to fit the scheme of the Act. Section 70e enables the trustee to set aside fraudulent transfers which creditors having provable claims could void. The construction of § 70c which petitioner urges would give the trustee power to set aside transactions which no creditor could void and which injured no creditor. That construction would enrich unsecured creditors at the expense of secured creditors, creating a windfall merely by reason of the happenstance of bankruptcy. It is true that in some instances the trustee has rights which existing creditors may not have. Section 11, 11 U. S. C. § 29, gives him two years to institute legal proceedings regardless of what limitations creditors might have been under. Section 60, 11 U. S. C. § 96, gives him the right to recover preferential transfers made by the bankrupt within four months whether or not creditors had that right by local law. A like power exists under § 67a, 11 U. S. C. § 107 (a), as respects the invalidation of judicial liens obtained within four months of bankruptcy when the bankrupt was insolvent. Section 67d, 11 U. S. C. § 107 (d)," } ]

[ { "docid": "14779378", "title": "", "text": "shopping, and to prevent a party from receiving “a windfall merely by reason of the happenstance of bankruptcy.” Butner v. United States, 440 U.S. 48, 54-55, 99 S.Ct. 914, 918, 59 L.Ed.2d 136 (1979). See generally Jackson, The Logic and Limits of Bankruptcy Law, at 21-27 (1986). “[I]n its role as a collective debt-collection device, bankruptcy law should not create rights. Instead, it should act to ensure that the rights that exist are vindicated to the extent possible.” Id. at 22. Cf. Kelly v. Robinson, 479 U.S. 36, 47, 107 S.Ct. 353, 360, 93 L.Ed.2d 216 (1986) (“federal bankruptcy courts should not invalidate the results of state criminal proceedings”). “Bankruptcy law would be an odd place to generate new federal causes of action. Each time it does, strategic incentives are created to use the bankruptcy process for individual gain, even if it comes at the expense of the collective weal.” Jackson, supra at 34. Historically, a bankruptcy court is a court of equity. Local Loan Co. v. Hunt, 292 U.S. 234, 240, 54 S.Ct. 695, 697, 78 L.Ed. 1230 (1934) (“[C]ourts of bankruptcy are essentially courts of equity, and their proceedings inherently proceedings in equity.”); Pepper v. Litton, 308 U.S. 295, 304, 60 S.Ct. 238, 244, 84 L.Ed. 281 (1939); Securities & Exch. Comm’n v. United States Realty & Improvement Co., 310 U.S. 434, 455, 60 S.Ct. 1044, 1053, 84 L.Ed. 1293 (1940); Bank of Marin v. England, 385 U.S. 99, 103, 87 S.Ct. 274, 277, 17 L.Ed.2d 197 (1966) (“There is an overriding consideration that equitable principles govern the exercise of bankruptcy jurisdiction.”). However, a bankruptcy court does not have unfettered equity power to authorize it to make any decision which it deems to be “fair”. Norwest Bank Worthington v. Ahlers, — U.S. -, -, 108 S.Ct. 963, 968-69, 99 L.Ed.2d 169 (1988) (“[WJhatever equitable powers remain in the bankruptcy courts must and can only be exercised within the confines of the Bankruptcy Code.”); cf. In re Glenn, 760 F.2d 1428, 1440-41 (6th Cir.1985), cert. denied, 474 U.S. 849, 106 S.Ct. 144, 88 L.Ed.2d 119 (1985) (Section 105 should" }, { "docid": "6337690", "title": "", "text": "necessitate periodic cash payments. The ultimate meaning of the term will be developed on a case by case basis, in each instance with the relief being tailored to the fact situation. Finally, section 506(a) will simply operate to reinforce the existing rule to the effect that valueless junior secured positions or unsecured deficiency claims will not be entitled to adequate protection.” Collier on Bankruptcy 15th Ed., ¶ 362.07, pp. 362-47, 362 — 48. The bankruptcy court is essentially a court of equity and does not read “statutory words with the ease of a computer. There is an overriding consideration that equitable principles govern the exercise of bankruptcy jurisdiction.” Bank of Marin v. England, (1966) 385 U.S. 99, 87 S.Ct. 274, 17 L.Ed.2d 197. “A Court of bankruptcy is a court of equity seeking to administer the law according to its spirit and not merely by its letter.” Johnson v. Norris, 190 F. 459 (5th 1911). “Equitable principles are a guiding factor in all bankruptcy matters.” In re Atlas Sewing Centers, Inc., 437 F.2d 607, 615 (5th 1971). The purpose of straight bankruptcy under Chapter 7 is for a debtor to obtain a fresh start free from creditor harassment and free from the worries and pressures of too much debt (H.R., p. 125 and S.Rep., p. 6). This purpose of the Code continues the purpose often expressed in former decisions under the Act such as the following quote in In re Love, (5th 1978) 577 F.2d 344, 351 from Perez v. Campbell, 400 U.S. 818, 91 S.Ct. 71, 27 L.Ed.2d 45 (1971). “This Court on numerous occasions has stated that ‘[o]ne of the primary purposes of the bankruptcy act’ is give debtors ‘a new opportunity in life and a clear field for future effort, unhampered by the pressure and discouragement of preexisting debt.’ Local Loan Co. v. Hunt, 292 U.S. 234, 244 [54 S.Ct. 695, 699, 78 L.Ed. 1230] (1934). Accord, e. g., Harris v. Zion’s Savings Bank & Trust Co., 317 U.S. 447, 451 [63 S.Ct. 354, 357, 87 L.Ed. 390] (1943); Stellwagen v. Chum, 245 U.S. 605, 617 [38" }, { "docid": "5166242", "title": "", "text": "inequitable. The court there stated, “Yet we do not read these statutory words with the ease of a computer. There is an overriding consideration that equitable principles govern the exercise of bankruptcy jurisdiction.” Bank of Marin v. England, 385 U.S. 99, 103, 87 S.Ct. 274, 277, 17 L.Ed.2d 197 (1966). The court then reversed a judgment which held a bank liable for paying on a check drawn on the bankrupt’s account after the filing of a bankruptcy petition, when the bank had no notice of the bankruptcy. The trustee also attempts to distinguish the structure of the instant transactions from those to which the conduit defense clearly applies: simple checking transactions. To this end, he points to various differences: 1) the account contract granted Schwab a lien on funds and securities in the account to secure its payment for charges; 2) a bank’s ability to charge-back checks in the event of insufficient funds; 3) the “automatic” and “instant” payment through ATM debit cards as opposed to the somewhat longer time period involved here. These distinctions are not dispositive. The lien on account funds came into play only once (concerning the $800 overdraft) and thus is not pertinent to review. Too, this lien was part of the transaction establishing the account, which, as indicated, the parties have not attacked. Similarly, a bank’s charge-back capability would not have come into play as the account was functionally solvent as to all the charges made. And, finally, the timeliness of the clearing process is not material. Banks often take several days to clear the checking process. The trustee’s arguments all go to creating a creditor-debtor relationship between Schwab and the debtor. In reality, however, the type of account as created sought to avoid placing Schwab in a creditor position. Although Schwab was itself debited before debiting Dominion in response, these events in reality were computer file transfers which automatically transferred funds committed to Schwab by the debtor for the purpose of payment of the debits against Schwab by the bank for the debtor’s purchases. Thus, the intended and actual transfers ran from Dominion to" }, { "docid": "10235431", "title": "", "text": "pressure and discouragement of pre-existing debt.’ We refuse to make it a treacherous tightrope on which the slightest misstep spells disaster and over which only the most accomplished acrobat can successfully pass.” 490 F.2d at 457 (citing Local Loan Co. v. Hunt, 292 U.S. 234, 244, 54 S.Ct. 695, 699, 78 L.Ed. 1230 (1934)). In Bank of Marin v. England, 385 U.S. 99, 103, 87 S.Ct. 274, 277, 17 L.Ed.2d 197 (1966) the Court stated: “[y]et we do not read these statutory words [of the Bankruptcy Act] with the ease of a computer. There is an overriding consideration that equitable principles govern the exercise of bankruptcy jurisdiction.” Moreover, in Curtis v. Loether, 415 U.S. 189, 195, 94 S.Ct. 1005, 1009, 39 L.Ed.2d 260 (1974), the Supreme Court characterized the bankruptcy court as a “specialized court of equity.” Id. The principles underlying the “fresh start” concept, the bankruptcy court’s equitable powers exercised within the framework of the Bankruptcy Code, and applicable case law as applied to the totality of the relevant background facts here, all support a conclusion that the doctrine of collateral estoppel should not be applied in this particular proceeding to prevent the debtor from actually litigating on the merits the issues raised and alleged in BAF’s bankruptcy complaint pursuant to 11 U.S.C. § 523(a)(2), (4), and (6). Accordingly, BAF’s motion for summary judgment is denied. A trial on the merits will be scheduled after a final pretrial conference is conducted. Based on the foregoing findings and conclusions, IT IS HEREBY ORDERED that BAF’s motion for summary judgment is DENIED; and NOTICE IS HEREBY GIVEN that a final pre-trial conference in the underlying adversary proceeding is set for March 28, 1995 at 10:30 a.m. in Bankruptcy Courtroom No. 645, 200 Jefferson Avenue, Memphis, Tennessee. . 11 U.S.C. § 523(a)(2) provides in pertinent part here: (a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt— (2) for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by— (A) false pretenses, a" }, { "docid": "17726632", "title": "", "text": "the judgment for support that to allow its discharge would effectively prohibit an unwed mother from engaging legal counsel to pursue her rightful cause of action. The situation is analogous to divorce actions where it is well settled that attorney fees are nondischargeable. In re Porter, Bankr.L.Rep. (CCH) ¶ 64,575 (S.D.Ind.1971). Porter also held that hospital, medical, and blood test expenses should be nondischargeable “because they have the same legal characterizations and qualities as an allowance for support.” Id. Our analogy between a paternity suit and a divorce decree (for example) is based upon a similar sharing of legal characteristics. A later Indiana case, referring to attorneys’ fees in a divorce proceeding, said: “Such fees are a necessity for the indigent spouse in that court-supervised dissolution is the only legally recognized means of ending the marital relationship.” In re Knabe, supra, 8 B.R. at 57. Here, a paternity suit was the “only legally recognized means” of establishing the relationship between the father and the child, and obtaining support for the child. Its likeness to a separation agreement or divorce decree, for the purposes of dischargeability, cannot be disputed. A bankruptcy court is a court of equity. As such, “[W]e do not read these statutory words with the ease of a computer. There is an overriding consideration that equitable principles govern the exer cise of bankruptcy jurisdiction.” Bank of Marin v. England, 385 U.S. 99, 103, 87 S.Ct. 274, 277, 17 L.Ed.2d 197 (1966). We must follow “the well established principle of bankruptcy law that dischargeability must be determined by the substance of the liability rather than its form.” In re Spong, 661 F.2d 6, 9 (2d Cir.1981). As a debt the substance of which is child support, established in a state court paternity suit, we find this debt to be nondischargeable under 11 U.S.C. § 523(a)(5). Therefore, we DENY debtor’s motion for summary judgment herein, and GRANT the motion for summary judgment made by Phyllis Isenhower and John P. Wilson. SO ORDERED. . See n. 3 and accompanying text infra. . Cain, plaintiff in 1056 and defendant in 1059, is" }, { "docid": "4752368", "title": "", "text": "may not use 11 U.S.C. § 544 to defeat the debtor’s claim of homestead under C.C.P. § 690. They provide no conceptual basis for the position of investing the trustee with the § 674 lien. A bankruptcy estate consists of the debt- or’s property acquired by him prior to the date he files a petition in bankruptcy. Thereafter, the fundamental premise is that the debtor should be free to make a fresh start without having to apply future earnings or acquisitions (with limited exceptions) to pre-bankruptcy debt, 11 U.S.C. § 541(a)(6). The question is whether the trustee, by virtue of § 544, coupled with the C.C.P. § 674, can reach post-bankruptcy accruals of equity in property which the debt- or has declared exempt under California’s automatic dwelling house exemption. There is an inherent contradiction in allowing discharged creditors, by virtue of invoking § 544, to have access to the debt- or’s future earnings, as they become equity, or to the homestead itself should the debtor, years later, desire to leave it. The stay provisions of § 362, and the character of discharge as an injunction, 11 U.S.C. § 524(a), in order to serve such a fresh start would be subverted. The debtor, instead of having a fresh start, would have a homestead subject to doubt and uncertainty during the lifetime of the C.C.P. § 674(c) lien. Moreover, such a result would violate the spirit, if not the letter, of 11 U.S.C. § 522(c) which provides that property exempted under § 522 is not liable during or after the case for pre-bankruptcy debts. V. CONCLUSION Should the fiction of § 544 endow the claims of general creditors with the quality of a non-dischargeable debt? While fictions may be useful, they should not be employed to bring about a result which is so contrary to the fundamental fresh start policy of the Bankruptcy Code. There should be limits to literal application of language bringing about results so much at odds with the purpose and policy of rehabilitative legislation. As stated in Bank of Marin v. England, 385 U.S. 99, 103, 87 S.Ct." }, { "docid": "10241734", "title": "", "text": "and the Trustee here was not able to do so — “the Court, after notice and hearing, may authorize the obtaining of credit ... with priority over any or all administrative expenses.” But the courts “do not read these statutory words with the ease of a computer,” for there “is an overriding consideration that equitable principles goyern the exercise of bankruptcy jurisdiction.” Bank of Marin v. England, 385 U.S. 99, 103, 87 S.Ct. 274, 277, 17 L.Ed.2d 197 (1966); Pepper v. Litton, 308 U.S. 295, 304, 60 S.Ct. 238, 244, 84 L.Ed. 281 (1939). See also Katchen v. Landy, 382 U.S. 323, 327, 86 S.Ct. 467, 471, 15 L.Ed.2d 391 (1966). Bankruptcy courts “deal in a summary way with ‘matters of an administrative character, including questions between the bankrupt and his creditors ... in the ordinary course of the administration of the bankrupt’s estate.’ ” Katchen v. Landy, 382 U.S. at 327, 86 S.Ct. at 471, quoting Taylor v. Voss, 271 U.S. 176, 181 (1926). The essence of equity is the power to do equity. It is a blend of what is fair and what is just. Flexibility, rather than rigidity, has distinguished it. “In equity, as nowhere else, courts ... look to the practical realities and necessities inescapably involved in reconciling competing interests ...” Lemon v. Kurtzman, 411 U.S. 192, 201, 93 S.Ct. 1463, 1469, 36 L.Ed.2d 151 (1973). Giving “overriding consideration that equitable principles govern the exercise of bankruptcy jurisdiction,” is “enough to indicate why it would be inequitable” to deny Grant the preference which has been granted to him and to which he is entitled. Bank of Marin v. England, supra, 385 U.S. at 103, 87 S.Ct. at 277. Likewise, it would be, indeed, unjust to fail to allow Grant the priority, for it would be an unjust enrichment to the others having administrative expenses and other claims. Spring Construction Company, Inc. v. Harris, 614 F.2d 374, 378 (4th Cir.1980). A. Viewing the right to grant priority, and the action in granting it as an equitable matter, the Court turns to whether the failure to give notice" }, { "docid": "22360902", "title": "", "text": "and, in light of the foregoing analysis, may be defined as a good faith effort to make meaningful payment to holders of unsecured claims. By necessity, such a good faith effort must be interpreted equitably and flexibly. The following factors may be considered in determining whether a good faith effort to make meaningful payment to holders of unsecured claims has been made: 1. The budget of the debtor, i. e., how much the debtor feasibly can pay. 2. The future income and payment prospects of the debtor. 3. The dollar amount of debts outstanding, and the proposed percentage of repayment. 4. The nature of the debts sought to be discharged; specifically, to what extent the debtor is invoking the advantage of the broader Chapter 13 discharge which may carry with it concomitant obligations of repayment effort. As seems intended by the flexible standard of “good faith,” discretion is to be left with the court to insure that all parties are treated fairly. The “good faith” re- quirement must be applied in light of the intent of Congress to increase both the availability of Chapter 13 relief and the repayment received by creditors. A proposal of meaningful repayment must be made, in light of the debtor’s particular circumstances, even, when, as in these cases, all of the debtor’s assets are exempt. If no meaningful repayment can be proposed, the debtor is not entitled to Chapter 13 relief. This flexible, equitable standard of Section 1325(a)(3) is not foreign to the bankruptcy law. As aptly stated by Justice Douglas in Bank of Marin v. England, 385 U.S. 99, 103, 87 S.Ct. 274, 277, 17 L.Ed.2d 197 (1966), in a similar context: Yet we do not read these statutory words with the ease of a computer. There is an overriding consideration that equitable principles govern the exercise of bankruptcy jurisdiction. The Court’s interpretation of “good faith” as used in Chapter 13 follows no traditional bankruptcy meaning of the phrase; neither is this interpretation meant to apply nor can it logically extend, to any similar phrase elsewhere in the law. The Court’s interpretation of the" }, { "docid": "4752370", "title": "", "text": "274, 277, 17 L.Ed.2d 197 (1966) (1966) Yet we do not read these statutory words with the ease of a computer. There is an overriding consideration that equitable principles govern the exercise of bankruptcy jurisdiction. See also Lewis v. Manufacturer’s Trust, 364 U.S. 603, 608, 81 S.Ct. 347, 350, 5 L.Ed.2d 323 (1961) which refused to allow the application of § 70(c) to a point anterior in time where no creditor could have existed, stating: The construction of § 70c which petitioner urges would give the trustee the power to set aside transactions which no creditor could void and which injured no creditor. That construction would enrich unsecured creditors at the expense of secured creditors, creating a windfall merely by reason of the happenstance of bankruptcy. The substance and spirit of this language should preclude the trustee from employing the fiction of 11 U.S.C. § 544 to deny or limit the homestead, thereby creating a windfall for discharged general creditors. For the foregoing reasons I would hold that the trustee may not invoke or clothe himself with the judgment lien of C.C.P. § 674(c) and would therefore reverse. . Sampsell v. Straub, supra, permitted such a result. That case held that the trustee, standing as a judgment creditor under § 70(c), defeated the debtor’s homestead since the debtor filed his declaration of homestead after he filed his bankruptcy petition. The effect of Samp-sell in California is considerably attenuated under the Bankruptcy Code since a claim, directly impairing the exemption, is subject to avoidance by virtue of 11 U.S.C. § 522(f). In re Baxter, 19 B.R. 674 (Bkrtcy.App. 9th Cir. 1982). . Section 541(a)(6) states what is in the estate, with an exception: “(6) Proceeds, product, offspring, rents, and profits of or from property of the estate, except such as are earnings from services performed by an individual debtor añer the commencement of the case.” (Emph. supp.) While the dissent professes to preclude access by the trustee to post-bankruptcy accruals in equity, its water bottle analogy suggests a contrary result. It would hold that the post-bankruptcy equity accruals would cause the" }, { "docid": "14824404", "title": "", "text": "tests that debts for fines, penalties and forfeitures must satisfy: (1) they must be “payable to and for the benefit of a governmental unit”, and (2) they must not be “compensation for actual pecuniary loss”. In Robinson, the United States Supreme Court held that, due to their law enforcement character, criminal restitution judgments qualify as “fines” that are not debts for “actual pecuniary loss”. 479 U.S. at-, 107 S.Ct. at 361. The Robinson dissenters parted company with the majority in concluding that criminal restitution is intended as compensation for the victim’s pecuniary loss. As such, the dissenters would exclude restitution from automatic exception to discharge under Section 523(a)(7). In their view, although Connecticut’s debt might well have been determined nondischargeable under other subsections of Section 523, failure to file the requisite complaint to determine nondischargeability meant that the restitution claim must be discharged. Cf. In re Heincy, 58 B.R. 930 (Bankr.S.D.Cal.1986) (Holding that a criminal restitution order was a debt, the bankruptcy court enjoined California from enforcing the restitution order during the pendency of the chapter 13 case, because the debt was provided for in the plan and the State had not timely objected to its discharge); Cf. In re Johnson-Allen, 69 B.R. 461 (Bankr.E.D.Pa.1987) (Criminal restitution obligations are “debts” dischargeable under chapter 13 plans.) The question presented here is whether a government's civil restitution award based upon a finding of fraud is automatically nondischargeable under this section, or whether it should be subject, like civil fraud judgments obtained by any other creditors, to prove-up under the standard of Section 523(a)(2). In determining if Section 523(a)(7) of the Bankruptcy Code should be interpreted broadly to include civil restitution, this Court is guided by the rule of construction stated so well by Justice Douglas: “ ‘We do not read these statutory words with the ease of a computer. There is an overriding consideration that equitable principles govern the exercise of bankruptcy jurisdiction.’” Bank of Marin v. England, 385 U.S. 99, 103, 87 S.Ct. 274, 277, 17 L.Ed.2d 197 (1966). On the one hand, Congress has recognized the special importance of civil" }, { "docid": "14863158", "title": "", "text": "adequate showing is made to justify the nunc pro tunc approval of the attorney’s employment, the district court stated: A review of the case law supports appellant’s argument that a nunc pro tunc order is not forbidden under the facts here presented. The Supreme Court has recognized the “overriding consideration that equitable principles govern the exercise of bankruptcy jurisdiction.” Marin v. Bank of England, 385 U.S. 99, 103, 87 S.Ct. 274, 277, 17 L.Ed.2d 197 (1966). The bankruptcy judge gave no reason for the denial of the order. Neither the Creditors’ Committee nor the Trustee has shown any prejudice that would result from entry of the order. Indeed, no reason for withholding equity has been advanced by anyone other than that the application was not timely. Additionally, because the Bankruptcy Court has full control over the allowance of fees, there is here no chance of overreaching through unnecessary or improper activity of counsel either before or after formal employment. Considering these factors, especially the failure to disclose any reason therefor, the Court holds that the refusal to enter the order nunc pro tunc was an abuse of discretion. 19 B.R. at 663. Nunc Pro Tunc Order Permissible Under Equity Powers For reasons similar to those immediately above quoted from In re King, we will vacate the order of the bankruptcy judge herein. So far as we can ascertain, the issue of the propriety of a nunc pro tunc order has never arisen in this circuit. However, a bankruptcy court exercises powers of a court of equity, 28 U.S.C. § 1481 (1978), and equitable principles govern the exercise of its jurisdiction. Bank of Marin v. England, 388 U.S. 99, 103, 87 S.Ct. 274, 277, 17 L.Ed.2d 197 (1966); 1 Collier on Bankruptcy, ¶ 3.01[5][b][ii] (15th ed. 1982). A familiar principle of equity, utilized by the Supreme Court in rejecting an attempt (founded on arguments generically similar to those now before us) to restrict the admiralty court’s equitable allowance of wharfage expenses of a vessel under custodial seizure, is that services or property furnished “for the common benefit of those interested in" }, { "docid": "4752369", "title": "", "text": "§ 362, and the character of discharge as an injunction, 11 U.S.C. § 524(a), in order to serve such a fresh start would be subverted. The debtor, instead of having a fresh start, would have a homestead subject to doubt and uncertainty during the lifetime of the C.C.P. § 674(c) lien. Moreover, such a result would violate the spirit, if not the letter, of 11 U.S.C. § 522(c) which provides that property exempted under § 522 is not liable during or after the case for pre-bankruptcy debts. V. CONCLUSION Should the fiction of § 544 endow the claims of general creditors with the quality of a non-dischargeable debt? While fictions may be useful, they should not be employed to bring about a result which is so contrary to the fundamental fresh start policy of the Bankruptcy Code. There should be limits to literal application of language bringing about results so much at odds with the purpose and policy of rehabilitative legislation. As stated in Bank of Marin v. England, 385 U.S. 99, 103, 87 S.Ct. 274, 277, 17 L.Ed.2d 197 (1966) (1966) Yet we do not read these statutory words with the ease of a computer. There is an overriding consideration that equitable principles govern the exercise of bankruptcy jurisdiction. See also Lewis v. Manufacturer’s Trust, 364 U.S. 603, 608, 81 S.Ct. 347, 350, 5 L.Ed.2d 323 (1961) which refused to allow the application of § 70(c) to a point anterior in time where no creditor could have existed, stating: The construction of § 70c which petitioner urges would give the trustee the power to set aside transactions which no creditor could void and which injured no creditor. That construction would enrich unsecured creditors at the expense of secured creditors, creating a windfall merely by reason of the happenstance of bankruptcy. The substance and spirit of this language should preclude the trustee from employing the fiction of 11 U.S.C. § 544 to deny or limit the homestead, thereby creating a windfall for discharged general creditors. For the foregoing reasons I would hold that the trustee may not invoke or clothe" }, { "docid": "14865164", "title": "", "text": "the bankruptcy code is the recognition that a bankruptcy court is a court of equity. Bankruptcy courts do not read statutory words with a computer’s ease, but operate under the overriding consideration that equitable principles govern the exercise of bankruptcy jurisdiction. In re Williams, 7 B.R. 234, 236 (Bankr.M.D.Ga. 1980), (quoting Bank of Marin v. England, 385 U.S. 99, 103, 87 S.Ct. 274, 277, 17 L.Ed.2d 197 (1966)). As we noted in Martin: Under Chapter 11, the purposes of business reorganization are to “relieve the debtor of its prepetition debts, to free cash flow to meet current operating expenses, and ultimately to permit the debtor ‘to restructure a business’s finances so that it may continue to operate, provide its employees with jobs, pay its creditors, and produce a return for its stockholders.’ ” American Mariner, 734 F.2d at 431 (quoting H.R.Rep. No. 595 at 220, 1978 U.S.Code Cong. & Ad. News at 6179). The filing of a Chapter 11 petition operates as an automatic stay, which prevents creditors from enforcing their liens against the property of the bankruptcy estate and removing collateral that may be essential to the reorganization plan. 11 U.S.C. § 362(a). Martin, 761 F.2d at 475. The automatic stay is clearly designed to afford a debtor a “breathing spell” free from actions by creditors against the petitioner’s estate. In re Mellor, 734 F.2d 1396, 1399 (9th Cir.1984). The stay also shields creditors from each other and is intended to aid in equitably distributing the debtor’s assets in a way that maximizes the interests of all parties. It is interim protection for secured creditors and “designed not as a purgative of all creditor ailments but as a palliative of the worst: reorganization, dismissal or liquidation will provide the final relief.” In re Alyucan Interstate Corp., 12 B.R. 803, 806 (Bankr.D.Utah 1981). In Yamaha Motor Corp. U.S.A. v. Shad-co, Inc., 762 F.2d 668 (8th Cir.1985), this court recognized that courts are divided on the issue whether compensation for post-petition interest is within the proper scope of adequate protection during an automatic stay. See Yamaha, 762 F.2d at 670. A" }, { "docid": "14865163", "title": "", "text": "5787, 5835); Matter of Alexander, 48 B.R. 110, 114-18 (Bankr.W.D.Mo. 1985). In a constitutional sense, this temporary suspension of lien enforcement breaches no essential property interest of the creditor and is not an unlawful taking under the Fifth Amendment. We turn now to the undersecured creditors’ characterization of section 362’s automatic stay as an “extraordinary remedy.” Rather, as the report of the Senate Judiciary Committee states, “[t]he automatic stay is one of the fundamental debtor protections provided by the bankruptcy laws.” S.Rep. No. 989 at 54, 1978 U.S.Code Cong. & Ad.News at 5840. It is automatic upon a petition’s filing and may last at least thirty days without affording creditors any protection. 11 U.S.C. section 362(e). Further, a secured creditor may avoid incurring substantial economic penalties due to undue delay in access to its assets by requesting relief from an automatic stay for cause, including the lack of adequate protection of the creditor’s interest in the property. 11 U.S.C. § 362(d). Essential to any analysis of the meaning of and policy behind any section of the bankruptcy code is the recognition that a bankruptcy court is a court of equity. Bankruptcy courts do not read statutory words with a computer’s ease, but operate under the overriding consideration that equitable principles govern the exercise of bankruptcy jurisdiction. In re Williams, 7 B.R. 234, 236 (Bankr.M.D.Ga. 1980), (quoting Bank of Marin v. England, 385 U.S. 99, 103, 87 S.Ct. 274, 277, 17 L.Ed.2d 197 (1966)). As we noted in Martin: Under Chapter 11, the purposes of business reorganization are to “relieve the debtor of its prepetition debts, to free cash flow to meet current operating expenses, and ultimately to permit the debtor ‘to restructure a business’s finances so that it may continue to operate, provide its employees with jobs, pay its creditors, and produce a return for its stockholders.’ ” American Mariner, 734 F.2d at 431 (quoting H.R.Rep. No. 595 at 220, 1978 U.S.Code Cong. & Ad. News at 6179). The filing of a Chapter 11 petition operates as an automatic stay, which prevents creditors from enforcing their liens against the property" }, { "docid": "23696712", "title": "", "text": "the debtor’s property against the abstract standard of the hypothetical judgment creditor as if the trustee were of this character. See, In re Weiman, 22 B.R. 49 (Bkrtcy.App. 9th Cir.1982); Caplinger v. Patty, 398 F.2d 471, 475 (8th Cir.1968) (which dealt with the marshaling issue before us). If the transfer or claim failed this test, the trustee would take, free of the defective claim or use it for the benefit of the general creditors, thereby effectuating a fundamental bankruptcy policy — defeasance of secret, undisclosed, or unperfected claims so as to bring about equality of distribution among creditors. Here, insofar as § 544 is concerned, Wells Fargo does not have an undisclosed or imperfect claim which is defeasible by a judgment creditor. It is a valid, perfected claim. Invocation of § 544 is therefore inappropriate. The case of Lewis v. Manufacturer’s Bank of Detroit, 364 U.S. 603, 81 S.Ct. 347, 5 L.Ed.2d 323 (1961), is pertinent. In refusing to allow the trustee to reach back to a point anterior to the filing of bankruptcy, in order to claim imperfection, and recognizing that “in some instances the trustee has rights which existing creditors may not have”, the court stated: “The construction of § 70e which petitioner urges would give the trustee power to set aside transactions which no creditor could void and which injured no creditor. That construction would enrich unsecured creditors at the expense of secured creditors, creating a windfall merely by reason of the happenstance of bankruptcy.” 364 U.S. at 608, 81 S.Ct. at 350. The applicability of § 70(c) to the specific issue before us was clearly before the court in the case of In re Forester, 529 F.2d 310, (9th Cir.1976) which dealt with the California marshaling statutes in question, Cal.Civ. Code, §§ 2899 and 3433. Forester, essentially, held that the trustee would be no more entitled to marshaling than the debtor. It noted, in passing that “There would be no injustice to others since Forester did not have a justifiable expectation that his collateral security would return to him after he defaulted on his loans; the" }, { "docid": "17142618", "title": "", "text": "102 S.Ct. 3245, 3250, 73 L.Ed.2d 973 (1982)). The statutory language of Section 727(a)(2)(A) is sufficiently plain. The statute specifically authorizes denial of discharge if the debtor “transferred” property within one year prior to the date of filing the bankruptcy petition; it does not qualify this provision ■with a clause to the effect that transferred property must remain transferred. See 11 U.S.C. § 727(a)(2)(A). The Bankruptcy Code, moreover, defines the term “transfer” broadly as “every mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with property or with an interest in property.” 11 U.S.C. § 101(54). Although the legislative history offers no guidance in interpreting “transfer” in the context of Section 727(a)(2)(A), the legislative history of Section 101(54), which defines “transfer,” explains that “[t]he definition of transfer is as broad as possible.” S.Rep. No. 989, 95th Cong. 27 (1978), reprinted, in 1978 U.S.C.C.A.N. 5787, 5813; H.R.Rep. No. 595, 95th Cong. 314 (1977). Limiting the definition of “transferred” to “transferred and remained transferred,” in fact, would contradict the drafters’ intent. In support of his position, Bajgar recites Justice Douglas’ admonition that courts “do not read ... statutory words with the ease of a computer. There is an overriding consideration that equitable principles govern the exercise of bankruptcy jurisdiction.” Bank of Marin v. England, 385 U.S. 99, 103, 87 S.Ct. 274, 277, 17 L.Ed.2d 197 (1966). This recitation, however, is misplaced in-this case. Bank of Marin addressed the issue of whether or not “the payment by the drawee of a drawer bankrupt’s checks after the date of th[e] filing [in bankruptcy] is a ‘transfer’ within the meaning of [repealed 11 U.S.C. § 110(d)(5) ].” Id. at 102, 87 S.Ct. at 277. The Court determined “it would be inequitable to hold liable a drawee who pays checks of the bankrupt duly drawn but presented after bankruptcy, where no actual revocation of its authority has been made and it has not notice or knowledge of the bankruptcy.” Id. at 103, 87 S.Ct. at 277. Although Congress “has legislated the exception [that the Marin Court articulated with respect to" }, { "docid": "22728838", "title": "", "text": "re Shebel, 54 B.R. 199, 202 (Bankr.D.Vt.1985), but “once it reasonably appears that the oath is false, the burden falls upon the bankrupt to come forward with evidence that he has not committed the offense charged.” Matter of Mascolo, 505 F.2d 274, 276 (1st Cir.1974). The statute, by its very nature, invokes competing considerations. On the one hand, bankruptcy is an essentially equitable remedy. As the Court has said, it is an “overriding consideration that equitable principles govern the exercise of bankruptcy jurisdiction.” Bank of Marin v. England, 385 U.S. 99, 103, 87 S.Ct. 274, 277, 17 L.Ed.2d 197 (1966). In that vein, the statutory right to a discharge should ordinarily be construed liberally in favor of the debtor. Matter of Vickers, 577 F.2d 683, 687 (10th Cir.1978); In re Leichter, 197 F.2d 955, 959 (3d Cir.1952), cert. denied, 344 U.S. 914, 73 S.Ct. 336, 97 L.Ed. 705 (1953); Roberts v. W.P. Ford & Son, Inc., 169 F.2d 151, 152 (4th Cir.1948). “The reasons for denying a discharge to a bankrupt must be real and substantial, not merely technical and conjectural.” Dilworth v. Boothe, 69 F.2d 621, 624 (5th Cir.1934). On the other hand, the very purpose of certain sections of the law, like 11 U.S.C. § 727(a)(4)(A), is to make certain that those who seek the shelter of the bankruptcy code do not play fast and loose with their assets or with the reality of their affairs. The statutes are designed to insure that complete, truthful, and reliable information is put forward at the outset of the proceedings, so that decisions can be made by the parties in interest based on fact rather than fiction. As we have stated, “[t]he successful functioning of the bankruptcy act hinges both upon the bankrupt’s veracity and his willingness to make a full disclosure.” Mascolo, 505 F.2d at 278. Neither the trustee nor the creditors should be required to engage in a laborious tug-of-war to drag the simple truth into the glare of daylight. See In re Tabibian, 289 F.2d 793, 797 (2d Cir.1961); In re Shebel, 54 B.R. at 202. The bankruptcy" }, { "docid": "22946977", "title": "", "text": "a case of a creditor complaining about noncomplianee with General Order 44 but that of the debtor himself who retained the attorney initially and throughout and who would be the only one to profit if the fees were completely disallowed. Interim fees were allowed but Stolkin did not conceive the necessity of hiring another counsel to oppose these nor indeed did he object to them until his appeal. Certainly from the record the original referee and his successor proceeded in dealing with Nachman as though there had been no question of compliance with General Order 44. If we were to take the position that Nachman was blocked from any claim for compensation for his services in these far from easy proceedings, we would have a formalistic but meaningless adherence to the General Order 44 and would be ignoring the words of the Supreme Court in Bank of Marin v. England, 385 U.S. 99, 103, 87 S.Ct. 274, 277, 17 L.Ed.2d 197 (1966): “Yet we do not read these statutory words [of the Bankruptcy Act] with the ease of a computer. There is an overriding consideration that equitable principles govern the exercise of bankruptcy jurisdiction.” The contention directed towards Manos takes a different twist but is also based on General Order 44 and Local Rule 13. As we view it, it is merely another manifestation of Stolkin’s belated efforts, now that the Chapter XI proceedings have been completed, to avoid payment of appropriate and proper fees. A petition for appointment was filed in the case of Manos. However, the objections are made that it was not verified and that it did not advise the referee that Manos had represented a secured creditor “at an earlier stage of the proceedings.” Further, it did not indicate what estimated probable expense and financial benefits to the estate would accrue as a result of the attorney’s appointment and it did not provide the factual showing of the necessity for a general retainer. Again, we find it difficult to conceive that the referee felt any necessity for the recital of the obvious. This contention with regard" }, { "docid": "18599601", "title": "", "text": "the bankruptcy court, in the exercise of its equity owers, merely declared the amount of attorneys’ fees which could be properly authorized under 11 U.S.C. § 506(b), and declared that Allied Bank would be authorized to purchase the mortgage. The power of the bankruptcy court to enter declaratory relief fashioned to the needs of the parties and subject to review by the district court is clear. See, In re Spencer, 7 B.R. 458 (Bankr.S.D.Calif.1980); 1 Collier on Bankruptcy ¶ 3.01[10] (1985). See also, Bank of Marin v. England, 385 U.S. 99, 103, 87 S.Ct. 274, 277, 17 L.Ed.2d 197 (1966) (“There is an overriding consideration that equitable principles govern the exercise of bankruptcy jurisdiction.”); In re Multiponics, Inc., 622 F.2d 709, 721 (5th Cir.1980). That Blackburn-Bliss decided to sell its mortgage to Allied Bank three days after the automatic stay had been lifted, rather than foreclose, which it clearly had the power to do at that moment, was its own choice and does not affect the jurisdiction of the bankruptcy court. Accordingly, we sustain the exercise of jurisdiction by the bankruptcy court in this case. II. THE SUBSTANTIVE LAW TO BE APPLIED: MISSISSIPPI OR FEDERAL? We must next determine whether the bankruptcy court erred in applying federal law to arrive at a determination of reasonable attorneys’ fees under 11 U.S.C. § 506(b). Blackburn-Bliss contends that state law governs the enforcement of attorneys’ fee provisions in connection with secured claims in bankruptcy. While this Court has not yet squarely faced the issue, we do agree with the recent decisions of the Fourth and Ninth Circuits in Unsecured Creditors’ Committee v. Walter R. Heller & Company Southeast, Inc., 768 F.2d 580 (4th Cir.1985), and In re 268 Limited, 789 F.2d 674 (9th Cir.1986), and we hold that federal law applies. Heller provides an exhaustive analysis of the legislative history of 11 U.S.C. § 506(b), and concludes that Congress intended that federal law should govern the enforcement of attorneys’ fees provisions, notwithstanding contrary state law. The Fourth Circuit notes that originally the House and Senate versions of § 506(b) differed. The House version" }, { "docid": "14824405", "title": "", "text": "chapter 13 case, because the debt was provided for in the plan and the State had not timely objected to its discharge); Cf. In re Johnson-Allen, 69 B.R. 461 (Bankr.E.D.Pa.1987) (Criminal restitution obligations are “debts” dischargeable under chapter 13 plans.) The question presented here is whether a government's civil restitution award based upon a finding of fraud is automatically nondischargeable under this section, or whether it should be subject, like civil fraud judgments obtained by any other creditors, to prove-up under the standard of Section 523(a)(2). In determining if Section 523(a)(7) of the Bankruptcy Code should be interpreted broadly to include civil restitution, this Court is guided by the rule of construction stated so well by Justice Douglas: “ ‘We do not read these statutory words with the ease of a computer. There is an overriding consideration that equitable principles govern the exercise of bankruptcy jurisdiction.’” Bank of Marin v. England, 385 U.S. 99, 103, 87 S.Ct. 274, 277, 17 L.Ed.2d 197 (1966). On the one hand, Congress has recognized the special importance of civil law enforcement in exempting from the automatic stay provisions of the Bankruptcy Code not only state criminal proceedings, but also “the commencement or condition of an action or proceeding by a governmental unit to enforcement such governmental unit’s police or regulatory power.” 11 U.S.C. § 362(b)(4). On the other hand, a significantly different standard of proof is required in civil law enforcement and regulatory actions, than in criminal matters. Moreover, a determination of civil liability is not necessarily predicated upon the same kind of findings of intent and wrongful conduct as would be essential to criminal liability. Examination of the statutory enforcement scheme at issue here demonstrates that the restitution remedy serves two goals: deterrence and compensation of victims. A state suit for violation of California’s consumer protection statutes “is fundamentally a law enforcement action designed to protect the public and not to benefit private parties.” People v. Pacific Land Research Co., supra, 20 Cal.3d at 17, 141 Cal.Rptr. at 24, 569 P.2d at 129. Any request for restitution in such an action is only" } ]

[ { "docid": "22297138", "title": "", "text": "Loyalists. On August 3, 2004, the BIA denied the motion to reopen on the basis that it was filed more than 90 days after the November 17, 2003, order of the BIA, denying them asylum. The BIA fur ther held that the motion to reopen did not fall within any of the exceptions to the timely filing of motions to reopen because Nicola and Sean had not demonstrated prima facie eligibility for asylum. See 8 U.S.C. § 1229a(c)(7)(C)(ii). On September 16, 2004, Nicola and Sean filed a petition for review of the BIA’s denial. Because the petition for review was filed more than thirty days after the BIA’s August 4, 2004, final order, the petition was untimely. Thus, we lack jurisdiction to review this decision by the BIA, and we will dismiss Nicola and Sean’s appeals. See 8 U.S.C. § 1252(b)(1). See also Navarro-Miranda v. Ashcroft, 330 F.3d 672, 676 (5th Cir.2003) (applying the thirty-day deadline of § 1252(b)(1) to a petition for review of a motion to reopen). D. Paul Gary On March 17, 2004, the BIA remanded Paul Gary’s case to the Immigration Court so that he could apply for adjustment of status. Pursuant to 8 U.S.C. § 1252(d)(1), we no longer have jurisdiction to review his claims. Therefore, we will dismiss Paul Gary’s claim for lack of jurisdiction. IV. Standard of Review We now turn to the substance of Malachy’s petition. We review the BIA’s findings of fact to determine whether substantial evidence supports them. See Singh-Kaur v. Ashcroft, 385 F.3d 293, 296 (3d Cir.2004). We will only reverse the BIA’s findings “if the evidence compels a contrary conclusion.” Ahmed v. Ashcroft, 341 F.3d 214, 216 (3d Cir.2003) (citing INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)). We give de novo review to constitutional claims. See Chong v. District Director, INS, 264 F.3d 378, 386 (3d Cir.2001). We review the BIA’s interpretation of the INA to determine whether it is “arbitrary, capricious or manifestly contrary to the statute.” See Ahmed, 341 F.3d at 217 (quoting Chevron, U.S.A., Inc. v." } ]

[ { "docid": "23543049", "title": "", "text": "country conditions and had not demonstrated a prima facie case for CAT relief. Zhu thereafter filed a petition for review. II. The BIA had jurisdiction under 8 C.F.R. § 1003.2 to review Zhu’s motion to reopen, and we have jurisdiction to review the BIA’s decision pursuant to 8 U.S.C. § 1252(a)(1). We review the denial of a motion to reopen for an abuse of discretion. Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir.2004) Thus, the BIA’s ultimate decision is entitled to “broad deference,” Ezeagwuna v. Ashcroft, 325 F.3d 396, 409 (3d Cir.2003) (internal quotation marks omitted), and “will not be disturbed unless [it is] found to be arbitrary, irrational, or contrary to law.” Guo, 386 F.3d at 562 (internal quotation marks and citation omitted). Similarly, we review the BIA’s evidentiary rulings deferentially. See Cheng v. Att’y Gen., 623 F.3d 175, 182 (3d Cir.2010). III. With limited exceptions, a motion to reopen must be filed within ninety days of the date of entry of a final administrative order. 8 C.F.R. § 1003.2(c)(2). To obtain relief based on an untimely motion to reopen, Zhu had to provide material evidence of changed conditions in China that could not have been discovered or presented during the previous proceeding. See 8 C.F.R. § 1003.2(c)(3)(h). Here, the BIA denied Zhu’s motion to reopen her removal proceedings because it found: (1) “[h]er evidence is not sufficient to establish a material change in circumstances or country conditions ‘arising in the country of nationality’ so as to create an exception to the time and number limitations for filing another late motion to reopen to apply for asylum,” and (2) she “has not demonstrated a prima facie case for protection under [CAT].” App. 6. To determine if the BIA abused its discretion in finding that Zhu did not present evidence to establish a material change in country conditions, we must determine if the BIA meaningfully considered the evidence and arguments Zhu presented. Zheng v. Att’y Gen., 549 F.3d 260, 266 (3d Cir.2008). This does not mean that the BIA is required to expressly parse each point or discuss each" }, { "docid": "22351359", "title": "", "text": "the denial of the motion to reopen. In December 2000, Mahmood’s counsel appealed the May 1999 order to the BIA, and it dismissed the appeal as untimely in June 2001. Mahmood retained new counsel and filed his third motion to reopen in July 2002, alleging ineffective assistance of counsel and seeking an adjustment of status in light of an approved 1-130 petition filed by Karen Mahmood (née Zimmerman), who had married Mahmood in April 2001. The IJ denied the motion in September 2002 on the ground that it had been filed over three years after the IJ issued the in absentia order (that was the subject of the second motion to reopen), and thus long after the applicable time limits for moving to reopen had passed. The BIA dismissed Mahmood’s second appeal in August 2003, and he timely petitioned for our Court’s review. II. Standard of Review We review a final order of the BIA denying a motion to reopen for abuse of discretion. Cf. INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992). Review of the BIA’s legal conclusions is de novo, with appropriate deference to the agency’s interpretation of the underlying statute in accordance with administrative law principles. Wang v. Ashcroft, 368 F.3d 347, 349 (3d Cir.2004) (citing Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). Findings of fact may not be disturbed if supported by substantial evidence. See 8 U.S.C. § 1252(b)(4)(B); Dia v. Ashcroft, 353 F.3d 228, 247 (3d Cir.2003) (en banc). III. Discussion A. Equitable Tolling and Ineffectiveness of Counsel Generally, a motion to reopen must be filed within 90 days of the date of entry of a final administrative order of removal. 8 U.S.C. § 1229a(c)(7)(C)(i). With respect to in absentia orders of removal, an alien has 180 days to file a motion to reopen that seeks to demonstrate that the failure to appear was because of “exceptional circumstances.” 8 U.S.C. § 1229a(b)(5)(C)(i). The BIA concluded that Mahmood’s motion was untimely under both deadlines. When this petition" }, { "docid": "22339310", "title": "", "text": "country condition and that his position as a former local leader of the Jatiya Party made it likely that he would be persecuted if returned to Bangladesh. The Board denied his motion to reopen in a three-paragraph order, which concluded that Shardar had “not adequately demonstrated that his situation is appreciably different from the dangers faced by all his countrymen,” and that he had “failed, to establish [that] materially changed country conditions exist in Bangladesh.” Shardar filed a timely petition for review of the Board’s order. II. Jurisdiction and Standard of Review The BIA has jurisdiction over motions to. reopen removal proceedings under 8 C.F.R. § 1003.2(a). Our Court has jurisdiction over Shardar’s petition for review under 8 U.S.C. § 1252. Cruz v. Att’y Gen., 452 F.3d 240, 246 (3d Cir.2006) (“Congress has explicitly granted federal courts the power to review ‘any final order of removal’ under 8 U.S.C. § 1252(a)(1). Implicit in this jurisdictional grant is the authority to review the denial of a motion to reopen any such final order.”). “We review the BIA’s denial of a motion to reopen for abuse of discretion ... and review its underlying factual findings related to the motion for substantial evidence.” Filja v. Gonzales, 447 F.3d 241, 251 (3d Cir.2006) (internal citation omitted). Its “denial of a motion to reopen may only be reversed if it is ‘arbitrary, irrational, or contrary to law.’ ” Id. (quot ing Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir.2002)). III. Discussion A. Introduction The resolution of this appeal turns on two related but analytically distinct issues: (1) whether Shardar has presented evidence of changed country conditions sufficient to allow him to file a motion to reopen more than 90 days after the Board rejected his claims; and (2) whether the new evidence Shardar has presented and the prior evidence in the record together show that he has a reasonable likelihood of prevailing on his asylum claim, ie., whether he has presented a prima facie case for ' asylum. The first is a threshold question: does the new evidence show a change in country conditions" }, { "docid": "20383076", "title": "", "text": "BALDOCK, Circuit Judge. Petitioner Eddie Mendiola petitions this Court to review the Board of Immigration Appeals’ (BIA or Board) denial of his second motion to reopen his removal proceedings. As a threshold matter, Petitioner argues the BIA erred in holding that 8 C.F.R. § 1003.2(d) proscribed its jurisdiction to entertain his motion to reopen. Section 1003.2(d) provides: A motion to reopen or a motion to reconsider [before the BIA] shall not be made by or on behalf of a person who is the subject of exclusion, deportation, or removal proceedings subsequent to his or her departure from the United States. Any departure from the United States, including the deportation or removal of a person who is the subject of exclusion, deportation, or removal proceedings, occurring after the filing of a motion to reopen or a motion to reconsider, shall constitute a withdrawal of such motion. See also 8 C.F.R. § 1003.23(b)(1) (containing an identical post-departure bar to motions to reopen or reconsider before an immigration judge). Petitioner further contends that, in light of his former attorney’s alleged ineffectiveness, the BIA erred in declining to equitably toll the time and numerical limits on his motion to reopen his removal proceedings found in 8 C.F.R. § 1003.2(c)(2). Section 1003.2(c)(2) provides: “[A]n alien may file only one motion to reopen removal proceedings (whether before the Board or the Immigration Judge) and that motion must be filed no later than 90 days after the date on which the final administrative decision was rendered in the proceeding sought to be reopened.” We have jurisdiction over the petition under 8 U.S.C. § 1252(a)(2)(D), which preserves our power to decide “constitutional claims or questions of law raised upon a petition for review.” The questions Petitioner raises in this petition are purely legal in nature and, therefore, fit comfortably within the confines of § 1252(a)(2)(D). Our review is de novo. Lorenzo v. Mukasey, 508 F.3d 1278, 1282 (10th Cir.2007). We conclude that we are bound by our recent precedent in Rosillo-Puga v. Holder, 580 F.3d 1147 (10th Cir.2009), and we therefore deny the petition for review. I. Petitioner" }, { "docid": "23158638", "title": "", "text": "of the notice. On this point, the BIA stated: Finally, while [Petitioner] asserts that her relatives forwarded all her mail to her in Florida, but did not forward the Notice of Hearing, she has failed to provide an affidavit from them so stating. This Petition for Review timely followed. The Petition, among other things, sought a reversal of the BIA’s order, an order rescinding and reopening removal proceedings, and an order remanding those proceedings to the BIA with instructions to remand to the IJ. II. We exercise jurisdiction to review the BIA’s final order of removal under Section 242(a) of the INA, 8 U.S.C. § 1252(a). Because the BIA adopted the findings of the IJ and also commented on the sufficiency of the IJ’s determinations, this Court reviews the decisions of both the BIA and the IJ. See Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir.2004). We review these decisions under the highly deferential “abuse of discretion” standard. INS v. Abudu, 485 U.S. 94, 105, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988); Guo v. Ashcroft, 386 F.3d 556, 562 (2004). As such, these determinations “ ‘will not be disturbed unless they are found to be arbitrary, irrational, or contrary to the law.’ ” Guo, 386 F.3d at 562 (quoting Tipu v. INS, 20 F.3d 580, 582 (3d Cir.1994)). III. The INA allows an IJ to hold removal proceedings in absentia if the alien was provided proper written notice of the proceeding. 8 U.S.C. § 1229a(b)(5)(A). Under the INA, written notice must be “given in person to the alien (or, if personal service is not practicable, through service by mail to the alien or to the alien’s counsel of record, if any).” 8 U.S.C. § 1229(a)(1). An in absentia removal order may be rescinded, though, if the alien demonstrates that (1) she was in Federal or State custody and her failure to appear was through no fault of her own, (2) she “did not receive notice” of the hearing, or (3) her failure to appear was because of exceptional circumstances. 8 U.S.C. § 1229a(b)(5)(C). Our focus here is on the" }, { "docid": "10704905", "title": "", "text": "reopen. Matter of Coelho, 20 I & N Dec. at 473; Matter of Lozada, 19 I & N Dec. at 638-39. COLLOTON, Circuit Judge, concurring in part and dissenting in part. The parties agree that this court should review the decision of the Board of Immigration Appeals (“BIA”) denying Ana Rosa Ochoa’s motion to reopen her removal proceedings. I disagree with the court’s contrary conclusion, and I further conclude that the BIA abused its discretion in denying the motion. Therefore, I would remand the case for further proceedings. An alien may file one motion to reopen removal proceedings as of right, as long as the motion is filed within ninety days after the date on which the final administrative decision is rendered. 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2). We review the BIA’s decision on such a motion under a deferential abuse-of-discretion standard. Kucana v. Holder, — U.S. -, —, 130 S.Ct. 827, 834, — L.Ed.2d -, -(2010). The governing regulations also provide that the BIA “may at any time reopen or reconsider on its own motion any case in which it has rendered a decision.” 8 C.F.R. § 1003.2(a). The decision whether to exercise this sua sponte reopening authority is committed to agency discretion by law within the meaning of the Administrative Procedure Act, 5 U.S.C. § 701(a)(2). Tamenut v. Mukasey, 521 F.3d 1000, 1005 (8th Cir.2008) (en banc) (per curiam). After the BIA affirmed the decision of an immigration judge denying Ochoa’s request for cancellation of removal, Ochoa filed a motion to reopen alleging ineffective assistance of former counsel. She filed the motion within ninety days of the BIA’s final administrative decision, in accordance with 8 U.S.C. § 1229a(c)(7)(C)(i) and 8 C.F.R. § 1003.2(c)(2). The BIA denied the motion, and Ochoa filed a timely petition for review. See 8 U.S.C. § 1252(b)(1). This court thus has jurisdiction to review the BIA’s denial of Ochoa’s motion to reopen. See 8 U.S.C. § 1252(a)(1); Tame-nut, 521 F.3d at 1003. The court reasons that the decision is unreviewable because Ochoa’s pleading before the BIA stated that she moved to reopen" }, { "docid": "6333921", "title": "", "text": "found no clear error in the IJ’s finding of fact, including the adverse credibility determination. Wu now petitions for review of the BIA’s final order of removal. II. We have jurisdiction to review a final order of removal pursuant to 8 U.S.C. § 1252(a)(1). In this ease, because the BIA stated that the IJ’s adverse credibility determination was not clearly erroneous and adopted and affirmed all bases for the IJ’s decision, we review the IJ’s decision, including those portions not discussed by the BIA. See Sandie v. Att’y Gen., 562 F.3d 246, 250 (3d Cir.2009) (citing Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir.2005)). We review factual findings under the “substantial evidence” standard. Lin-Zheng v. Att’y Gen., 557 F.3d 147, 155 (3d Cir.2009). A factual determination will thus be upheld if it is supported by “reasonable, substantial, and probative evidence on the record considered as a whole.” Id. (internal citation omitted). Our review of the agency’s legal conclusions is de novo, and we apply the principles of deference set forth in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Id. The government argues that we lack jurisdiction to hear this appeal. Our jurisdiction is limited to claims where a petitioner “has exhausted all administrative remedies available ... as of right.” 8 U.S.C. § 1252(d)(1). “A petitioner is deemed to have ‘exhausted all administrative remedies’ ... and thereby ‘preserves the right of judicial review,’ ... if he or she raises all issues before the BIA.” Lin v. Att’y Gen., 543 F.3d 114, 120-21 (3d Cir.2008) (internal citations omitted). In Lin, we continued by reiterating that “[w]e do not, however, apply this principle in a draconian fashion,” and that “so long as a[ ] ... petitioner makes some effort, however insignificant, to place the [BIA] on notice of a straightforward issue being raised on appeal, a petitioner is deemed to have exhausted her administrative remedies.” Id. at 121 (internal quotations and citations omitted). The government correctly argues that Wu did not administratively exhaust the claim that he was persecuted for" }, { "docid": "23269408", "title": "", "text": "review by this Court, the petitioner must not only raise it before the BIA, but do so with specificity.” Brito v. Mukasey, 521 F.3d 160, 164 (2d Cir.2008). Luna did not exhaust review of that issue. However, we do not lack jurisdiction to hear such arguments and may hear them if the Government does not raise an exhaustion defense. Lin Zhong v. U.S. DOJ, 480 F.3d 104, 120 (2d Cir.2007). Thus far, the Government has not raised the issue. In addition, given his attorney’s conduct, Luna has a plausible claim that his counsel was ineffective during the BIA proceedings, which is a question that we have jurisdiction to review in a petition to review. Luna, of course, would need to raise that argument with the BIA and fulfill the requirements of Matter of Lozada, 19 I. & N. Dec. 637 (B.I.A.1988), but we need not decide whether the BIA would deny equitable tolling to raise the ineffectiveness issue, because Luna has a plausible argument that he was diligent. Forty-six days after the final order of removal (and 11 days after allegedly learning his attorney would not appeal), Luna filed a petition to appeal based on his counsel’s ineffective assistance. Under these circumstances, we cannot conclude that “there is no realistic possibility” that Luna would succeed in a petition for review challenging his final order of removal. In sum, we reject the Government’s request that we deny Petitioners’ petitions for review on futility grounds. Therefore, we proceed to determine whether the 30-day deadline for filing a petition for review violates the Suspension Clause as applied to Petitioners. III. Under the INA, “[a] petition for review must be filed not later than 30 days after the date of the final order of removal.” 8 U.S.C. § 1252(b)(1). This 30-day filing requirement “is jurisdictional and is not subject to equitable tolling.” Ruiz-Martinez, 516 F.3d at 105-06 (citing Malvoisin v. INS, 268 F.3d 74, 75-76 (2d Cir.2001)). In addition, a petition for review is the exclusive means available for challenging a final order of removal. 8 U.S.C. § 1252(a)(5), (b)(9). In Ruiz-Martinez, we held" }, { "docid": "7599569", "title": "", "text": "to the BIA, which, in an order issued October 20, 2008, affirmed the IJ’s reasoning and decision, and dismissed the appeal. This petition for review followed. II. Discussion A. Standard of Review This court has appellate jurisdiction over petitions for judicial review from the BIA under 8 U.S.C. § 1252. “Review of legal rulings is de novo but is deferential as to findings of fact and the determination as to whether the facts support a claim of persecution.” Jorgji v. Mukasey, 514 F.3d 53, 57 (1st Cir.2008). We review fact-based determinations under a “substantial evidence” standard, which requires that we must affirm provided that the BIA’s decision is “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Bocova v. Gonzales, 412 F.3d 257, 262 (1st Cir.2005) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)); see also 8 U.S.C. § 1252(b)(4)(B). Unless the record compels a contrary conclusion, evidence in the record supporting a conclusion contrary to that reached by the BIA is not enough to upset the agency’s determination. See Sompotan v. Mukasey, 533 F.3d 63, 68 (1st Cir.2008) (quoting López de Hincapié v. Gonzales, 494 F.3d 213, 218 (1st Cir.2007)). In other words, we must uphold the BIA’s determination unless the record “points unerringly in the opposite direction.” Hincapié, 494 F.3d at 220 (quoting Laurent v. Ashcroft, 359 F.3d 59, 64 (1st Cir.2004)). “Usually, this court confines its review to the BIA’s order that is being challenged by the petitioner.” Lumataw v. Holder, 582 F.3d 78, 83 (1st Cir.2009) (internal quotation marks omitted). “However, when as here, the BIA adopts the decision of the IJ, and provides some analysis of its own, the Court reviews both decisions.” Id. B. Applicable Law “To establish eligibility for asylum, an alien must prove either past persecution, which gives rise to an inference of future persecution, or establish a well founded fear of future persecution on account of her race, religion, nationality, membership in a social group, or political opinion.” Lumataw, 582 F.3d at *83 (internal quotation marks omitted); see also" }, { "docid": "23030247", "title": "", "text": "reopen. Rranei appealed to the BIA, which dismissed his appeal in June 2006. Rranei now petitions our Court for review of the BIA’s decision. II. Jurisdiction and Standard of Review We have jurisdiction over final orders of removal under § 242(a)(1) of the INA, 8 U.S.C. § 1252(a)(1). Here, the IJ granted Rranei the option of voluntary departure until December 2005 but, in the alterna tive, ordered him removed to Albania. “An order of removal becomes final upon, inter alia, ‘a determination by the [BIA] affirming such order.’ 8 U.S.C. § 1101(a)(47)(B)(i).” Yusupov v. Att’y Gen., 518 F.3d 185, 195 (3d Cir.2008). The BIA’s dismissal of Rranci’s appeal from the IJ’s denial of his motion to reopen amounted to an affirmance of the order of removal. See id. (“The Supreme Court has specified that administrative orders are final when they mark the ‘consummation’ of the agency’s decision-making process ----”). Because the BIA issued an opinion, rather than a summary affirmance, we review the BIA’s (rather than the IJ’s) decision. Li v. Att’y Gen., 400 F.3d 157, 162 (3d Cir.2005). We limit our review to the administrative record, 8 U.S.C. § 1252(b)(4)(A), and take the BIA’s “findings of fact [as] conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary,” id. § 1252(b)(4)(B). We review the BIA’s denial of Rranci’s motion to reopen under the abuse of discretion standard. In other words, the BIA’s “denial of a motion to reopen may only be reversed if it is ‘arbitrary, irrational, or contrary to law.’ ” Filja v. Gonzales, 447 F.3d 241, 251 (3d Cir.2006) (quoting Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir.2002)). Finally, we review the BIA’s legal conclusions de novo, including both pure questions of law and applications of law to undisputed facts. Francois v. Gonzales, 448 F.3d 645, 648 (3d Cir.2006). III. The State-Created Danger Exception Generally, due process of law does not create an affirmative obligation for the Government to protect private individuals from other private individuals. But the state-created danger exception to that rule imposes on the Government “a constitutional duty to protect" }, { "docid": "19341055", "title": "", "text": "Tofade’s motion to reopen the order of removal because it was untimely. The BIA also declined to exercise its sua sponte authority to reopen the proceedings under 8 C.F.R. § 1003.2(a). Tofade then timely petitioned this Court to review the BIA’s decision. DISCUSSION We have jurisdiction to review “final order[s] of removal” from the IJ or BIA. 8 U.S.C. § 1252(a)(1). We have held that § 1252(a)(1) also implicitly grants us the authority to review orders denying motions to reopen final orders of removal. Ali v. U.S. Att’y Gen., 443 F.3d 804, 809 n. 2 (11th Cir.2006). Since the BIA affirmed Tofade’s final order of removal, we have jurisdiction to review the BIA’s decision. See id. BIA’s Denial of Tofade’s Motion to Reopen The BIA may reopen proceedings in cases in which it has rendered a decision if a party affected by the decision so moves in writing. 8 C.F.R. § 1003.2(a). The party may file one motion “no later than 90 days after the date on which the final administrative decision was rendered in the proceeding sought to be reopened. ...” 8 C.F.R. § 1003.2(c)(2). The statutory ninety-day period “is mandatory and jurisdictional, and, therefore, it is not subject to equitable tolling.” Abdi v. U.S. Att’y Gen., 430 F.3d 1148, 1149 (11th Cir. 2005). We review for abuse of discretion a BIA decision to deny a motion to reopen. Abdi, 430 F.3d at 1150. “Our review is limited to determining ‘whether there has been an exercise of administrative discretion [that] has been arbitrary or capricious.’ ” Id. at 1149 (citation omitted). We do not find arbitrary or capricious the BIA’s denial of Tofade’s motion to reopen. The BIA affirmed the IJ’s order to deport Tofade on July 30, 2002. Tofade waited nearly four years after that date, well beyond the statutory ninety-day period, to move to reopen the proceedings. Accordingly, we find that the BIA did not abuse its discretion by denying as untimely Tofade’s motion to reopen. BIA’s Refusal to Reopen Sua Sponte The BIA may also sua sponte reopen proceedings in a case in which it rendered" }, { "docid": "18958173", "title": "", "text": "Petitioner had been “flouting his exclusion order for more than 20 years” and he had waited “more than 4 years after the most relevant alleged change in country conditions” to file his second motion to reopen. II. Discussion We review the denial of a motion to reopen for an abuse of discretion. Jiang v. U.S. Att’y Gen., 568 F.3d 1252, 1256 (11th Cir.2009). We will only find that the BIA has abused its discretion if its decision was arbitrary or capricious. Id. Fac tual findings are reviewed for substantial evidence, which requires “reasonable, substantial, and probative evidence.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1283-84 (11th Cir.2001). We reverse a finding of fact only if the record compels a reversal. Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341, 1351 (11th Cir.2009). Generally, an alien may file only one motion to reopen, which must be filed within 90 days after the final removal order. 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.23(b)(1). However, these time and number limitations do not apply if the alien can show “changed country conditions arising in the country of nationality.” 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.23(b)(4)(f). The BIA may deny a motion to reopen because: (1) the alien failed to establish a prima facie cáse; (2) the alien failed to introduce evidence that was material and previously unavailable; or (3) the BIA determined that, despite the alien’s statutory eligibility for relief, he is not entitled to a favorable exercise of discretion. Al Najjar, 257 F.3d at 1302. An alien seeking to reopen proceedings bears a “heavy burden” to show that the new evidence would likely change the outcome of the case. Ali v. U.S. Att’y Gen., 443 F.3d 804, 813 (11th Cir.2006). To qualify for asylum or withholding of removal, an applicant must establish that he has a well-founded fear of future persecution if removed to his home country on account of race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. §§ 1101(a)(42), 1158(b)(1), and 1231(b)(3). A person who has a well-founded fear that he will be forcibly" }, { "docid": "16838534", "title": "", "text": "is filed within thirty days of such an order, and (2) the IJ who completed the removal proceedings did so within this circuit. 8 U.S.C. § 1252(a), (b)(l)-(2); see id. § 1101(a)(47)(B) (explaining that an order of removal becomes final after the BIA affirms an IJ’s order of removal or after the period of time during which appeal to the BIA is available expires, whichever is earlier). This authority extends to the denial of motions to reopen removal proceedings. See Haddad v. Gonzales, 437 F.3d 515, 517 (6th Cir.2006) (citing, inter alia, Prekaj v. INS, 384 F.3d 265, 268 (6th Cir.2004) (“The denial of a motion to reopen is a final order subject to judicial review.”)). Additionally, the scope of our review is limited to “the administrative record on which the order of removal is based.” Id. § 1252(b)(4). The standard by which we assess that record is as follows: “[Administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” Id. Here, the facts are not in dispute. The BIA denied Rais’s second motion to reopen the removal proceedings against him on May 15, 2013, and Rais filed a petition for judicial review of that denial nine days later, on May 24, 2013. The IJ who completed removal proceedings against Rais did so in Detroit, Michigan. Accordingly, the court’s exercise of jurisdiction over Rais’s petition ordinarily would be proper. B.Jurisdictional Question. There exists, however, a jurisdictional question related to the BIA’s denial of the underlying motion to reopen. Rais neither disputes that the motion was both untimely and number-barred nor asserts that he qualifies for any exception to the filing requirements. See 8 U.S.C. § 1229a(c)(7)(A), (C)(i) (filing requirements); 8 C.F.R. § 1003.2(c)(2) (same); id. § 1003.2(c)(3)(i)-(iv) (exceptions to filing requirements). Accordingly, the BIA’s sua sponte authority to reopen removal proceedings was the only means by which he could have obtained relief. See 8 C.F.R. § 1003.2(a) (“The [BIA] may at any time reopen or reconsider on its own motion any case in which it has rendered a decision.... The [BIA] has" }, { "docid": "22735512", "title": "", "text": "motion to reopen his case and on July 23, 2007, Chen filed the petition now before us to review the BIA’s decision and order. III. JURISDICTION AND STANDARD OF REVIEW Zheng and Chen correctly assert that the BIA had jurisdiction under 8 C.F.R. § 1003.2(c). We have jurisdiction over the present petitions for review pursuant to 8 U.S.C. § 1252. We review the denial of a motion to reopen for abuse of discretion. Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir.2004). We will not disturb the BIA’s decisions “unless they are found to be arbitrary, irrational, or contrary to law.” Id. (internal citations and quotation marks omitted). IV. DISCUSSION The general criteria governing motions to reopen set forth in 8 C.F.R. § 1003.2(c)(1) provide that: A motion to reopen proceedings shall state the new facts that will be proven at a hearing to be held if the motion is granted and shall be supported by affidavits or other evidentiary material. A motion to reopen proceedings for the purpose of submitting an application for relief must be accompanied by the appropriate application for relief and all supporting documentation. A motion to reopen proceedings shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing .... Although a motion to reopen “must be filed no later than 90 days after the date on which the final administrative decision was rendered in the proceeding sought to be reopened,” 8 C.F.R. § 1003.2(c)(2), the 90-day limitation does not apply if the movant seeks reopening “based on changed circumstances arising in the country of nationality or in the country to which deportation has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii). The Supreme Court has set forth three bases on which the BIA can deny a motion to reopen: First, it may hold that the movant has failed to establish a prima" }, { "docid": "20383077", "title": "", "text": "attorney’s alleged ineffectiveness, the BIA erred in declining to equitably toll the time and numerical limits on his motion to reopen his removal proceedings found in 8 C.F.R. § 1003.2(c)(2). Section 1003.2(c)(2) provides: “[A]n alien may file only one motion to reopen removal proceedings (whether before the Board or the Immigration Judge) and that motion must be filed no later than 90 days after the date on which the final administrative decision was rendered in the proceeding sought to be reopened.” We have jurisdiction over the petition under 8 U.S.C. § 1252(a)(2)(D), which preserves our power to decide “constitutional claims or questions of law raised upon a petition for review.” The questions Petitioner raises in this petition are purely legal in nature and, therefore, fit comfortably within the confines of § 1252(a)(2)(D). Our review is de novo. Lorenzo v. Mukasey, 508 F.3d 1278, 1282 (10th Cir.2007). We conclude that we are bound by our recent precedent in Rosillo-Puga v. Holder, 580 F.3d 1147 (10th Cir.2009), and we therefore deny the petition for review. I. Petitioner became a lawful permanent resident of the United States in 1989. The Department of Homeland Security (DHS) initiated removal proceedings against him in 2004 based on, among other things, two state convictions for possession of steroids. After an administrative hearing, an immigration judge (IJ) ruled Petitioner removable and ordered him removed to Peru. Petitioner appealed the IJ’s decision to the BIA. The BIA affirmed. Petitioner then filed a petition for review with us, which we denied. Mendiola v. Gonzales, 189 Fed.Appx. 810 (10th Cir.2006) (unpublished). While his petition for review was pending, Petitioner was removed from the United States in March 2005. He returned illegally, however, and was detained on a charge of Reentry after Removal for an Aggravated Felony in violation of 8 U.S.C. § 1326. After he returned to the United States illegally and while in federal custody, Petitioner in 2007 filed his first motion to reopen with the BIA. The BIA determined that 8 C.F.R. § 1003.2(d) deprived it of jurisdiction to consider Petitioner’s motion to reopen because the regulation prohibits a" }, { "docid": "13101123", "title": "", "text": "Jurisdiction and Standard of Review The BIA has jurisdiction over motions to reopen removal proceedings pursuant to 8 C.F.R. § 1003.2(a). We have jurisdiction over Abulashvili’s petition for review pursuant to 8 U.S.C. § 1252. “We review a final order of the BIA denying a motion to reopen for abuse of discretion.” Mahmood v. Gonzales, 427 F.3d 248, 250 (3d Cir.2005) (citation omitted). Under this standard, we may reverse the BIA’s denial of a motion to reopen if it is “arbitrary, irrational, or contrary to law.” Zheng v. Att’y Gen., 549 F.3d 260, 265 (3d Cir.2008). Because the BIA’s original order of removal adopted the findings of the IJ and discussed the reasons behind the IJ’s decision, we review the decisions of both the IJ and the BIA. See Zheng v. Gonzales, 417 F.3d 379, 381 (3d Cir.2005). “Adverse credibility determinations are factual findings subject to substantial evidence review.” Tarrawally v. Ashcroft, 338 F.3d 180, 184 (3d Cir.2003). We will defer to and uphold the IJ’s adverse credibility determination if it is “supported by reasonable, substantial, and probative evidence on the record considered as a whole,” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992), but such findings must be based on inconsistencies and improbabilities that “go to the heart of the asylum claim.” Id.; see also Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002). III. Discussion A. The Motion to Reopen Although Abulashvili’s motion to reopen was untimely, the BIA may nonetheless consider the motion if it was “based on changed country conditions arising in the country of nationality.” 8 C.F.R. § 1003.2(c)(2). Under these circumstances, an alien must: (1) produce evidence demonstrating that conditions have changed in his country of nationality; (2) demonstrate that this evidence is material; and (3) establish that the evidence was not available and could not have been presented at the previous proceeding. Id.; see also Zheng v. Att’y Gen., 549 F.3d 260, 265 (3d Cir.2008). Here, the BIA found that Abulashvili had met the first and third factors, but not the second. Specifically, the BIA determined there" }, { "docid": "23264568", "title": "", "text": "petition to review that order within ninety days after it was issued, as required by 8 U.S.C. § 1252(b)(1) (which now requires a review petition to be filed “not later than 30 days after the date of the final order of removal”); the petitioner’s arguments on appeal are not exhausted because the petitioner never properly presented them to the BIA for consideration; and this court lacks jurisdiction to review the BIA’s decision not to reopen the proceedings sua sponte because that decision was based on the agency’s exercise of discretion and Congress has stripped courts of “jurisdiction to review ... any ... decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security.” 8 U.S.C. § 1252(a)(2)(B)(ii). The petitioner responds that his claims are based on the Constitution and raise questions of law, and Congress has provided that the jurisdiction-stripping statutes are not to “be construed as precluding review of constitutional claims or questions of law.” 8 U.S.C. § 1252(a)(2)(D). A. Order of Removal The BIA affirmed the IJ’s final order of removal on October 5, 2007. Generally, once an alien is found to be removable in a final agency order, he can file one motion to reconsider and one motion to reopen the removal proceedings with the agency, see 8 U.S.C. § 1229a(c)(6)-(7), or he can proceed directly to a court of appeals. 8 U.S.C. § 1252(b)(2). The time limits for filing a motion for reconsideration and a motion to reopen are “crystal clear.” Randhawa v. Gonzales, 474 F.3d 918, 920 (6th Cir.2007). A motion to reconsider must be filed with the agency “within 30 days of the date of entry of a final administrative order of removal,” 8 U.S.C. § 1229a(e)(6)(B), and a motion to reopen must be filed “within 90 days of the date of entry of a final administrative order of removal,” 8 U.S.C. § 1229a(c)(7)(C)(i). The petitioner did not meet either of these deadlines. The BIA may equitably toll" }, { "docid": "7376013", "title": "", "text": "I. & N. Dec. 637 (BIA 1988). He sought equitable tolling of the time and number limitations on motions to reopen. He also argued that the BIA should exercise its authority to reopen the proceedings sua sponte. The BIA denied Alzaarir’s motion as time- and number-barred. The BIA held that Alzaarir failed to show that he had acted with the reasonable diligence necessary for an award of equitable tolling. The BIA highlighted the fact that, in June 2005, Alzaarir learned that he had been ordered removed, became “skeptical” of Helal’s advice, and hired Lin. The BIA noted that no claim of ineffective assistance was made against Lin, who tried without success for three years to persuade DHS to file a joint motion to reopen. The BIA also observed that Alzaarir did not reveal when he consulted with his current counsel. However, the BIA noted, DHS notified counsel in March 2009 that it would not join in a joint motion, but the motion to reopen was not filed until August 10, 2009. The BIA also declined to reopen the proceedings sua sponte. Alzaarir submits a petition for review of the BIA’s decision. We have jurisdiction pursuant to 8 U.S.C. § 1252(a). Review of the BIA’s decision to deny a motion to reopen is under a highly deferential abuse of discretion standard. See Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir.2004). The discretionary decision is not disturbed unless it is found to be arbitrary, irrational, or contrary to law. See id. We will deny the petition for review because we cannot say the BIA’s decision was arbitrary, irrational, or contrary to law. An alien faces number and time limitations on filing motions to reopen. Generally, an alien may file only one motion to reopen. See 8 U.S.C. § 1229a(c)(7)(A) (listing an exception not relevant here). Also, most motions to reopen must be filed no later than 90 days after the date of the final administrative decision. See 8 U.S.C. § 1229a(c)(7)(A); 8 C.F.R. § 1003.2(c)(2). Alzaarir presented his second motion to reopen to the BIA more than four and a half" }, { "docid": "7376014", "title": "", "text": "to reopen the proceedings sua sponte. Alzaarir submits a petition for review of the BIA’s decision. We have jurisdiction pursuant to 8 U.S.C. § 1252(a). Review of the BIA’s decision to deny a motion to reopen is under a highly deferential abuse of discretion standard. See Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir.2004). The discretionary decision is not disturbed unless it is found to be arbitrary, irrational, or contrary to law. See id. We will deny the petition for review because we cannot say the BIA’s decision was arbitrary, irrational, or contrary to law. An alien faces number and time limitations on filing motions to reopen. Generally, an alien may file only one motion to reopen. See 8 U.S.C. § 1229a(c)(7)(A) (listing an exception not relevant here). Also, most motions to reopen must be filed no later than 90 days after the date of the final administrative decision. See 8 U.S.C. § 1229a(c)(7)(A); 8 C.F.R. § 1003.2(c)(2). Alzaarir presented his second motion to reopen to the BIA more than four and a half years after the BIA affirmed the IJ’s order in his case. The time limit for filing a motion to reopen is subject to equitable tolling, and perhaps the numerical limit is as well. See Borges v. Gonzales, 402 F.3d 398, 406 (3d Cir.2005); Luntungan v. Attorney Gen. of the United States, 449 F.3d 551, 557 & n. 15 (3d Cir.2006). Ineffective assistance of counsel can serve as a basis for equitable tolling if substantiated and accompanied by a showing of due diligence. See Mahmood v. Gonzales, 427 F.3d 248, 252 (3d Cir.2005). Due diligence must be exercised over the entire period for which tolling is desired. See Rashid v. Mukasey, 533 F.3d 127, 132 (2d Cir.2008). “This includes both the period of time before the ineffective assistance of counsel was or should have been discovered and the period from that point until the motion to reopen is filed.” Id. Alzaarir requested tolling because of Helal’s alleged ineffectiveness, which he discovered in June 2005, years before he filed his second motion to reopen. At that point," }, { "docid": "13101122", "title": "", "text": "to the BIA, challenging the IJ’s adverse credibility finding and contending that the IJ’s role in questioning him violated his due process right to a neutral arbiter. The BIA dismissed the appeal on May 80, 2008. Like the IJ, the BIA was troubled that Abulashvili’s asylum application did not claim that the root of his problems in Georgia could have been due to his father’s political activism. The BIA also rejected Abulashvili’s claim that his due process rights had been violated. The BIA concluded that the IJ was “ferreting out ... the facts” and “aequir ing clarity in [Abulashvili’s] testimony.” (A.R.421) We thereafter granted Abulashvili’s motion to stay removal. Abulashvili then filed a motion to reopen with the BIA based on changed country conditions, which the BIA denied because it was untimely. This petition for review followed. The petition apparently does not challenge the denial of Abulashvili’s untimely asylum application. (See Pet’s Brief, at ll). Rather, Abulashvili only challenges the denial of his claim for withholding of removal and relief pursuant to the CAT. II. Jurisdiction and Standard of Review The BIA has jurisdiction over motions to reopen removal proceedings pursuant to 8 C.F.R. § 1003.2(a). We have jurisdiction over Abulashvili’s petition for review pursuant to 8 U.S.C. § 1252. “We review a final order of the BIA denying a motion to reopen for abuse of discretion.” Mahmood v. Gonzales, 427 F.3d 248, 250 (3d Cir.2005) (citation omitted). Under this standard, we may reverse the BIA’s denial of a motion to reopen if it is “arbitrary, irrational, or contrary to law.” Zheng v. Att’y Gen., 549 F.3d 260, 265 (3d Cir.2008). Because the BIA’s original order of removal adopted the findings of the IJ and discussed the reasons behind the IJ’s decision, we review the decisions of both the IJ and the BIA. See Zheng v. Gonzales, 417 F.3d 379, 381 (3d Cir.2005). “Adverse credibility determinations are factual findings subject to substantial evidence review.” Tarrawally v. Ashcroft, 338 F.3d 180, 184 (3d Cir.2003). We will defer to and uphold the IJ’s adverse credibility determination if it is “supported by reasonable," } ]

[ { "docid": "23313262", "title": "", "text": "had entered into an agreement which provided that the corporation would acquire no rights in any ideas or inventions of Costanzo. During that association, and beginning about February 1964, Costanzo developed the heated sock which is the subject of his patent and disclosed it to Arron. They agreed to cooperate in exploiting it, initially by approaching potential manufacturers and disclosing it to them in confidence in an attempt to interest them in taking licenses. On September 13, 1965, Costanzo filed the patent application which matured, on December 20, 1966, into his U.S. patent No. 3,293,405 (the Costanzo patent). A little over a month later, on October 23, 1965, Arron filed an application for patent on asserted improvements in the Costanzo sock. When the Patent Office cited the Costanzo patent among the pri- or art on which his application was rejected, Arron overcame this reference by filing an affidavit under Rule 131 “swearing back” of the filing date of the Costanzo application, and on July 9, 1968 he was granted U.S. patent No. 3,392,264 (the Arron ’264 patent) on this application. On November 29, 1966 Arron filed a second application on a further asserted improvement; a continuation-in-part of this application, filed March 4, 1969, resulted in the grant, on August 18, 1970, of U.S. patent No. 3,524,965 (the Arron ’965 patent). On December 27, 1965, Costanzo entered into an exclusive license agreement with plaintiff Benjamin Hines, who organized Timely Products Corporation (Timely), to make and sell electric socks. Costanzo thereupon severed his relation with Arron, and revoked Arron’s authority to promote the socks. Shortly thereafter, Arron granted to Seneca Knitting Mills (Seneca) a non-exclusive license to sell socks incorporating his alleged im provements. This license was soon terminated because, according to defendants, of a threat by Timely to involve Seneca in litigation. Thereupon, in about March, 1966, Arron, with his mother and father, defendants Anna and Max Arron, formed defendant Visa-Therm Products, Inc. (Visa-Therm) to make and sell the socks. Timely and Visa-Therm have been active competitors since that time. In addition to their patent infringement claim, plaintiffs charged that Arron’s" } ]

[ { "docid": "9761962", "title": "", "text": "license agreement states: During any period for which he is entitled to royalties hereunder Compton shall not without Joy’s prior consent engage in any business or activity relating to the manufacture or sale of equipment of the type licensed hereunder, or have any affiliation financial or otherwise with, or give any advice, counsel or assistance to, any other person, firm, company, or entity directly or indirectly engaged in the manufacture or sale of such equipment. Metal Products claims that by requiring Compton not to engage in any activity relating to the manufacture or sale of equipment of the type licensed, the plaintiffs have misused the patent monopoly. We agree. The plaintiff contends that this paragraph restricts Compton from competing only with respect to the licensed devices, which he was precluded from doing anyway since he granted an exclusive license. We cannot agree that paragraph 15 is so restrictive. Whether or not “equipment of the type licensed” refers to mining equipment in general or just to augers, the use of the word “type” indicates clearly that more than a restriction upon the specific machines embodying the licensed patents was contemplated. In addition, this restriction is for as long as royalties were to be paid, which is until the last patent expires, or 1980. Other patents expire before then and one has already expired. Yet Compton has agreed not to compete for 20 years even with respect to his patents which have expired and entered the public domain. Furthermore, there is no restriction as to territory in which Compton is not to compete. No citation is necessary for the proposition that such an agreement, standing alone, would violate the common law prohibition against agreements in restraint of trade as well as Section 1 of the Sherman Act, 15 U.S.C. § 1, were it not for the limited exception carved out by the patent laws. However, a patentee is not allowed to extend the monopoly granted him beyond the exclusive right to make, use, and vend the device described in the patent for the term of the patent. Morton Salt Co. v. G." }, { "docid": "10937188", "title": "", "text": "continuation-in-part method, its three new patents would have been invalid due to the prior art that intervened between the two filing dates. We find that plaintiff has misconstrued the patent misuse theory, which is a defense to an infringement action and may be asserted when a patentee so exploits his patent that anti-trust laws are violated or the patent is extended well beyond its lawful scope. Donald S. Chisum, 4 Patents § 19.04. Plaintiff’s construction of the doctrine sets forth a claim in fraud, not in patent misuse. In each “patent misuse” case cited by plaintiff, a previously acquired patent was later used to procure royalties, licensing agreements or other similar profit-motivated goals. For example, in Morton Salt Co. v. Suppiger, 314 U.S. 488, 62 S.Ct. 402, 86 L.Ed. 363 (1942), plaintiff already had a patent on a salt depositing machine and leased its machines only on the condition that plaintiff’s unpatented salt tablets be used. Defendant herein had not even obtained its patent when its additional applications were filed. We also fail to see how the other cases plaintiff cites in support of its position may be analogized to the one before us. Even if we regard plaintiffs patent misuse argument as another way of expressing alleged inequitable conduct on the part of defendant in filing the continuation-in-part application, we take heed of the Court’s holding in San Marino Elec. Corp. v. George G. Meyer Manufacturing Co., 155 U.S.P.Q. 617, 626 (C.D.Cal.1967), aff'd, 422 F.2d 1285 (9th Cir.1970) that the filing of a continuation application does not in itself constitute unclean hands. The Court stated: “[DJefendants were exercising their legal rights in filing a continuation application, even if the purpose of the application may have been in part to broaden the patent.” Id. at 626. We find this true here. Plaintiff further claims that defendant misused its patent by filing two other continuation applications, U.S. Patent Nos. 4,314,572 (“’572”) (Ex. 71) and 4,303,085 (“ ’085”) (Ex. 73), which listed both de la Guardia and Cowsar as joint inventors when the ’244 patent listed only de la Guardia. 35 U.S.C." }, { "docid": "23201817", "title": "", "text": "systems are equivalent.” The trial court’s determination suggests that it compared the accused system to Valmont’s irrigation system, rather than to the control means structure in the specification. Moreover, even though both the control means in the specification and the control means on Reinke’s device use electric signals, the structures generating those signals are strikingly different. Reinke’s structure senses electromagnetic signals from a buried cable. The invention described in the ’838 patent senses the angular relations between the main arm and the extension arm and generates signals to adjust and maintain that relationship as the main arm rotates. To the extent that the district court applied the doctrine of equivalents to the claimed invention as a whole, it also erred. Although Reinke’s buried cable performs substantially the same control function and achieves substantially the same result as the ’838 control means, it does so in a very different way. Reinke’s buried cable controls the extension arm in a very different way from the angle comparator controls disclosed in the patent. Therefore, Reinke’s device does not meet the “way” prong of the tripartite test under the doctrine of equivalents. Moreover, Valmont's statements during prosecution of its reissue applications directly contradict its contention that Reinke’s control means is an equivalent either under section 112 or under the doctrine of equivalents. In a reissue proceed ing in which Valmont itself sought patent protection for a buried cable system, Val-mont argued that buried cable steering is “completely different” from Seckler and Porat’s ’838 patent: The invention [buried cable steering] would not have been obvious over the prior art because the approaches are completely different. First Seckler and Porat ... followed the approach of measuring the angular position of the main arm. Joint Appendix at 213. This court agrees that a buried cable steering system is completely different from the control means disclosed in the ’838 patent. The district court could not properly have found infringement under a section 112 analysis or by the doctrine of equivalents. By concluding that Reinke infringed claim 1 of the '838 patent, the district court clearly erred. Claim 2" }, { "docid": "10090020", "title": "", "text": "not established trademark misuse. The serious objection is to the finding that defendants have not established patent misuse. In the Court’s original Memorandum of Decision, it was concluded that patent misuse was not established because it was not shown that the effect of certain restrictions was to tend to create a monopoly in a line of commerce or to substantially lessen competition in a line of commerce. Then it was concluded that since these effects or one of them was not established, it could not be said that the restrictions violated the Clayton Act, 15 U.S.C.A: § 14. It was concluded that patent misuse was not established because it was concluded that it was not established that the restrictions violated the Clayton Act, the pertinent federal antitrust statute. Defendants contend that this holding was erroneous in law, for the reason that to establish the defense of patent misuse, it is not necessary to show a violation of the antitrust statute; it is sufficient merely to show certain restrictive agreements. It appears that this position of defendants is well taken. The key ease is Morton Salt Co. v. G. S. Suppiger Co., 314 U.S. 488, 489, 62 S.Ct. 402, 86 L.Ed. 363 (1942) As for the restriction in the agreement between plaintiff and defendants which restricted competition by defendants, this restriction terminated on July 1, 1962; thus this improper restriction has been abandoned, and the consequences of the misuse of the patent have been dissipated. Therefore, that restriction is no longer a defense. As for the restrictions still in effect on other distributors, they constitute an attempt to restrain competition from the sale of non-patented items, and thus to extend the patent monopoly to unpatented articles. These restrictions constitute patent misuse, whether or not the defendant is a competitor of the plaintiff. See the Salt case, supra. See also McCullough v. Kammerer Corp., 166 F.2d 759 (9th Cir., 1948), where the court held that a patent licensing agreement which gave licensee exclusive license to manufacture and use, but not to sell, patented oil well pipe cutter in the United States and" }, { "docid": "3290474", "title": "", "text": "noncompliance with Part II of the Patent Code can be asserted as a defense in a patent infringement cause of action. Plaintiff in the instant case has asserted the very defenses enumerated in § 282 of the Patent Code. Specifically, plaintiff argues that the defendant obtained its foreign filing license through inequitable conduct. It is well settled that inequitable conduct on the part of a patent applicant renders the patent obtained unenforceable. See Walker Process v. Food Machinery, 382 U.S. 172, 176, 86 S.Ct. 347, 349, 15 L.Ed.2d 247 (1950); Precision Instruments Manufacturing Co. v. Automotive Maintenance Machinery Co., 324 U.S. 806, 65 S.Ct. 993, 89 L.Ed. 1381 (1945); J.P. Stevens & Co., Inc. v. Lex Tex Ltd., Inc., 747 F.2d 1553, 1560 (Fed.Cir.1984). “Once a court concludes that inequitable conduct occurred all the claims — not just the particular claims to which the inequitable conduct is directly connected — are unenforceable.” See J.P. Stevens & Co., Inc. v. Lex Tex Ltd., Inc., 747 F.2d at 1561. See also cases collected in 4 Chisum Patents, Ch. 1903[6] at 1985 n. 10 (1984). This is so because of “the strong public interest in guaranteeing that patent monopolies spring from backgrounds free from fraud or other inequitable conduct and that such monopolies are kept within their legitimate scope.” See Precision Instruments, 324 U.S. at 818, 65 S.Ct. at 999. Since inequitable conduct in the procurement of a patent renders the patent obtained invalid, it seems perfectly obvious that the procurement of a foreign filing license through the use of fraud should likewise render the entire patent invalid and thus make the patent incapable of being infringed. See 35 U.S.C. § 185; In Re Application of Gaertner, 604 F.2d 1348, 1351 (D.C.Pa.1979); Reinke Mfg. Co., Inc. v. Sidney Mfg. Corp., 594 F.2d 644, 645 (8th Cir.1979); Greening Nursery Co. v. J. & R. Tool & Mfg. Co., 376 F.2d 738, 742 (8th Cir.1967). Obtaining a license from the Patent Office prior to the filing of a patent application abroad is a condition of patentability as specified in Part II of the Patent Code." }, { "docid": "1471205", "title": "", "text": "490, 494, 1 L.Ed.2d 465, 471 (1957). But the simplicity with which the rule may be stated is misleading. In 1955 the Attorney General’s National Committee to Study the Antitrust Laws commented that “the outer reach of the misuse doctrine has not yet been fully defined.” , Eleven years later in 1966 the President’s Commission on the Patent System reported that uncertainty as to the precise nature of the patent right coupled with lack of doctrinal clarity in the misuse rule has “produced confusion in the public mind and a reluctance by patent owners and others to enter into contracts and other arrangements pertaining to patents or related licenses.” The doctrine of misuse was developed by the Supreme Court in a series of early cases as a defense against contributory infringement. In 1942 the Court applied it in a case of direct infringement. Morton Salt Co. v. G. S. Suppiger Co., 314 U.S. 488, 62 S.Ct. 402, 86 L.Ed. 363 (1942). See also B. B. Chemical Co. v. Ellis, 314 U.S. 495, 62 S.Ct. 406, 86 L.Ed. 367 (1942). The rationale of the doctrine is a rejection of the concept of the patent as an absolute property right in favor of its definition as a right which must not be exercised in a manner not consistent with the constitutionally-defined purpose for which it was conferred, i. e., to “promote the Progress of * * * useful Arts.” In Mercoid Corp. v. Mid-Continent Invest. Co., 320 U.S. 661, 665, 64 S.Ct. 268, 271, 88 L.Ed. 376, 380 (1944) Mr. Justice Douglas emphasized that to allow an infringement suit by a patentee who has misused his patent “would be to extend the aid of a court of equity in expanding the patent beyond the legitimate scope of its monopoly.” It is not necessary that the defendant asserting the misuse defense has been — or would be — injured by the misuse. In Morton Salt Co. v. G. S. Suppiger, supra, Mr. Justice Stone wrote: “It is a principle of general application that courts * * * may appropriately withhold their aid where" }, { "docid": "22170333", "title": "", "text": "confidential documents by a third party, plaintiff should move for a protective order under Federal Rule of Civil Procedure 26(c)(7) on its foreign commerce documents. APPENDIX The throwsters’ specific antitrust and patent misuse claims may be categorized as follows: 1. Restrictions on use of ARCT false twist machines after purchase and passage of title—violations of Section 1 of the Sherman Act and of Section 7 of the Clayton Act. 2. Restriction on resale of ARCT false twist machines—violations of Section 1 of the Sherman Act. 3. Agreements affecting the availability to competitors of equipment and supplies essential to their businesses, and affording a conspirator anticompetitive access to confidential information—violations of Section 1 of the Sherman Act. 4. Package licensing—violations of Section 1 of the Sherman Act and patent misuse. 5. Attempts to monopolize by defendants through practices of DMRC —violations of Section 2 of the Sherman Act. 6. 1964 Agreements among Chavanoz, DMRC, ARCT-France, Whitin, and Leesona—violations of Section 1 and Section 2 of the Sherman Act. 7. Attempts and agreements to extend the monopoly under the Chavanoz patents beyond the lawful time, scope and subject matter of the patent monopoly—violations of Sections 1 and 2 of the Sherman Act and patent misuse. 8. Inequitable conduct in dealings with the United States Patent Office—unenforceability of the patents and violations of Sections 1 and 2 of the Sherman Act. 9. Acts independently establishing patent misuse—unenforceability of the patents and license agreements. 10. Collusive restraints on magnetic spindles—violations of Section 1 of the Sherman Act. SUPPLEMENTAL ORDER TO ORDER OF MAY 30, 1974 On May 30, 1974, this court issued an order on motion of former non-exclusive patent use-sublicensee defendants (hereinafter designated throwsters), filed pursuant to Federal Rules of Civil Procedure 34(a)(1) and 26(b)(3), for production of approximately 4,500 documents submitted in-camera by plaintiff patent owner and the exclusive patent-licensees of the manufacturing, sale, and use-rights (hereinafter designated associates) who resisted production under claims of work product, attorney-client, trade secret, or irrelevancy. In that opinion, the court set forth the guidelines it intended to apply in a final in-camera inspection of the" }, { "docid": "4461118", "title": "", "text": "and the leaders in the industry have tacitly acknowledged the uniqueness of Red 40 by entering into licensing agreements with Allied. B The Court’s finding that the patents in suit were not anticipated or obvious at the time of the invention does not end the inquiry, for plaintiffs argue that the patents are invalid or unenforceable on policy grounds, because of (1) Allied’s failure to disclose pertinent prior art and the best mode of preparation in prosecuting its application before the Patent Office and (2) defendants’ misuse of the “patent monopoly” to extort unreasonable sums from plaintiffs or drive them out of the dye market. The Court finds their claims to be without substance. 1 The first set of collateral attacks on the validity or enforceability of the patents is that Allied Chemical failed to disclose material matters in prosecuting its application before the Patent Office: (a) the “best mode” for preparing the dyes and (b) the most relevant prior art. While stopping short of alleging fraud on the Patent Office, plaintiffs contend that where nondisclosures are serious, material, and reckless the subsequently granted patents should be declared invalid or, at least, unenforceable. The Court shares this concern. Because a patent grants a monopoly, and because the Patent Office, flooded with applications and at times lacking adequate resources, is unable to check all facts and investigate all relevant prior art, “it must rely on applicants for many of the facts upon which its decisions are based. The highest standards of honesty and candor on the part of applicants in presenting such facts to the office are thus necessary elements in a working patent system.” Accordingly, “unclean hands” occasioned by failure to disclose such facts can operate to invalidate a patent or render it unenforceable. Although Allied’s disclosures were not all-inclusive, the Court finds that they were presented in good faith and without reckless disregard of the applicant’s duties of disclosure. The first challenge is that Allied failed to meet the statutory requirement that “[t]he specification shall contain a written description of the invention, and of the manner and process of" }, { "docid": "23201818", "title": "", "text": "meet the “way” prong of the tripartite test under the doctrine of equivalents. Moreover, Valmont's statements during prosecution of its reissue applications directly contradict its contention that Reinke’s control means is an equivalent either under section 112 or under the doctrine of equivalents. In a reissue proceed ing in which Valmont itself sought patent protection for a buried cable system, Val-mont argued that buried cable steering is “completely different” from Seckler and Porat’s ’838 patent: The invention [buried cable steering] would not have been obvious over the prior art because the approaches are completely different. First Seckler and Porat ... followed the approach of measuring the angular position of the main arm. Joint Appendix at 213. This court agrees that a buried cable steering system is completely different from the control means disclosed in the ’838 patent. The district court could not properly have found infringement under a section 112 analysis or by the doctrine of equivalents. By concluding that Reinke infringed claim 1 of the '838 patent, the district court clearly erred. Claim 2 depends from claim 1 and for the same reasons is not infringed. Claims 3, 8, 14, 18, and 22 contain “control means” or “steering means” language. The steering or control means language in these claims specifically refers to angular comparisons. For instance, claim 8 requires “steering means responsive to the angular position of the main arm assembly.” Claim 14 requires “means to vary the angular position of the extension arm assembly.” For the same reason the broad claim 1 is not infringed, these narrower claims are not infringed. CONCLUSION The Reinke device does not contain a structural equivalent of the control means set forth in the ’838 patent. Nor does Reinke’s device infringe under the doctrine of equivalents. Without infringement, the trial court’s award of damages and its injunction cannot stand. Likewise, without infringement, this court dismisses Val-mont’s cross-appeal for increased damages and attorney fees as moot. For the reasons stated above, the judgment of the district court is reversed. COSTS Each party will bear its own costs on this appeal. REVERSED. . This court" }, { "docid": "10090021", "title": "", "text": "defendants is well taken. The key ease is Morton Salt Co. v. G. S. Suppiger Co., 314 U.S. 488, 489, 62 S.Ct. 402, 86 L.Ed. 363 (1942) As for the restriction in the agreement between plaintiff and defendants which restricted competition by defendants, this restriction terminated on July 1, 1962; thus this improper restriction has been abandoned, and the consequences of the misuse of the patent have been dissipated. Therefore, that restriction is no longer a defense. As for the restrictions still in effect on other distributors, they constitute an attempt to restrain competition from the sale of non-patented items, and thus to extend the patent monopoly to unpatented articles. These restrictions constitute patent misuse, whether or not the defendant is a competitor of the plaintiff. See the Salt case, supra. See also McCullough v. Kammerer Corp., 166 F.2d 759 (9th Cir., 1948), where the court held that a patent licensing agreement which gave licensee exclusive license to manufacture and use, but not to sell, patented oil well pipe cutter in the United States and its territories, but prevented both licensor and licensee from acquiring any other pipe cutter, is against public interest and precludes both li-censor from recovering damages for infringement of patent. However, the statements made by the court are broad enough to regard as patent misuse any agreement by which the licensor or patent owner requires the licensee not to compete with the patented device, and this would include a, fortiori perhaps, the agreement requiring non- competition in general. Here, the agreement used by plaintiff Waco required and requires the other distributors not to compete with the products which the distributor is permitted to sell or rent by the distributorship agreement (and this includes the patented speedlock device, and another patented device); at least, this is the limited extent of the named devices in the franchise agreement form, primarily relied on here by the Court. But accessories of these are also included, and the agreement is amendable. In any event, it is clear that even a mere restriction on competition with the patented device by itself is" }, { "docid": "23201806", "title": "", "text": "to a comparator circuit which monitors the angular relation of the two arms. The comparator sends an electronic signal to a steering motor on a wheel of the extension arm. The electronic signal pivots the wheel to keep the extension arm in place relative to the main arm. Drive motors attached to the wheel propel the extension arm. In this manner, the ’838 patent’s extension arm follows a precise path dictated by these angular relationships. In March 1974, two Valmont employees, Mr. Robert Daugherty and Mr. William Eaton, also sought a patent on enhanced center pivot technology. Their application also described an extension arm to irrigate areas outside the main arm’s reach. The extension arm in the Daugherty and Eaton invention, however, followed a buried electrical conductor, not electrical signals generated by angle comparators. In September 1975, U.S. Patent No. 3,902,668 issued on the Daugherty and Eaton invention to Valmont. In 1980, Valmont filed reissue applications for both the ’627 and ’668 patents. The Patent and Trademark Office (PTO) approved the Seckler and Porat application as Patent No. Re. 31,838, but refused to reissue the Daugherty and Eaton patent (’668). During reissue proceedings on the Daugherty and Eaton patent, Valmont contended that the buried cable steering system was “completely different” from the angle comparator steering system in the ’627 patent. In 1985, Valmont sued Reinke for infringement of the ’838 patent. Reinke manufactured and sold corner irrigation systems. Reinke’s extension arm follows a buried cable. The district court found that Reinke had infringed the ’838 patent. Reinke appealed. . DISCUSSION The district court found that Reinke had infringed claims 1, 2, 3, 8, 14, 18, and 22 of the ’838 patent. Each of these claims uses “means-plus-function” language. The primary infringement issue in this case involves the “control means” element of claim 1: [C]ontrol means for operating said moving means to move said extension arm assembly relative to said main arm assembly. ... In relation to this control means limitation, the trial court stated: The Court concludes that the means for steering in the two systems are equivalent — that" }, { "docid": "18192353", "title": "", "text": "Inc., 211 F. Supp. 144, 135 USPQ 259 (1962). The consent judgment contains many terms and conditions relating to plaintiff’s licensing, marketing and pricing practices with respect to meprobamate; and the judgment was entered only after the court was satisfied that it was in the public interest. See 211 F. Supp. at 147, 148. In essence, the judgment requires plaintiff to sell meprobamate to any qualified pharmaceutical manufacturer at no more than a specified maximum price for unrestricted use and sale by such manufacturer. There are other conditions and qualifications in the judgment some of which will be noted later. It is settled that courts will not aid a patentee in infringement litigation if the patentee, in dealing with the patent by licenses or product sales, engages in conduct violative of the antitrust laws or the principles of equity. Morton Salt Co. v. G. S. Suppiger Co., 314 U.S. 488 (1942). Such conduct has come to be called patent misuse and is an application of the equitable doctrine that he who seeks equity must come into court with clean hands. When patent misuse and its consequences have been dissipated, however, the patentee is once again free to pursue his statutory remedy against infringers. Metal Disintegrating Co. v. Reynolds Metals Co., 228 F. 2d 885, 889, 108 USPQ 143 (C.A. 3, 1956); Kins, Dissipation of Patent Misuse, 1968 Wis. L. Kev. 918. The main question is whether the consequences of the patent misuse existing prior to the consent decree in 1962 were dissipated as a result of that judgment. Plaintiff notes that it has agreed to waive recovery against the United States for any infringement prior to November 9,1962 (the date of the consent judgment), and argues that, accordingly, pre-1962 activities relating to licensing, marketing and pricing practices have no post-1962 relevance. The affidavit of the attorney (Eoss) who represented plaintiff in the antitrust litigation leading up to the consent judgment declares that the company promptly complied with the consent judgment and that it has unswervingly adhered to its terms ever since. Defendant does not dispute this statement (at least at" }, { "docid": "8387653", "title": "", "text": "to prompt a Government antitrust investigation of Applera’s licensing program. Mr. Strenio’s letter to MJ confirming the subject of his firm’s retention made clear that the firm intended to “to analyze, from an antitrust perspective, the activities of [Applera] that have harmed [MJ’s] ability to sell cycler machines manufactured by MJ Research, Inc.,” in order to “develop a presentation explaining the case for federal and/or state antitrust officials to begin an inquiry into [Applera’s] behavior and, hopefully, commence a formal investigation.” See Letter from Andrew Strenio to Michael Finney, December 14, 1994 [Doc. # 784, Ex. 26]. As Strenio’s representation of defendants was aimed at a particular result — to instigate a federal antitrust investigation — it does not satisfy the requirements of a good faith legal opinion. In fact, although defendants have vigorously pursued their claims that Applera’s patents are unenforceable because its licensing program constituted patent misuse, defendants have not pointed to any legal opinions from which this Court could conclude that MJ came to its position in good faith. This Court has found these claims to be without merit. See, e.g. Ruling on Plaintiffs Motion in Limine to Exclude MJ’s Evidence and Arguments Claiming PCR Rights are Tied to Authorized Thermal Cyclers [Doc. #874]; Rulings on Motion for Partial Summary Judgment on Patent Misuse of MJ Research, Inc. and Michael and John Finney; Plaintiffs’ Cross Motion for Partial Summary Judgment on MJ’s Patent Misuse Defense [Doc. # 1255]. Defendants also received a legal opinion regarding invalidity and infringement of the ’493 patent. See Opinion Letter from A. Jason Mirabito, Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. to Michael Finney, September 22, 1998 [PTX 1500], Defendants’ good faith reliance on the validity opinion, however, is called into question by the fact that although the prior art references on which Mr. Mirabito relied in his invalidity opinion were those that MJ asserted against the ’675 patent in reexamination, MJ did not seek re-examination of the ’493 patent, and did not assert this prior art against the ’493 patent at trial. Moreover, counsel’s statement that “there may be issues" }, { "docid": "19781055", "title": "", "text": "MEMORANDUM OPINION AND ORDER BAUER, District Judge. This cause comes on the motion of defendant for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. The action, arising under the patent laws of the United States, involves the alleged infringement by defendant of plaintiff’s patent for a swivel blade cable stripper. Jurisdiction is conferred by 28 U.S.C. § 1338(a). Defendant’s motion is founded upon its assertion that plaintiff has so misused the patent in suit as to render it unenforceable. Plaintiff denies that he has misused the patent, contending further that summary judgment is generally inappropriate in patent cases. The uncontroverted facts include the following: Plaintiff, a citizen of West Germany, manufactures a cable stripper under the trade name of Jokari. On October 23, 1967, he filed in the United States Patent Office an application containing ten claims for examination; all ten claims were rejected by the Patent Office on April 22, 1969. Plaintiff then entered into a contract on July 28, 1969 with P. W. Weidling & Sohn KG (hereinafter referred to as “Weidling”), a German corporation, whereby he granted that company an exclusive license to sell the Jokari cable stripper. That contract, purporting to be world-wide in scope, is still in effect. Plaintiff’s cable stripper was finally patented on December 16, 1969. Since that time defendant, a Delaware corporation with its principal place of business at Sycamore, Illinois, has been manufacturing and selling swivel blade cable strippers in the United States. Defendant’s contention that plaintiff has misused his patent monopoly arises from the terms of plaintiff’s contract with Weidling. The pertinent portion of that agreement (in § II.3.) provides as follows: “The licensed vendor undertakes to sell no products of other manufacture which are identical with or similar to [the patented device]. He will also avoid any direct or indirect competition relative to the manufacturer. In particular, he may not act for a third party which makes or sells identical or similar products, either directly or indirectly, within or without the (licensed) territories, be it as a licensed vendor, commission vendor or representative. This" }, { "docid": "2962798", "title": "", "text": "to July 1, 1968, when the clause requiring payment of royalties on parts and portions of the patented system was fully effective. A patent is a grant of the right to exclude others from making, using or selling one’s invention, and includes the right to license others to make, use or sell it. It is a legitimate monopoly having as its primary purpose the advancement of the arts and sciences rather than reward to the individual. It is not a certificate of merit, but an incentive to disclosure. Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 S.Ct. 1143, 89 L.Ed. 1644 (1945). The history of the administration of patents has been one of reconciling the inventor’s private rewards with the public interest in promoting progress. Kendall v. Winsor, 21 How. 322, 327-329, 16 L.Ed. 165 (1859). To protect the interest of the public, the courts have resisted attempts to enlarge the monopoly granted by the patent by the formulation of the judicial doctrine of patent misuse. It has been held in a long line of patent cases that a patentee who utilizes his patent monopoly to secure a limited monopoly on unpatented articles or material will be denied all relief against infringement of his patent. The basic rationale for the patent misuse doctrine is the policy of protecting the public’s interest in free competition by refusing to enforce contracts which suppress free competition or restrain trade. Therefore, it is irrelevant whether the party invoking the patent misuse doctrine has suffered from the patentee’s misuse of his patent for it is the adverse effect upon the public interest which is the primary concern. Morton Salt Co. v. G. S. Suppiger Co., 314 U.S. 488, 494, 62 S.Ct. 402, 86 L.Ed. 363 (1942). The patentee enjoys a monopoly as to his invention, but under the patent misuse doctrine he may not use his patent or patents to control the manufacture, use or sale of unpatented articles or materials. To establish the defense of patent misuse, it is not necessary to show a violation of the Clayton Act or the" }, { "docid": "2962799", "title": "", "text": "long line of patent cases that a patentee who utilizes his patent monopoly to secure a limited monopoly on unpatented articles or material will be denied all relief against infringement of his patent. The basic rationale for the patent misuse doctrine is the policy of protecting the public’s interest in free competition by refusing to enforce contracts which suppress free competition or restrain trade. Therefore, it is irrelevant whether the party invoking the patent misuse doctrine has suffered from the patentee’s misuse of his patent for it is the adverse effect upon the public interest which is the primary concern. Morton Salt Co. v. G. S. Suppiger Co., 314 U.S. 488, 494, 62 S.Ct. 402, 86 L.Ed. 363 (1942). The patentee enjoys a monopoly as to his invention, but under the patent misuse doctrine he may not use his patent or patents to control the manufacture, use or sale of unpatented articles or materials. To establish the defense of patent misuse, it is not necessary to show a violation of the Clayton Act or the existence of an actual monopoly. Morton Salt Co. v. G. S. Suppiger Co., 314 U.S. 488, 62 S.Ct. 402, 86 L.Ed. 363 (1942); Berlenbach v. Anderson & Thompson Ski Co., 329 F.2d 782 (9th Cir. 1964). It is sufficient to show the existence of restrictive agreements which tend to suppress competition in non-patented articles or materials. Defendants’ contention of patent misuse is directed solely to the requirement in the royalty clause of the license agreement that the licensee, Valmont, pay a 5 percent royalty to Zybaeh and Trow-bridge on unpatented parts or portions of the patented sprinkler irrigation system which are sold by Valmont separately as spare or replacement parts for the patented system. There are three types of licensing arrangements which the courts have treated as patent misuse: (1) tying arrangements — schemes requiring the purchase of unpatented goods for use with the patented apparatus; (2) license agreements requiring the licensee not to deal in competitive articles; and (3) coercive package licensing — conditioning the granting of a license under one patent upon the" }, { "docid": "2411921", "title": "", "text": "U.S. 488, 62 S.Ct. 402, 86 L.Ed. 363 (1942), as the foundational patent misuse case. In that case, the plaintiff Morton Salt brought suit on the basis that the defendant had infringed Morton’s patent in a salt-depositing machine. The salt tablets were not themselves a patented item, but Morton’s patent license required that licensees use only salt tablets produced by Morton. Morton was thereby using its patent to restrain competition in the sale of an item which was not within the scope of the patent’s privilege. The Supreme Court held that, as a court of equity, it would not aid Morton in protecting its patent when Morton was using that patent in a manner contrary to public policy. Id. at 490-92, 62 S.Ct. at 404-05. The Court stated: The grant to the inventor of the special privilege of a patent monopoly carries out a public policy adopted by the Constitution and laws of the United States, “to promote the Progress of Science and useful Arts, by securing for limited Times to ... Inventors the exclusive Right ...” to their “new and useful” inventions. United States Constitution, Art. I, § 8, cl. 8, 35 U.S.C. § 31. But the public policy which includes inventions within the granted monopoly excludes from it all that is not embraced in the invention. It equally forbids the use of the patent to secure an exclusive right or limited monopoly not granted by the Patent Office and which it is contrary to public policy to grant. Id. at 492, 62 S.Ct. at 405. Thus, the Supreme Court endorsed “misuse of patent” as an equitable defense to a suit for infringement of that patent. Since Morton Salt, the courts have recognized patent misuse as a valid defense and have applied it in a number of cases in which patent owners have attempted to use their patents for price fixing, tie-ins, territorial restrictions, and so forth. See Calkins, Patent Law, at 187-89 n. 38, 8 Walker on Patents §§ 28:32-28:36; W. Holmes, Intellectual Property and Antitrust Law § 1.07 (1989) [hereinafter Holmes, Intellectual Property ]. The patent misuse" }, { "docid": "10937187", "title": "", "text": "by defendant, an issue which both parties stipulated was being tried. (Stipulated Fact 48) For this limited purpose, we admit these exhibits into evidence. Plaintiff contends that defendant misused its ’244 patent by using it as a basis for improperly obtaining an effective filing date for three other patents. In other words, plaintiff claims that on February 8 and 11, 1980 defendant filed three continuation-in-part applications, i.e., additional patent applications filed during the pendency of an earlier-filed application by the same inventor disclosing at least partially the same (plus added) subject matter and referring to the earlier application. 35 U.S.C. § 120. (Tr. 1016-17) One of the new applications, U.S. Patent No. 4,324,263 (“ ’263”) (Ex. 112) contained new subject matter and claimed the benefit of the ’244 application filed on June 9, 1977 which was still pending. Allegedly, defendant was in that way able to patent new forms of guanidine salts not covered in the original application which other companies had begun using after defendant’s initial application was filed; had defendant not employed the continuation-in-part method, its three new patents would have been invalid due to the prior art that intervened between the two filing dates. We find that plaintiff has misconstrued the patent misuse theory, which is a defense to an infringement action and may be asserted when a patentee so exploits his patent that anti-trust laws are violated or the patent is extended well beyond its lawful scope. Donald S. Chisum, 4 Patents § 19.04. Plaintiff’s construction of the doctrine sets forth a claim in fraud, not in patent misuse. In each “patent misuse” case cited by plaintiff, a previously acquired patent was later used to procure royalties, licensing agreements or other similar profit-motivated goals. For example, in Morton Salt Co. v. Suppiger, 314 U.S. 488, 62 S.Ct. 402, 86 L.Ed. 363 (1942), plaintiff already had a patent on a salt depositing machine and leased its machines only on the condition that plaintiff’s unpatented salt tablets be used. Defendant herein had not even obtained its patent when its additional applications were filed. We also fail to see" }, { "docid": "19781056", "title": "", "text": "referred to as “Weidling”), a German corporation, whereby he granted that company an exclusive license to sell the Jokari cable stripper. That contract, purporting to be world-wide in scope, is still in effect. Plaintiff’s cable stripper was finally patented on December 16, 1969. Since that time defendant, a Delaware corporation with its principal place of business at Sycamore, Illinois, has been manufacturing and selling swivel blade cable strippers in the United States. Defendant’s contention that plaintiff has misused his patent monopoly arises from the terms of plaintiff’s contract with Weidling. The pertinent portion of that agreement (in § II.3.) provides as follows: “The licensed vendor undertakes to sell no products of other manufacture which are identical with or similar to [the patented device]. He will also avoid any direct or indirect competition relative to the manufacturer. In particular, he may not act for a third party which makes or sells identical or similar products, either directly or indirectly, within or without the (licensed) territories, be it as a licensed vendor, commission vendor or representative. This also applies to the sale of used products. Exceptions require the written agreement of the manufacturer.” Defendant contends that the contractual preclusion of Weidling’s dealing in competitive goods constitutes an enlargement of plaintiff’s monopoly beyond the limitation inherent in the patent grant. The law is well settled that a patentee may not increase the scope of the monopoly afforded by his patent through a license agreement with a manufacturer or distributor; indeed, an attempt to so enlarge the exclusive right will prevent his maintenance of an action for patent infringement. Morton Salt Co. v. G. F. Suppiger Co., 314 U.S. 488, 62 S.Ct. 402, 86 L.Ed. 363 (1942). While the earlier decisions in this area were limited to contracts tying unpatented ' products to those under patent, the concept of misuse has been extended to contracts prohibiting a licensee from dealing in goods which compete directly with the patented product. See, e. g., Berlenbach v. Anderson & Thompson Ski Co., 329 F.2d 782 (9th Cir. 1964), cert. denied, 379 U.S. 830, 85 S.Ct. 60, 13" }, { "docid": "6994232", "title": "", "text": "ALBERT V. BRYAN, Circuit Judge. A patent for a surgical stocking, marketed as Supp-hose, was attacked in the District Court as fraudulently procured, lacking in inventiveness and as misused. On these grounds a declaratory judgment was sought of its invalidity. Besides denying these charges of the plaintiff non-patentees, the defendant patentees accused them of infringement, asked appropriate enforcement of the patent, and additionally charged the plaintiffs with unfair competition. The trial judge found a purposeful omission of the patentees to disclose in the patent application a product that will be referred to as the Burlington stocking, which he noted was very similar to the one described in the application and was generally known in the art for several years before the filing of the application. Thereupon he held the patent for naught. Thoughtfully, to prevent a new trial in the event his determination was not sustained on appeal, he ruled on the remaining accusations and recriminations In regard to the patent. In this he struck down nine of its claims as wanting in novelty and definiteness. The remaining fifteen claims he thought valid. He found unwitting infringement by the non-patentees of eleven of the claims and acquitted them of unfair competition. But, In the end, he concluded that the patent had been rendered unenforceable by the excessive and unlawful restraint imposed by the patentees in a license of it. The initial appeal is by the defendant patentees against the finding of fraud in the procurement of the patent and the alternate determination of misuse. They do not ask review of the dismissal of the elaim of unfair competition. Cross-appealing, the plaintiff non-patentees pray the vacation of the alternate findings of validity and infringement. The plaintiffs are Triumph Hosiery Mills, Inc., Hudson Hosiery Company, Burlington Industries, Inc., Claussner Hosiery Company and McCallum Hosiery Company. McCallum is a division of ■Claussner. These are the non-patentees; they are engaged in the manufacture and sale, among other things, of ladies’ nylon hosiery. The patent in suit, No. 2,841,971, was issued July 8, 1958 on an application filed August 19, 1957 by Joseph H. Bird," } ]

[ { "docid": "23692098", "title": "", "text": "activity in light of alleged civil rights violations. The court denied such broad relief based upon its finding that discreet violations by a few officers did not justify court interference in the administration of local affairs. The Rizzo case did not address the liability of backup or standby officers for the acts of other agents, thus the district court’s reliance on this case was improper. The other cases relied upon by the district court, Claiborne v. Cabalen, 636 F.Supp. 1271 (D.Md.1986) and Ghandi v. Police Department of City of Detroit, 747 F.2d 338 (6th Cir.1985), cert. denied, 484 U.S. 1042, 108 S.Ct. 774, 98 L.Ed.2d 861 (1988) are not controlling in this circuit. The appellant relies on a recent decision from our circuit handed down after the district court’s ruling which does address the liability of backup officers. In Melear v. Spears, 862 F.2d 1177 (5th Cir.1989), a deputy sheriff of a neighboring county provided backup for another officer’s illegal search of an apartment building. The backup officer stood armed at the door of the building while the search proceeded. The court concluded that this made the officer “a full, active participant in the search, not a mere bystander,” and that “[bjoth men thus performed police functions that were integral to the search.” Id. at 1186. See also, Creamer v. Porter 754 F.2d 1311 (5th Cir.1985) (where the court found that an officer who was “present until the search was completed and the seized items removed from the premises” was more than a bystander and therefore was improperly dismissed from the suit. Id. at 1316.) The record reveals that although the Ya-zoo City officers did not physically perform the pat-down search of James, they remained armed on the premises throughout the entire search. Additionally, the Yazoo' City officers guarded the detained customers outside the shop while the search and arrest proceeded inside. Under this court’s holding in Melear, these activities were “integral to the search” and render them participants rather than bystanders. The district court improperly granted summary dismissal on this basis. Qualified Immunity Although all defendants’ participation in the" } ]

[ { "docid": "22200387", "title": "", "text": "of Rutherford. Id. at 1448. Jones argues strenuously that she needed this instruction to allow the jury to draw an inference that although there was no evidence that identified any particular officer who caused the destruction in her living room and the urine smell in her iron, the officers who were present in her house during the search were individually liable for the damage. We conclude that the district court did not abuse its discretion by refusing to give this instruction. The instruction swept too broadly, inviting the jury to find liability where our caselaw does not permit it. Moreover, to the extent that an instruction on group liability was necessary or appropriate, the district court gave other instructions that enabled the jury to consider that issue adequately. In her proposed instruction, Jones asks us to take the holding of Rutherford to an extreme we did not intend. In Rutherford, our focus was on permissible inferences. We did not indicate that the jury could find against the defendants without finding that they had some personal involvement in the beating. Rather, Rutherford had produced enough evidence to sustain a verdict against the officers, and we held that the jury could use Rutherford’s testimony as evidence to find some individual participation by each officer in the unlawful conduct. Id. His testimony provided the required link of personal involvement to deprivation of his constitutional rights required to hold an officer liable. Rutherford does not suggest, as would Jones’s proposed instruction, an inference of individual liability of individual officers based on merely being present at the scene of the search. In Rutherford, there was substantial evidence of individual liability of the defendant officers beyond their merely being present. The officers’ testimony was that they participated in detaining, arresting and handcuffing Rutherford. Rutherford’s testimony was that he saw each of their faces when he was being beaten. The officers were integral participants in the alleged unlawful act, not simply present outside the Berkeley residence hotel. In this case, unlike Rutherford, the district court let the case go to the jury on the facts presented. Allowing" }, { "docid": "22200384", "title": "", "text": "case was whether the officers unreasonably searched Jones’s house in violation of her Fourth and Fourteenth Amendment rights. In order for a person acting under color of state law to be liable under section 1983 there must be a showing of personal participation in the alleged rights deprivation: there is no respondeat superior liability under section 1983. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (rejecting the concept of respondeat superior liability in the section 1983 context and requiring individual liability for the constitutional violation); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.1989) (requiring personal participation in the alleged constitutional violations); May v. Enomoto, 633 F.2d 164, 167 (9th Cir.1980) (holding that section 1983 liability must be based on the personal involvement of the defendant). In Chuman v. Wright, we defined the contours of individual liability further when we stated a plaintiff could not hold an officer liable because of his membership in a group without a showing of individual participation in the unlawful conduct. 76 F.3d 292, 294 (9th Cir.1996). Chuman does not appear to bar any use of a group liability instruction, but does seem to require the plaintiff to first establish the “integral participation” of the officers in the alleged constitutional violation. Id. (quoting Melear v. Spears, 862 F.2d 1177, 1186 (5th Cir.1989)) (internal quotations omitted). Chuman clearly states that a “team liability” instruction that does not require any individual liability: is an improper alternative, grounds [sic] for liability. It removes individual liability as the issue and allows a jury to find a defendant liable on the ground that even if the defendant had no role in the unlawful conduct, he would nonetheless be guilty if the conduct was the result of a “team effort.” Id. at 295. With this legal framework in place, we consider each of Jones’s instructions below. 2. Jones’s proposed jury instructions a. Proposed Instruction 1: When a plaintiff cannot specifically state which defendant police officers engaged in an unreasonable search of a plaintiffs residence, but there is evidence to specify that certain" }, { "docid": "23657324", "title": "", "text": "a seizure. Moreover, the County defendants’ argument that the Fourth Amendment does not prohibit the use of excessive force during a search, in the absence of a seizure, has no merit. This Circuit has clearly recognized that the use of excessive force during a search makes that search unreasonable under the Fourth Amendment. See Chuman v. Wright, 76 F.3d 292, 293 (9th Cir.1996) (excessive force claim recognized where officers stormed residence and caused unnecessary property damage during search). Thus, regardless of whether Boyd was seized, she had a Fourth Amendment right to be free from excessive force during the execution of the search warrant. Defendants also argue that even if a Fourth Amendment violation occurred, only Ellison (the individual who deployed the flash-bang) can be liable for that violation. Defendants rely primarily on Chuman, where this Court rejected a “team effort” theory of section 1983 liability. See Chuman, 76 F.3d at 294. In that case, the district court gave the following jury instruction: “Concerning the search of the residence, if you find the searches were conducted in an unreasonable manner, then no matter whose actions ultimately inflicted the plaintiffs injury, when the deprivation of the rights is the result of a ‘team effort,’ all members of the ‘team’ may be held liable.” Id. We concluded this instruction was improper because it allowed liability to attach to “a mere bystander” who had “no role in the unlawful conduct.” Id. at 294-95. Following the Fifth Circuit’s analysis in Melear v. Spears, 862 F.2d 1177 (5th Cir.1989), we required “integral participation” by each officer as a predicate to liability. See Chuman, 76 F.3d at 294. Defendants improperly construe Chuman as precluding liability under the circumstances of this case. Specifically, “integral participation” does not require that each officer’s actions themselves rise to the level of a constitutional violation. For example, in James ex rel. James v. Sadler, 909 F.2d 834 (5th Cir.1990), cited with approval by Chuman, the court held that officers who provided armed backup during an unconstitutional search were “integral” to that search, and were therefore participants rather than mere bystanders. Id." }, { "docid": "22502541", "title": "", "text": "home without a warrant. An officer can be held liable for a constitutional violation only when there is a showing of \"integral participation\" or \"personal involvement\" in the unlawful conduct, as opposed to mere presence at the scene. Jones v. Williams , 297 F.3d 930, 935-36 (9th Cir. 2002). As we held in Boyd v. Benton County , 374 F.3d 773 (9th Cir. 2004), \"integral participation does not require that each officer's actions themselves rise to the level of a constitutional violation.\" Id. at 780. Rather, we have recognized that officers who provide armed backup, stand at the door with a gun while other officers conduct a search inside an apartment, and participate in the search operation are integral participants. See id. ; Melear v. Spears , 862 F.2d 1177, 1186 (5th Cir. 1989) (holding that an officer who was a \"full, active participant in the [unconstitutional] search, not a mere bystander,\" was liable for Fourth Amendment violation). The County points to no basis for its suggestion that the deputies' knowledge of the senior officer's investigation, rather than their own actions, dictates whether they were integral participants. Here, the deputies developed a plan of entry with Combs and Purcell, provided armed backup to Combs as he broke into Bonivert's back door, and entered the home on Combs' heels. Viewing the facts in the light most favorable to Bonivert, the deputies were not bystanders but integral participants in the unlawful entry and are not entitled to qualified immunity. III. FOURTH AMENDMENT EXCESSIVE FORCE CLAIM We next consider whether the officers were entitled to qualified immunity on Bonivert's excessive force claim. A. CLEARLY ESTABLISHED RIGHT Excessive use of force in effectuating a seizure violates the Fourth Amendment. Graham v. Connor , 490 U.S. 386, 388, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). As with the unlawful entry claim, we judge the reasonableness of the use of force from the perspective of a reasonable officer at the scene, rather than in hindsight. Ryburn , 565 U.S. at 477, 132 S.Ct. 987. The instance of force at issue on appeal is Combs' use of" }, { "docid": "23657325", "title": "", "text": "conducted in an unreasonable manner, then no matter whose actions ultimately inflicted the plaintiffs injury, when the deprivation of the rights is the result of a ‘team effort,’ all members of the ‘team’ may be held liable.” Id. We concluded this instruction was improper because it allowed liability to attach to “a mere bystander” who had “no role in the unlawful conduct.” Id. at 294-95. Following the Fifth Circuit’s analysis in Melear v. Spears, 862 F.2d 1177 (5th Cir.1989), we required “integral participation” by each officer as a predicate to liability. See Chuman, 76 F.3d at 294. Defendants improperly construe Chuman as precluding liability under the circumstances of this case. Specifically, “integral participation” does not require that each officer’s actions themselves rise to the level of a constitutional violation. For example, in James ex rel. James v. Sadler, 909 F.2d 834 (5th Cir.1990), cited with approval by Chuman, the court held that officers who provided armed backup during an unconstitutional search were “integral” to that search, and were therefore participants rather than mere bystanders. Id. at 837. Additionally, in Melear itself, the Fifth Circuit held that an officer who does not enter an apartment, but stands at the door, armed with his gun, while other officers conduct the search, can nevertheless be a “full, active participant” in the search. See Melear, 862 F.2d at 1186. The facts of this ease clearly support a finding that each officer involved in the search operation was an “integral participant.” First, as in James and Melear, the officers in this case stood armed behind Ellison while he reached into the doorway and deployed the flash-bang. Second, the use of the flash-bang was part of the search operation in which every officer participated in some meaningful way. Third, every officer was aware of the decision to use the flash-bang, did not object to it, and participated in the search operation knowing the flash-bang was to be deployed. Therefore, under the integral participation analysis adopted in Chuman, each defendant may be held liable for the Fourth Amendment violation outlined above. See 76 F.3d at 294. Consequently," }, { "docid": "14150398", "title": "", "text": "was improper. It is unnecessary that we reach the other instruction given. Initially, the plaintiffs assert that Fronter-otta waived this issue because he neither timely nor properly objected. We do not agree. After a careful review of the record, we conclude that Fronterotta properly objected to both instructions. Thus, the issue is not waived. Jury instructions must be formulated so that they fairly and adequately cover the issues presented, correctly state the law, and are not misleading. Fikes v. Cleghorn, 47 F.3d 1011, 1013 (9th Cir.1995). Whether a jury instruction properly states the elements to be proved at trial is a question of law which we review de novo. See Gizoni v. Southwest Marine Inc., 56 F.3d 1138, 1142 (9th Cir.) cert. denied, &emdash; U.S. -, 116 S.Ct. 381, 133 L.Ed.2d 304 (1995). If a jury instruction is erroneous, we will reverse the judgment unless the error is more probably than not harmless. Larez v. Holcomb, 16 F.3d 1513, 1516-17 (9th Cir.1994). The court instructed the jury that: Concerning the search of the residence, if you find the searches were conducted in an unreasonable manner, then no matter whose actions ultimately inflicted the plaintiffs injury, when the deprivation of the rights is the result of a “team effort,” all members of the “team” may be held liable. This instruction was based on a Fifth Circuit case, Melear v. Spears, 862 F.2d 1177 (5th Cir.1989). In Melear, the defendant-officer was found liable under section 1983 for his participation in a warrantless search of an apartment building without probable cause. Among other arguments, the defendant argued that he could not be held liable under section 1983 because he participated “less actively” in the search than the other officer and that he did not commit physical damage. Id. at 1186. The Fifth Circuit disagreed. It concluded that “[h]e was a full, active participant in the search, not a mere bystander.” Id. “Because the jury could properly have found that the search was unconstitutional, it was also justified in finding both officers liable for their integral participation in the violation.” Id. At the outset," }, { "docid": "14150400", "title": "", "text": "we note that nowhere in Melear did the court use the term “team effort” as it was put forth in the instruction. That term was added by the district court in this ease. Second, we do not read Melear to allow group liability in and of itself without individual participation in the unlawful conduct. To the contrary, the Fifth Circuit required that the jury find the officers liable for their “integral participation” in the unlawful conduct. Being a mere bystander was insufficient. See id. at 1186. See also James ex rel. James v. Sadler, 909 F.2d 834, 837 (5th Cir.1990) (holding that under Melear, the backup officers’ conduct, who merely remained armed during the search, was “integral to the search” and made them participants rather than mere bystanders). Thus, the initial problem with the instruction as given is that it deviated from the “integral participation” standard in Melear and was expanded to include liability based on team effort alone. We doubt that the Melear court intended such an expansive holding. The underlying problem with a “team effort” theory is that it is an improper alternative grounds for liability. It removes individual liability as the issue and allows a jury to find a defendant liable on the ground that even if the defendant had no role in the unlawful conduct, he would nonetheless be guilty if the conduct was the result of a “team effort.” This liability is much broader than allowed in Melear, which required at least an integral participation by the offending defendant. In essence, the “team effort” standard allows the jury to lump all the defendants together, rather than require it to base each individual’s liability on his own conduct. The instruction is erroneous and it is not harmless error because the jury may have found liability on the improper ground. See Larez, 16 F.3d at 1516-17. REVERSED and REMANDED for a new trial." }, { "docid": "22200395", "title": "", "text": "provides backup may be held liable under section 1983. Jones’s authority for this instruction is James ex rel. James v. Sadler, 909 F.2d 834, 837 (5th Cir.1990). Jones’s proposed instruction seeks to hold that officers who fit into these categories are by definition “integral participants.” In James, the Fifth Circuit held that the officers who remained armed during the search of the beauty shop were “integral to the search” and, therefore, were participants, rather than just bystanders. Id. The Fifth Circuit did not hold that remaining armed meant that the officers were participants. Rather, because of the factual situation in James, those armed officers played an integral role in the conduct, and therefore could be held liable for her alleged constitutional violations. Our analysis has shown that holding an officer liable who was merely present at the search is not permissible. In this case Jones cannot rely on James to state that simply because an officer remains armed during a search, he is a participant and therefore liable for any violations. The evidence in this case did not indicate that those officers who simply remained outside were integral participants in the “unlawful conduct,” that is, the destruction of personal property and the manner in which Jones’s house was searched. Therefore, as a matter of law, the district court did not err when it refused to give this instruction. CONCLUSION Jones proposed three instructions that were properly rejected by the district court. The permissible inference in her first instruction was covered when the case went to the jury, and the instructions given by the district court adequately covered all of the multiple actor issues in the case. Jones’s second instruction was a misstatement of law in the Ninth Circuit. Her third instruction sought to impose liability based simply on the job category, a violation of our requirement that integral participation and individual liability be proved in every case. We reject the idea that mere presence at a search or membership in a group, without personal involvement in and a causal connection to the unlawful act, can create liability under section 1983." }, { "docid": "22200394", "title": "", "text": "the participants could be held to be the proximate cause of plaintiffs injury. Id. at 561. Jones cannot rely on Gutierrez-Rodriguez because her proposed instruction is exactly like the one we rejected in Chuman, which had no requirement of integral participation or individual involvement in the allegedly unconstitutional activity. Jones’s proposed “team effort” instruction does not include Chuman’s requirement of first finding some integral participation or individual involvement in unlawful conduct. Therefore, the instruction was an incorrect statement of law in the Ninth Circuit, and the district court was correct in rejecting it. c. Proposed Instruction 3: An officer who is present until a search is completed and the seized items removed from the premises may be held liable under section 1983. An officer who remains armed on the premises throughout a search may be held liable under section 1983. An officer who guards a detainee outside while a search proceeds may be held liable under section 1983 because his activities are integral to the search and renders [sic] him a participant. An officer who provides backup may be held liable under section 1983. Jones’s authority for this instruction is James ex rel. James v. Sadler, 909 F.2d 834, 837 (5th Cir.1990). Jones’s proposed instruction seeks to hold that officers who fit into these categories are by definition “integral participants.” In James, the Fifth Circuit held that the officers who remained armed during the search of the beauty shop were “integral to the search” and, therefore, were participants, rather than just bystanders. Id. The Fifth Circuit did not hold that remaining armed meant that the officers were participants. Rather, because of the factual situation in James, those armed officers played an integral role in the conduct, and therefore could be held liable for her alleged constitutional violations. Our analysis has shown that holding an officer liable who was merely present at the search is not permissible. In this case Jones cannot rely on James to state that simply because an officer remains armed during a search, he is a participant and therefore liable for any violations. The evidence in this" }, { "docid": "79708", "title": "", "text": "that the individual officers caused the unlawful seizure, and noting in one instance that the defendant’s actions were “instrumental to the seizure”). In this context, that is sufficient to establish causation. See, e.g., KRL v. Estate of Moore, 512 F.3d 1184, 1193 (9th Cir.2008) (denying qualified immunity to an officer who relied on a facially invalid warrant in conducting a search because he played “an integral role in the overall investigation” that led to the issuance of the defective warrant); Hall v. Shipley, 932 F.2d 1147, 1154 (6th Cir.1991) (recognizing general rule that mere presence is insufficient to create liability, but upholding denial of qualified immunity based on record evidence that the officer had been “the prime mover” in obtaining the search warrant and “participated in the search once inside the dwelling” (internal quotation marks omitted)); James v. Sadler, 909 F.2d 834, 837 (5th Cir.1990) (officers who did not physically perform pat-down but who “remained armed on the premises throughout the entire search” could be held liable under Section 1983 as “participants rather than bystanders”). Because the common-law privilege Defendants invoke overlaps with but is harder to establish than qualified immunity, the Defendants’ argument on that score “fails for essentially the same reasons already set forth.” District of Columbia v. Minor, 740 A.2d 523, 531 (D.C.1999) (noting that the standard for common-law privilege “resembles the section 1983 probable cause and qualified immunity standards ... (with the added clear articulation of the requirement of good faith)”); cf. Bradshaw v. District of Columbia, 43 A.3d 318, 323 (D.C.2012) (explaining that although the officer “need not demonstrate probable cause in the constitutional sense” for privilege to attach, the officer must show “(1) he or she believed, in good faith, that his or her conduct was lawful, and (2) this belief was reasonable” (brackets and internal quotation marks omitted)). Accordingly, we affirm the district court’s judgment insofar as it relates to Plaintiffs’ Section 1983 and common-law false arrest claims. III. Finally, we address the District’s claim that the‘district court erred in granting summary judgment to the Plaintiffs on their common-law negligent supervision claim. The" }, { "docid": "22200390", "title": "", "text": "the search. According to Chuman, a “team effort” standard is impermissible because it “allows the jury to lump all the defendants together, rather than require it to base each individual’s liability on his own conduct.” 76 F.3d at 295. Nothing in Jones’s proposed instruction requires the jury to find that the officers personally participated in the search, or that they were integral to the search in order to find them individually liable. In Chuman, we stated that either integral participation or personal involvement was required before a jury could find officers liable. Id. at 294. As written, Jones’s instruction is an incorrect statement of law in the Ninth Circuit, and the district court was correct to reject it. Besides the destruction in her living room, the other incident that Jones claimed required a group liability instruction was the urine smell in the iron. Jones claimed that when she went to iron her clothes on Sunday she smelled a funny smell from the iron. When she asked her son, he said he too had smelled it earlier in the day when he had ironed. Jones testified that the smell was that of urine. Only two officers were asked about urinating in the iron. Both officers denied it. As our analysis above demonstrates, holding individual officers who were merely present at the search liable for such misconduct would go well beyond what Chuman and Rutherford would allow. The judge’s decision not to give Jones’s proposed instruction with regard to the alleged unreasonable search was not error for another reason: the judge gave the jury instructions that properly covered the law. See Brewer v. City of Napa, 210 F.3d 1093, 1097 (9th Cir.2000) (stating that failure to give a specific instruction is not error when the instructions taken together properly cover the subject). The judge gave the jury three instructions about supervisory liability, which correctly stated the law that “[a] supervisor may be liable if there exists either (1) his or her personal involvement in the constitutional deprivation, or (2) a sufficient causal connection between the supervisor’s wrongful conduct and the constitutional violation.”" }, { "docid": "14150399", "title": "", "text": "you find the searches were conducted in an unreasonable manner, then no matter whose actions ultimately inflicted the plaintiffs injury, when the deprivation of the rights is the result of a “team effort,” all members of the “team” may be held liable. This instruction was based on a Fifth Circuit case, Melear v. Spears, 862 F.2d 1177 (5th Cir.1989). In Melear, the defendant-officer was found liable under section 1983 for his participation in a warrantless search of an apartment building without probable cause. Among other arguments, the defendant argued that he could not be held liable under section 1983 because he participated “less actively” in the search than the other officer and that he did not commit physical damage. Id. at 1186. The Fifth Circuit disagreed. It concluded that “[h]e was a full, active participant in the search, not a mere bystander.” Id. “Because the jury could properly have found that the search was unconstitutional, it was also justified in finding both officers liable for their integral participation in the violation.” Id. At the outset, we note that nowhere in Melear did the court use the term “team effort” as it was put forth in the instruction. That term was added by the district court in this ease. Second, we do not read Melear to allow group liability in and of itself without individual participation in the unlawful conduct. To the contrary, the Fifth Circuit required that the jury find the officers liable for their “integral participation” in the unlawful conduct. Being a mere bystander was insufficient. See id. at 1186. See also James ex rel. James v. Sadler, 909 F.2d 834, 837 (5th Cir.1990) (holding that under Melear, the backup officers’ conduct, who merely remained armed during the search, was “integral to the search” and made them participants rather than mere bystanders). Thus, the initial problem with the instruction as given is that it deviated from the “integral participation” standard in Melear and was expanded to include liability based on team effort alone. We doubt that the Melear court intended such an expansive holding. The underlying problem with a" }, { "docid": "22200389", "title": "", "text": "the case to go to the jury followed our holding in Rutherford, in which we held that the jury should have been allowed to draw inferences about the liability of the individual officers based on Rutherford’s testimony. Id. Even though the officers denied causing the damage to Jones’s living room, the jury in Jones’s case was allowed to draw reasonable inferences from the officers’ testimony, Bowling’s testimony, and the other evidence as to whether the officers should have been held individually liable. The permissible inferences in Jones’s proposed instruction were adequately covered by the fact that the court submitted the case to the jury, and, as we explain below, by the instructions. We decline to require an instruction that would invite a jury to find all of the officers liable for an alleged constitutional violation merely for being present at the scene of an alleged unlawful act. Contrary to our decision in Chuman, Jones’s proposed instruction would have permitted the jury to find the individual officers liable for merely being present at the scene of the search. According to Chuman, a “team effort” standard is impermissible because it “allows the jury to lump all the defendants together, rather than require it to base each individual’s liability on his own conduct.” 76 F.3d at 295. Nothing in Jones’s proposed instruction requires the jury to find that the officers personally participated in the search, or that they were integral to the search in order to find them individually liable. In Chuman, we stated that either integral participation or personal involvement was required before a jury could find officers liable. Id. at 294. As written, Jones’s instruction is an incorrect statement of law in the Ninth Circuit, and the district court was correct to reject it. Besides the destruction in her living room, the other incident that Jones claimed required a group liability instruction was the urine smell in the iron. Jones claimed that when she went to iron her clothes on Sunday she smelled a funny smell from the iron. When she asked her son, he said he too had smelled it" }, { "docid": "79707", "title": "", "text": "disobedience to law, no matter how central the law is to the preservation of citizens’ rights.” Id. For good reason, this Court has never adopted such a rule. That leaves us with the contention that Officers Parker and Campanale cannot be held liable because they did not personally arrest each of the Plaintiffs. But Defendants’ argument misapprehends the applicable legal standard for causation in the Section 1983 context. As this court has recognized, the Plaintiffs were required to “produce evidence ‘that each [officer], through [his] own individual actions, has violated the Constitution.’” Elkins, 690 F.3d at 564 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 676, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). Here, the cause of the group arrest was the investigation and erroneous determination regarding probable cause. Both Officers Parker and Cam-panale were the hub of that investigation: they gathered evidence, including photographs of the people in the house, and actively participated in questioning the Plaintiffs and other key witnesses such as Hughes and Peaches. See id. at 566-68 (assessing whether the evidence showed that the individual officers caused the unlawful seizure, and noting in one instance that the defendant’s actions were “instrumental to the seizure”). In this context, that is sufficient to establish causation. See, e.g., KRL v. Estate of Moore, 512 F.3d 1184, 1193 (9th Cir.2008) (denying qualified immunity to an officer who relied on a facially invalid warrant in conducting a search because he played “an integral role in the overall investigation” that led to the issuance of the defective warrant); Hall v. Shipley, 932 F.2d 1147, 1154 (6th Cir.1991) (recognizing general rule that mere presence is insufficient to create liability, but upholding denial of qualified immunity based on record evidence that the officer had been “the prime mover” in obtaining the search warrant and “participated in the search once inside the dwelling” (internal quotation marks omitted)); James v. Sadler, 909 F.2d 834, 837 (5th Cir.1990) (officers who did not physically perform pat-down but who “remained armed on the premises throughout the entire search” could be held liable under Section 1983 as “participants rather than bystanders”)." }, { "docid": "19795035", "title": "", "text": "search, can ... be a ‘full, active participant’ in the search” and therefore can be subject to § 1983 liability. Boyd v. Benton County, 374 F.3d 773, 780 (9th Cir.2004) (emphasis added). Each of the cases cited in Boyd in which the “integral participant” rule was deemed satisfied involved officers who “provided armed backup during an unconstitutional search.” Id. While the “integral participant” rule may extend liability beyond simply those officers who provide “armed backup,” it is clear that an officer who waits in the front yard interviewing a witness and does not participate in the unconstitutional search in any fashion cannot be held liable under Chuman. Hopkins argues that Officer Nguyen is not entitled to qualified immunity because he was part of a conversation in which the three officers formed a “plan of action” to enter the house. However, the undisputed facts show that the decision to enter Hopkins’ home was not made or discussed during that conversation, but rather was made in a separate conversation between Officers Buelow and Bonvicino at the side entrance to Hopkins’ house. Accordingly, Officer Nguyen participated in neither the planning nor the execution of the unlawful search. We therefore reverse the district court with respect to Officer Nguyen’s liability and hold that he is entitled to qualified immunity on the unlawful search claim. D. Clearly Established Law Because Officer Nguyen did not commit a constitutional violation with respect to Hopkins’ warrantless-entry claim, we need not proceed to the second step of the qualified-immunity analysis with respect to him. However, because both Officer Bonvicino and Officer Buelow did violate Hopkins’ Fourth Amendment rights by forcibly entering his home without a warrant in the absence of any valid justification under either the emergency or exigency exceptions, in order to determine whether they are entitled to qualified immunity on this claim we must examine whether the con tours of those two exceptions were clearly established in 2003 when they engaged in the conduct at issue. To begin with the emergency exception, our decision in United States v. Cervantes clearly establishes that at the time of the" }, { "docid": "8571504", "title": "", "text": "here. See Golden Gate Hotel Ass’n v. City & Cnty. of San Francisco, 18 F.3d 1482, 1487 (9th Cir.1994) (“As a general rule, ‘a federal court does not consider an issue not passed upon below.’ ”) (quoting Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976)). II. Claims Against the County of Santa Barbara Defendants A. Integral Participation The Bravos also contend that SBSO agents are liable for the unreasonable manner in which the warrant was executed by the SBPD SWAT team, arguing that the SBSO’s role in initially scouting the Bravo residence amounted to “integral participation” in the unlawful search. Their argument is without merit. Section 1983 liability extends to those who perform functions “integral” to an unlawful search, even if their individual actions do not themselves rise to the level of a constitutional violation. See Boyd v. Benton Cnty., 374 F.3d 773, 780 (9th Cir.2004); Chuman v. Wright, 76 F.3d 292, 294 (9th Cir.1996). However, the “integral participant” doctrine does not implicate government agents who are “mere bystanders” to an unconstitutional search. Compare Blankenhorn v. City of Orange, 485 F.3d 463, 481 n. 12 (9th Cir.2007) (identifying as an integral participant an officer who helped in handcuffing the plaintiff); Boyd, 374 F.3d at 780 (same for officers who were “aware of the decision to use the flash-bang, did not object to it, and participated in the search operation knowing the flash-bang was to be deployed”); James ex rel. James v. Sadler, 909 F.2d 834, 837 (5th Cir.1990) (same for officers who provided armed backup during unconstitutional search); Melear v. Spears, 862 F.2d 1177, 1186 (5th Cir.1989) (same for officer who did not enter apartment but stood armed at the door during the search); with Torres v. City of Los Angeles, 548 F.3d 1197, 1206 (9th Cir.2008) (finding that an officer who neither instructed others to make the arrest nor was present during the arrest was not an integral participant); Blankenhorn, 485 F.3d at 481 n. 12 (same for an officer who arrived at the scene after completion of allegedly unlawful arrest and an" }, { "docid": "22200393", "title": "", "text": "officers liable when there is no evidence to link them to specific actions would have been erroneous as a matter of law. Chuman, 76 F.3d at 294. Jones’s requested instruction would have gone beyond Rutherford; instead of allowing a permissible inference, it would have afforded an impermissible basis for liability. Even if a group liability instruction could be giyen in very limited circumstances, Jones’s case is not one of them. We do not foreclose the possibility of a group liability instruction ever being given, but this case does not present the factual situation where such an instruction would be legally proper. b. Proposed Instruction 2: No matter whose actions ultimately inflicted the plaintiffs injury, when the deprivation of rights is the result of a team effort all members of the team may be held liable. Jones’s instruction relies on Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553 (1st Cir.1989). In Gutierrez-Rodriguez, four police officers shot at the plaintiff as he was driving away from a traffic stop. The court held that under this factual scenario all of the participants could be held to be the proximate cause of plaintiffs injury. Id. at 561. Jones cannot rely on Gutierrez-Rodriguez because her proposed instruction is exactly like the one we rejected in Chuman, which had no requirement of integral participation or individual involvement in the allegedly unconstitutional activity. Jones’s proposed “team effort” instruction does not include Chuman’s requirement of first finding some integral participation or individual involvement in unlawful conduct. Therefore, the instruction was an incorrect statement of law in the Ninth Circuit, and the district court was correct in rejecting it. c. Proposed Instruction 3: An officer who is present until a search is completed and the seized items removed from the premises may be held liable under section 1983. An officer who remains armed on the premises throughout a search may be held liable under section 1983. An officer who guards a detainee outside while a search proceeds may be held liable under section 1983 because his activities are integral to the search and renders [sic] him a participant. An officer who" }, { "docid": "22502540", "title": "", "text": "had no \"probable cause to believe that [there was] contraband or evidence of a crime [in Bonivert's house],\" the exigency doctrine did not justify their entry. Id . We recognize that police officers responding to reports of domestic violence are \"not conducting a trial, but\" rather are \"required to make ... on-the-spot decision[s].\" Black , 482 F.3d at 1040. In this case, however, the facts of the situation did not entitle officers to \"disregard the overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic.\" Payton , 445 U.S. at 601, 100 S.Ct. 1371. The officers are not entitled to qualified immunity on Bonivert's warrantless entry claim because it was clearly established law, as of 2012, that neither consent, the emergency aid exception, nor the exigency exception justified the officers' warrantless entry. D. INTEGRAL PARTICIPATION The final issue we address with respect to Bonivert's unlawful entry claim is whether the County Deputies Gary and Joseph Snyder are liable for Combs' decision to enter Bonivert's home without a warrant. An officer can be held liable for a constitutional violation only when there is a showing of \"integral participation\" or \"personal involvement\" in the unlawful conduct, as opposed to mere presence at the scene. Jones v. Williams , 297 F.3d 930, 935-36 (9th Cir. 2002). As we held in Boyd v. Benton County , 374 F.3d 773 (9th Cir. 2004), \"integral participation does not require that each officer's actions themselves rise to the level of a constitutional violation.\" Id. at 780. Rather, we have recognized that officers who provide armed backup, stand at the door with a gun while other officers conduct a search inside an apartment, and participate in the search operation are integral participants. See id. ; Melear v. Spears , 862 F.2d 1177, 1186 (5th Cir. 1989) (holding that an officer who was a \"full, active participant in the [unconstitutional] search, not a mere bystander,\" was liable for Fourth Amendment violation). The County points to no basis for its suggestion that the deputies' knowledge of the senior officer's" }, { "docid": "19795034", "title": "", "text": "search. This argument, however, misunderstands our circuit precedent. In Chuman v. Wright, 76 F.3d 292 (9th Cir.1996), we rejected “the ‘team ef fort’ standard [that] allows the jury to lump all the defendants together, rather than require it to base each individual’s liability on his own conduct.” 76 F.3d at 295. In that case, we held that a police officer’s “[b]eing a mere bystander [to his colleagues’ conduct] was insufficient” to support § 1983 liability. Id. at 294. Hopkins seeks to distinguish Chuman by relying on the “integral participant” rule, which, as its name suggests, extends liability to those actors who were integral participants in the constitutional violation, even if they did not directly engage in the unconstitutional conduct themselves. However, this rule requires more participation and support on the part of a particular defendant than the undisputed facts in this case show Officer Nguyen to have provided. Under the integral participant rule, “an officer who does not enter an apartment, but stands at the door, armed with his gun, while other officers conduct the search, can ... be a ‘full, active participant’ in the search” and therefore can be subject to § 1983 liability. Boyd v. Benton County, 374 F.3d 773, 780 (9th Cir.2004) (emphasis added). Each of the cases cited in Boyd in which the “integral participant” rule was deemed satisfied involved officers who “provided armed backup during an unconstitutional search.” Id. While the “integral participant” rule may extend liability beyond simply those officers who provide “armed backup,” it is clear that an officer who waits in the front yard interviewing a witness and does not participate in the unconstitutional search in any fashion cannot be held liable under Chuman. Hopkins argues that Officer Nguyen is not entitled to qualified immunity because he was part of a conversation in which the three officers formed a “plan of action” to enter the house. However, the undisputed facts show that the decision to enter Hopkins’ home was not made or discussed during that conversation, but rather was made in a separate conversation between Officers Buelow and Bonvicino at the side" }, { "docid": "22200396", "title": "", "text": "case did not indicate that those officers who simply remained outside were integral participants in the “unlawful conduct,” that is, the destruction of personal property and the manner in which Jones’s house was searched. Therefore, as a matter of law, the district court did not err when it refused to give this instruction. CONCLUSION Jones proposed three instructions that were properly rejected by the district court. The permissible inference in her first instruction was covered when the case went to the jury, and the instructions given by the district court adequately covered all of the multiple actor issues in the case. Jones’s second instruction was a misstatement of law in the Ninth Circuit. Her third instruction sought to impose liability based simply on the job category, a violation of our requirement that integral participation and individual liability be proved in every case. We reject the idea that mere presence at a search or membership in a group, without personal involvement in and a causal connection to the unlawful act, can create liability under section 1983. The judgment of the district court is AFFIRMED. . In addition, Jones claims that misconduct on the part of the defense attorney, Paul Pa-quette (“Paquette”), was so pervasive that it deprived her of a fair trial. This part of the case and the claim of a preserved Monell issue are disposed of in an unpublished mem orandum disposition and are not further discussed here. . The holding in Rutherford that expressed a four-part test to determine if the individual officers acted in good faith has since been abrogated by Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). However, the Graham decision has no bearing on the group liability issue. . Although Jones's proposed instruction is not a pure \"group liability” or \"team effort” instruction, our holding in Chuman, that prevents a finding of liability without establishing that each named defendant was a participant in the alleged unlawful conduct, still applies. . The actual text of the three supervisory liability instructions is as follows: (1) \"A supervisory police officer may be" } ]

[ { "docid": "16268548", "title": "", "text": "fraud through the reactions of third parties does not vitiate her claim under 10b-5. Where, as is here alleged, the fraud consists of a failure to disclose, the difficult nature of plaintiffs claim — that if there had been disclosure, plaintiff would not have been harmed — has led the Supreme Court to hold that if the omission is material, reliance upon the omission will be presumed. Affiliated Ute Citizens v. United States, 406 U.S. 128, 153-54, 92 S.Ct. 1456, 1472, 31 L.Ed.2d 741 (1972). Proving reliance is necessarily difficult where the fraud has affected the market and damaged the plaintiff only through its effect on the market. Relying on Affiliated Ute, this and other circuits do not require direct reliance where the fraud affects the market, on the ground that an investor relies generally on the supposition that the market price is validly set and that no unsuspected fraud has affected the price. See Ross v. A.H. Robins Co., 607 F.2d 545, 554 (2d Cir. 1979), cert. denied, 446 U.S. 946, 100 S.Ct. 2175, 64 L.Ed.2d 802 (1980); Blackie v. Barrack, 524 F.2d 891, 906-07 (9th Cir. 1975), cert. denied, 429 U.S. 816, 97 S.Ct. 57, 50 L.Ed.2d 75 (1976). As in Affiliated Ute, Blackie held that the materiality of a fraud creates a presumption of reliance through its presumed effect on the market. See also Note, The Reliance Requirement in Private Actions Under SEC Rule 10b-5, 88 Harv.L.Rev. 584, 589 (1975). Our holding is no more than an extension of Blackie. Zelda Panzirer did not rely on the integrity of the market price because she did not rely on price, but she did rely on the integrity of the market in producing the information reported in The Wall Street Journal. Just as a material misrepresentation or omission is presumed to affect the price of the stock, so it should be presumed to affect the information “heard on the street” which led Zelda Panzirer to make her losing investment. Merely because Zelda Panzirer’s own claim survives summary judgment, however, does not make her fit to represent a class of" } ]

[ { "docid": "9445387", "title": "", "text": "actually harm investors directly — through actual reliance, or indirectly — by affecting the market upon which the investor relied and traded____ The plaintiffs established that [defendant’s] misleading prospectus inflated the price of the bonds on the open market, which these later purchasers relied upon in making their investment decision. See, Lipton v. Documation, Inc., 734 F.2d 740 (11th Cir.1984) (adopting fraud on the market theory of recovery), cert. denied, 469 U.S. 1132 [105 S.Ct. 814, 83 L.Ed.2d 807] (1985). Craig-Hallum seeks to limit this language to cases which, like Harris, primarily involve omissions. There is nothing in Harris to support such a limitation, however, and the court’s reliance on Lipton, which is not an omission case, weighs heavily against defendant’s argument. Craig-Hallum has not cited, and the court is not aware of, any case accepting the fraud on the market theory, but limiting it to omissions cases. Thus far, no circuit has rejected the theory. All adopting it have either held or suggested that it is applicable to affirmative misrepresentation cases. See Peil v. Speiser, 806 F.2d 1154 (3d Cir. 1986) (applying fraud on the market theory without determining whether case is one of omission or affirmative misrepresentation), Harris v. Union Electric Co., 787 F.2d 355, 367 n. 9 (8th Cir.) (relying on misrepresentation case) cert. denied, — U.S.-, 107 S.Ct. 94, 93 L.Ed.2d 45 (1986); Levinson v. Basic Inc., 786 F.2d 741 (6th Cir. 1986) (applying fraud on the market theory without determining whether case is one of omission or affirmative misrepresentation), cert. granted, — U.S.-, 107 S.Ct. 1284, 94 L.Ed.2d 142 (1987); Lipton v. Documation, Inc., 734 F.2d 740 (11th Cir.1984) (misrepresentation case), cert. denied, 469 U.S. 1132, 105 S.Ct. 814, 83 L.Ed.2d 807 (1985); T.J. Raney & Sons, Inc. v. Fort Cobb Irrigation Fuel Authority, 717 F.2d 1330 (10th Cir.1983) (applying fraud on the market theory without determining whether case is one of ommission or affirmative misrepresentation), cert. denied, 465 U.S. 1026, 104 S.Ct. 1285, 79 L.Ed.2d 687 (1985); Panzirer v. Wolf, 663 F.2d 365 (2d Cir.1981) (“a material misrepresentation or omission is presumed to affect" }, { "docid": "14859641", "title": "", "text": "Rule 10b-5 provides in full: It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails, or of any facility of any national securities exchange, (a)to employ any device, scheme or artifice to defraud, (b) to make any untrue statement of a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading, or (c) to engage in any act, practice or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security. 17 C.F.R. § 240.10b-5 (1988). . \"An efficient capital market is one in which the price of stock at a given time is the best estimate of what the price will be in the future.” Fischel, Use of Modern Finance Theory in Securities Fraud Cases Involving Actively Traded Securities, 38 Bus.Law. 1, 4 n. 9 (1982). A number of circuits have applied the fraud on the market theory to newly issued shares in an undeveloped market. See Lipton v. Documentation, Inc., 734 F.2d 740, 746 (11th Cir.1984), cert. denied sub nom. Peat, Marwick, Mitchell & Co. v. Lipton, 469 U.S. 1132, 105 S.Ct. 814, 83 L.Ed.2d 807 (1985); T.J. Raney & Sons v. Fort Cobb, Oklahoma Irrigation Fuel Auth., 717 F.2d 1330, 1333 (10th Cir.1983), cert. denied, Linde, Thomson, Fairchild, Langworthy, Kohn & Van Dyke v. T.J. Raney & Sons, 465 U.S. 1026, 104 S.Ct. 1285, 79 L.Ed.2d 687 (1984); Shores v. Sklar, 647 F.2d 462, 469-71 (5th Cir.1981) (en banc), cert. denied, 459 U.S. 1102, 103 S.Ct. 722, 74 L.Ed.2d 949 (1983); cf. Peil v. Speiser, 806 F.2d 1154, 1161 n. 10 (3rd Cir.1986) (\"While [the fraud on the market theory] presumption is plausible in developed markets, it may not be in the case of newly issued stock.’’). . The Second Circuit has suggested in dictum that recklessness satisfies the scienter requirement for aiding and abetting liability absent a fiduciary relationship where an accountant can reasonably" }, { "docid": "9445406", "title": "", "text": "of cases). The most frequently discussed scenario is that described in Blackie and cases following it; in these cases plaintiffs allege that defendants manipulated the price of actively-traded stock. The second category of cases involves fraudulent proxy statements allegedly designed \"to create an unfair ... exchange ratio in a forced merger situation.” Rose, 562 F.Supp at 1201 n. 3 (citations omitted). The third and most controversial category of cases involve newly-issued securities. See, e.g. Shores v. Sklar, 647 F.2d 462 (5th Cir.1981) (en banc), cert. denied, 459 U.S. 1102, 103 S.Ct. 722, 74 L.Ed.2d 949 (1983). Some commentators have criticized the extension of the fraud on the market theory to such cases, see, e.g. Note, The Fraud-on-the-Market Theory, 95 Harv.L. Rev. 1156 (1982). In cases of newly-issued securities, some courts have required a showing that the fraud resulted in the marketing of a wholly worthless security. See, e.g. Lipton v. Documation, Inc., 734 F.2d 740 (11th Cir.1984) (reading Shores to limit the application of the theory \"where new securities are involved to situations where but for the fraud the securities would not have been marketable.”), cert. denied, 469 U.S. 1132, 105 S.Ct. 814, 83 L.Ed.2d 807 (1985); Plastis v. E.F. Hutton & Co., 642 F.Supp. 1277 (W.D. Mich, 1986); Rose, 563 F.Supp. at 1201-03. Although Vervaecke v. Chiles, Heider & Co., 578 F.2d 713 (8th Cir.1978) does not discuss the fraud on the market theory as such, it has been read as a rejection of that theory in new issue cases. See, e.g. T.J. Raney & Sons v. Fort Cobb Irrigation Fuel Authority, 717 F.2d 1330, 1333 (10th Cir.1983), cert. denied, 465 U.S. 1026, 104 S.Ct. 1285, 79 L.Ed.2d 687 (1984). It is, of course, only the first of these theories or categories that is at issue in the instant case. . Defendant appears to equate the fraud on the market theory with the rule of Affiliated Ute. Both provide alternatives to the traditional means of proving causation. See, e.g., Blackie v. Barrack, 524 F.2d 891, 905-908 (9th Cir.1975), cert. denied, 429 U.S. 816, 97 S.Ct. 57, 50 L.Ed.2d 75" }, { "docid": "396884", "title": "", "text": "the other elements, it will be quite logical to presume that some investors relied on the misrepresentations resulting in a deflation of stock price and that members of the class relied upon the supposed integrity of the market price when selling their shares. The mere fact that the proof could be difficult does not preclude the opportunity to make the presentation at trial. The fraud on the market theory has been consistently applied in cases in which the defendants made public, material misrepresentations and the plaintiffs transacted shares in an impersonal, efficient market. See Lipton v. Documation, Inc., 734 F.2d 740 (11th Cir.1984), cert. denied, — U.S. —, 105 S.Ct. 814, 83 L.Ed.2d 807 (1985); T. J. Raney & Sons, Inc. v. Fort Cobb, Oklahoma Irrigation Fuel Auth., 717 F.2d 1330 (10th Cir.1983), cert. denied, 465 U.S. 1026, 104 S.Ct. 1285, 79 L.Ed.2d 687 (1984); Shores v. Sklar, 647 F.2d 462 (5th Cir.1981), cert. denied, 459 U.S. 1102, 103 S.Ct. 722, 74 L.Ed.2d 949 (1983); Ross v. A.H. Robins Co., 607 F.2d 545 (2d Cir.1979), cert. denied, 446 U.S. 946, 100 S.Ct. 2175, 64 L.Ed.2d 802 (1980); Blackie v. Barrack, 524 F.2d 891 (9th Cir.1975), cert. denied, 429 U.S. 816, 97 S.Ct. 57, 50 L.Ed.2d 75 (1976). Here, the defendants made public, material misrepresentations and the plaintiffs sold Basic stock in an impersonal, efficient market. Thus the class, as defined by the district court, has established the threshold facts for proving their loss. Cases in which application of the presumption of reliance has not been applied are easily distinguished because they do not involve a public misrepresentation or an impersonal exchange in the open market. For example, this Circuit, in Fridrich v. Bradford, 542 F.2d 307 (6th Cir.1976), cert. denied, 429 U.S. 1053, 97 S.Ct. 767, 50 L.Ed.2d 769 (1977), refused to apply the presumption of reliance. In Fridrich former shareholders of Old Line Life Insur-. anee brought an action to recover against five insiders who had traded Old Line stock while in possession of material information about merger negotiations. None of the trades were directly with the plaintiffs. The" }, { "docid": "19789510", "title": "", "text": "Holdsworth v. Strong, 545 F.2d 687 (10th Cir.1976), cert. denied 430 U.S. 955, 97 S.Ct. 1600, 51 L.Ed.2d 805 (1977). The Court disagrees. First, the fraud on the market theory has been consistently applied in cases in which the Defendants made public, material misrepresentations with respect to both newly issued securities and securities traded on the open market. Levinson v. Basic, Inc., 786 F.2d 741, 750-51 (6th Cir.1986); Peil v. Speiser, 806 F.2d 1154 [Current] Fed.Sec.L.Rep. (CCH) ¶ 93,006 at 94,942-94,943 (3d Cir.1986); Lipton v. Documation, Inc., 734 F.2d 740 (11th Cir.1984), cert. denied, 469 U.S. 1132, 105 S.Ct. 814, 83 L.Ed.2d 807 (1985); T.J. Raney & Sons, Inc. v. Fort Cobb, Okla. Irr. Fuel Auth., 717 F.2d 1330 (10th Cir.1983), cert. denied, 465 U.S. 1026, 104 S.Ct. 1285, 79 L.Ed.2d 687 (1984); Panzirer v. Wolf, 663 F.2d 365, 368 (2d Cir.1981), cert. denied, 458 U.S. 1107, 102 S.Ct. 3486, 73 L.Ed.2d 1368 (1982), vacated as moot sub nom, Price Waterhouse v. Panzirer, 459 U.S. 1027, 103 S.Ct. 434, 74 L.Ed.2d 594 (1982); Shores v. Sklar, 647 F.2d 462 (5th Cir.1981), cert. denied, 459 U.S. 1102, 103 S.Ct. 722, 74 L.Ed.2d 949 (1983); Blackie v. Barrack, 524 F.2d 891, 905-908 (9th Cir.1975), cert. denied, 429 U.S. 816, 97 S.Ct. 57, 50 L.Ed.2d 75 (1976). See also, Harris v. Union Elec. Co., 787 F.2d 355, 366-67 (8th Cir.1986). Moreover, other district courts in this circuit have also adopted this theory for securities traded on impersonal, actively traded markets. In re Home-Stake Production Co. Securities Litigation, 76 F.R.D. 351, 370-73 (N.D.Okla.1977); Texas International Securities Litigation, M.D.L. Docket No. 604 (D.Colo. March 19, 1986). Second, while the holding in T.J. Raney & Sons was confined to the limited situation involving newly issued securities traded on an undeveloped market, it demonstrated the Tenth Circuit’s understanding and acceptance of the economic basis for the fraud on the market theory. The reasoning in T.J. Raney & Sons and its discussion and approval of cases applying this theory to securities traded in an impersonal, efficient market, indicate that given the opportunity the Tenth Circuit would extend the" }, { "docid": "9445388", "title": "", "text": "Speiser, 806 F.2d 1154 (3d Cir. 1986) (applying fraud on the market theory without determining whether case is one of omission or affirmative misrepresentation), Harris v. Union Electric Co., 787 F.2d 355, 367 n. 9 (8th Cir.) (relying on misrepresentation case) cert. denied, — U.S.-, 107 S.Ct. 94, 93 L.Ed.2d 45 (1986); Levinson v. Basic Inc., 786 F.2d 741 (6th Cir. 1986) (applying fraud on the market theory without determining whether case is one of omission or affirmative misrepresentation), cert. granted, — U.S.-, 107 S.Ct. 1284, 94 L.Ed.2d 142 (1987); Lipton v. Documation, Inc., 734 F.2d 740 (11th Cir.1984) (misrepresentation case), cert. denied, 469 U.S. 1132, 105 S.Ct. 814, 83 L.Ed.2d 807 (1985); T.J. Raney & Sons, Inc. v. Fort Cobb Irrigation Fuel Authority, 717 F.2d 1330 (10th Cir.1983) (applying fraud on the market theory without determining whether case is one of ommission or affirmative misrepresentation), cert. denied, 465 U.S. 1026, 104 S.Ct. 1285, 79 L.Ed.2d 687 (1985); Panzirer v. Wolf, 663 F.2d 365 (2d Cir.1981) (“a material misrepresentation or omission is presumed to affect the price of the stock”), cert. granted, 458 U.S. 1105, 102 S.Ct. 3481, 73 L.Ed.2d 1365 vacated as moot, 459 U.S. 1027, 103 S.Ct. 434, 74 L.Ed.2d 594 (1982). Shores v. Sklar, 647 F.2d 462 (5th Cir.1981) (theory applies to both misrepresentation and omission cases), cert. denied, 459 U.S. 1102, 103 S.Ct. 722, 74 L.Ed.2d 949 (1983); Blackie v. Barrack, 524 F.2d 891, 906 (9th Cir.1975) (misrepresentation case), cert, denied, 429 U.S. 816, 97 S.Ct. 57, 50 L.Ed.2d 75 (1976). 2. Availability of Theory in Cases Against Brokers Defendant also argues that the fraud on the market theory should not be available in actions against brokers, but only against the security issuers. It appears that there are no published cases squarely on point. Cf. Seiler v. E.F. Hutton & Co., 102 F.R.D. 880 (D.N.J.1984) (questioning applicability of theory to suit against broker, but not resolving question). Most fraud on the market cases have been brought against issuers, but some have named other defendants as well. See, e.g., Blackie v. Barrack, 524 F.2d 891 (9th Cir.1975)" }, { "docid": "22053917", "title": "", "text": "prove reliance. Blackie v. Barrack, 524 F.2d 891, 907 (9th Cir.1975), cert. denied, 429 U.S. 816, 97 S.Ct. 57, 50 L.Ed.2d 75 (1976). When plaintiffs have established a breach of duty to disclose material information, they are relieved of the burden of proving they relied on the nondisclosure in making their decisions. The market price of stock is taken to be the basis for investment decisions; because the price reflected all available information, investors are presumed to have been misled by the nondisclosure. See Lipton v. Documation, Inc., 734 F.2d at 742-43; Abelson v. Strong, 644 F.Supp. 524, 528 (D.Mass.1986); Note, The Fraud on the Market Theory: Efficient Markets and the Defenses to an Implied 10b-5 Action, 70 Iowa L.Rev. 975, 978-86 (1985). We need not decide whether we think these assumptions are a sound method for dealing with the problem of proving reliance in nondisclosure cases. Reliance is not at issue here. What is important for our purposes is that the fraud on the market theory does not dispense with the requirement that there must be a duty to disclose before there can be liability. See Affiliated Ute Citizens v. United States, 406 U.S. at 153-54, 92 S.Ct. at 1472 (the “obligation to disclose and [the] withholding of a material fact establish the requi site element of causation in fact” in the absence of positive proof of reliance (emphasis added)). In every fraud on the market case Roeder cites, there was a duty to disclose because of misleading reports or statements. Lipton v. Documation, Inc., 734 F.2d at 741 (false claims of earnings and revenue in financial reports and statements); T.J. Raney & Sons, Inc. v. Fort Cobb, Oklahoma Irrigation Fuel Auth., 717 F.2d 1330, 1331-32 (10th Cir.1983) (misrepresentations of validity of bonds in offering circular and bond opinion), cert. denied, 465 U.S. 1026, 104 S.Ct. 1285, 79 L.Ed.2d 687 (1984); Panzirer v. Wolf, 663 F.2d 365, 366 (2d Cir.1981) (misleading information in annual report about corporation’s ability to function as a going concern), vacated as moot sub nom. Price Waterhouse v. Panzirer, 459 U.S. 1027, 103 S.Ct. 434," }, { "docid": "22600511", "title": "", "text": "the “fraud on the market” theory stems from a combination of these observations. In the case of a developed market, plaintiffs’ purchase of stock can be causally related to defendants’ misrepresentations even if plaintiffs did not directly rely on the misrepresentations. Moreover, the likelihood of this causal connection is so strong that it is logical to presume reliance and to shift the burden of rebutting that presumption to defendants. Therefore, Sharp supports our adoption of the \"fraud on the market” theory. See In Re LTV Securities Litigation, 88 F.R.D. 134 at 142. (\"Market reliance theory can also be viewed as an extension of the presumption of reliance in omission cases to misrepresentation cases involving market transactions.”). In addition, we note that some version of the fraud on the market theory has been adopted by every court to consider the question, see, e.g., Lipton v. Documation, Inc., 734 F.2d 740 (11th Cir.1984), cert. denied, 469 U.S. 1132, 105 S.Ct. 814, 83 L.Ed.2d 807 (1985); T.J. Raney & Sons, Inc. v. Fort Cobb, Oklahoma Irrigation Fuel Authority, 717 F.2d 1330 (10th Cir.1983), cert. denied, 465 U.S. 1026, 104 S.Ct. 1285, 79 L.Ed.2d 687 (1984); Panzirer v. Wolf, 663 F.2d 365 (2d Cir.1981), cert. denied, 458 U.S. 1107, 102 S.Ct. 3486, 73 L.Ed.2d 1368 (1982), vacated as moot sub nom. Price Waterhouse v. Panzirer, 459 U.S. 1027, 103 S.Ct. 434, 74 L.Ed.2d 594 (1982); Shores v. Sklar, 647 F.2d 462 (5th Cir.1981) (in banc), cert. denied, 459 U.S. 1102, 103 S.Ct. 722, 74 L.Ed.2d 949 (1983) (applying theory to purchase of newly-issued stock); Blackie v. Barrack, 524 F.2d 891 (9th Cir.1975); Rosenberg v. Digilog, 648 F.Supp. 40, Fed.Sec.L.Rep. (CCH) ¶ 92,274 at 91,895 (E.D.Pa.1985); In Re Ramada Inns Securities Litigation, 550 F.Supp. 1127, 1131 (D.Del.1982); In Re LTV Securities Litigation, 88 F.R.D. 134 (N.D.Tex.1980), and has been well-received by commentators, see, e.g., Rapp, Rule 10b-5 And “Fraud on the Market’’—Heavy Seas Meet Tranquil Shores, 39 Wash. & Lee. L.Rev. 861 (1982); Note, Fraud on the Market: An Emerging Theory of Recovery Under SEC Rule 10b5, 50 Geo.W.L.Rev. 627 (1982); Note, The Fraud-on-the-Market-Theory, 95" }, { "docid": "17273830", "title": "", "text": "alleges that deception resulted in inflated security prices on the open market. Finding that in such a context proof of direct reliance “imposes an unreasonable and irrelevant evidentiary burden,” id. at 907, the court held that the burden of proof shifts to the defendant to show either that the deception was immaterial, that an insufficient number of traders relied on the misleading information to inflate the price, or that the plaintiff purchased the securities knowing of the misrepresentation or would have still purchased the securities despite the misrepresentation. Id. at 906. The court concluded that such a rebuttable presumption would further the goals of the federal securities laws without dispensing with the requirement of causation, because reliance, albeit indirect reliance on the integrity of the market price, would still exist. Id. at 906-07. Since Blackie, four other circuits have adopted the fraud on the market theory to varying degrees for rule 10b-5 actions. See T.J. Raney & Sons, Inc. v. Fort Cobb, Oklahoma Irrigation Fuel Authority, 717 F.2d 1330 (10th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 1285, 79 L.Ed.2d 687 (1984); Panzirer v. Wolf, 663 F.2d 365 (2d Cir.1981), vacated as moot sub nom. Price Waterhouse v. Panzirer, 459 U.S. 1027, 103 S.Ct. 434, 74 L.Ed.2d 594 (1982); Shores v. Sklar, 647 F.2d 462 (5th Cir.1981) (en banc), cert. denied, 459 U.S. 1102, 103 S.Ct. 722, 74 L.Ed.2d 949 (1983). No circuit court has expressly rejected the theory, but see, Vervaecke v. Chiles, Heider & Company, Inc., 578 F.2d 713 (8th Cir.1978) (no presumption of reliance where new issues are involved and claims are based on affirmative misrepresentations), and the Supreme Court has yet to address the issue. The fraud on the market theory also has received generally favorable treatment from the commentators. See Black, Fraud on the Market: A Criticism of Dispensing with Reliance Requirements in Certain Open Market Transactions, 62 N.C.L.Rev. 435 (1984); Rapp, Rule 10b-5 and “Fraud-On-the-Market” — Heavy Seas Meet Tranquil Shores, 39 Wash. & Lee L.Rev. 861 (1982); Note, Fraud on the Market: An Emerging Theory of Recovery Under SEC Rule 1 Ob-5," }, { "docid": "14859642", "title": "", "text": "the fraud on the market theory to newly issued shares in an undeveloped market. See Lipton v. Documentation, Inc., 734 F.2d 740, 746 (11th Cir.1984), cert. denied sub nom. Peat, Marwick, Mitchell & Co. v. Lipton, 469 U.S. 1132, 105 S.Ct. 814, 83 L.Ed.2d 807 (1985); T.J. Raney & Sons v. Fort Cobb, Oklahoma Irrigation Fuel Auth., 717 F.2d 1330, 1333 (10th Cir.1983), cert. denied, Linde, Thomson, Fairchild, Langworthy, Kohn & Van Dyke v. T.J. Raney & Sons, 465 U.S. 1026, 104 S.Ct. 1285, 79 L.Ed.2d 687 (1984); Shores v. Sklar, 647 F.2d 462, 469-71 (5th Cir.1981) (en banc), cert. denied, 459 U.S. 1102, 103 S.Ct. 722, 74 L.Ed.2d 949 (1983); cf. Peil v. Speiser, 806 F.2d 1154, 1161 n. 10 (3rd Cir.1986) (\"While [the fraud on the market theory] presumption is plausible in developed markets, it may not be in the case of newly issued stock.’’). . The Second Circuit has suggested in dictum that recklessness satisfies the scienter requirement for aiding and abetting liability absent a fiduciary relationship where an accountant can reasonably foresee that third parties will rely on its audit or opinion letter. See Oleck v. Fisher, 623 F.2d 791, 794-95 (2d Cir.1980): see also Stevens v. Equidyne Exractive Indus. 1980, 694 F.Supp. 1057, 1066 (S.D.N.Y.1988) (applying the recklessness standard where an attorney can reasonably foresee that third parties will rely on its information); In re Union Carbide Corp. Consumer Prods. Business Sec. Litig., 676 F.Supp. 458, 470-71 (S.D.N.Y.1987) (same for investment bankers); In re Investors Funding Corp. of New York Sec. Litig., 523 F.Supp. 550, 558 (S.D.N.Y.1980) (same for accountants). . Other defendants who join in the submissions of First Jersey and Greentree by letter include Mikal; Investors Center; Hill Thompson; Hutton; Fitzgerald; Dillon Securities; Brooks, Weinger, Robbins & Leeds, Inc.; and Teichberg, Loeb, Waxman & Rabinowitz. . See Bresson v. Thomson McKinnon Sec., 118 F.R.D. 339, 343-44 (S.D.N.Y.1988) (finding that common issues of law do not predominate in a claim for common law negligence); Sanders v. Robinson Humphrey/American Express, Inc., 634 F.Supp. 1048, 1067-69 (finding that common issues of law do not predominate in" }, { "docid": "22748497", "title": "", "text": "incentive for investors to “pay attention” to issuers’ disclosures comes from their motivation to make a profit, not their attempt to preserve a cause of action under Rule 10b-5. Facilitating an investor’s reliance on the market, consistently with Congress’ expectations, hardly calls for “dismantling the federal scheme which mandates disclosure.” See post, at 259. See In re LTV Securities Litigation, 88 F. R. D. 134, 144 (ND Tex. 1980) (citing studies); Fischel, Use of Modern Finance Theory in Securities Fraud Cases Involving Actively Traded Securities, 38 Bus. Law. 1, 4, n. 9 (1982) (citing literature on efficient-capital-market theory); Dennis, Materiality and the Efficient Capital Market Model: A Recipe for the Total Mix, 25 Wm. & Mary L. Rev. 373, 374-381, and n. 1 (1984). We need not determine by adjudication what economists and social scientists have debated through the use of sophisticated statistical analysis and the application of economic theory. For purposes of accepting the presumption of reliance in this case, we need only believe that market professionals generally consider most publicly announced material statements about companies, thereby affecting stock market prices. See, e. g., Peil v. Speiser, 806 F. 2d 1154, 1161 (CA3 1986); Harris v. Union Electric Co., 787 F. 2d 355, 367, and n. 9 (CA8), cert. denied, 479 U. S. 823 (1986); Lipton v. Documation, Inc., 734 F. 2d 740 (CA11 1984), cert. denied, 469 U. S. 1132 (1985); T. J. Raney & Sons, Inc. v. Fort Cobb, Oklahoma Irrigation Fuel Authority, 717 F. 2d 1330, 1332-1333 (CA10 1983), cert. denied sub nom. Linde, Thomson, Fairchild, Langworthy, Kohn & Van Dyke v. T. J. Raney & Sons, Inc., 465 U. S. 1026 (1984); Panzirer v. Wolf, 663 F. 2d 365, 367-368 (CA2 1981), vacated and remanded sub nom. Price Waterhouse v. Panzirer, 459 U. S. 1027 (1982); Ross v. A. H. Robins Co., 607 F. 2d 545, 553 (CA2 1979), cert. denied, 446 U. S. 946 (1980); Blackie v. Barrack, 524 F. 2d 891, 905-908 (CA9 1975), cert. denied, 429 U. S. 816 (1976). See, e. g., Black, Fraud on the Market: A Criticism of Dispensing" }, { "docid": "396883", "title": "", "text": "would induce a reasonable, relying investor to misjudge the value of the stock, see Schlanger v. Four-Phase Systems, Inc., 555 F.Supp. 535, 538 (S.D.N.Y.1982), and (5) that the plaintiff traded in the stock between the time the • misrepresentations were made and the time the truth was revealed. Blackie, 524 F.2d at 906. We believe the record supports the allegations that relate to elements (1) and (2). The Basic stock was traded on an efficient market and the plaintiffs have sufficiently pled a sale of the stock during the relevant period (elements (3) & (5)). The only real question then is element (4) — whether the plaintiffs can prove that a reasonable investor who was aware of the defendant’s statements would have undervalued the stock. The plaintiffs claim that the misrepresentations were intended to and did deflate the price of Basic’s stock. This allegation satisfies element (4) for pleading purposes and should not be dismissed as a matter of law. See Schlanger, 555 F.Supp. at 538-39. If the plaintiffs are able to prove this and the other elements, it will be quite logical to presume that some investors relied on the misrepresentations resulting in a deflation of stock price and that members of the class relied upon the supposed integrity of the market price when selling their shares. The mere fact that the proof could be difficult does not preclude the opportunity to make the presentation at trial. The fraud on the market theory has been consistently applied in cases in which the defendants made public, material misrepresentations and the plaintiffs transacted shares in an impersonal, efficient market. See Lipton v. Documation, Inc., 734 F.2d 740 (11th Cir.1984), cert. denied, — U.S. —, 105 S.Ct. 814, 83 L.Ed.2d 807 (1985); T. J. Raney & Sons, Inc. v. Fort Cobb, Oklahoma Irrigation Fuel Auth., 717 F.2d 1330 (10th Cir.1983), cert. denied, 465 U.S. 1026, 104 S.Ct. 1285, 79 L.Ed.2d 687 (1984); Shores v. Sklar, 647 F.2d 462 (5th Cir.1981), cert. denied, 459 U.S. 1102, 103 S.Ct. 722, 74 L.Ed.2d 949 (1983); Ross v. A.H. Robins Co., 607 F.2d 545 (2d Cir.1979)," }, { "docid": "9445407", "title": "", "text": "for the fraud the securities would not have been marketable.”), cert. denied, 469 U.S. 1132, 105 S.Ct. 814, 83 L.Ed.2d 807 (1985); Plastis v. E.F. Hutton & Co., 642 F.Supp. 1277 (W.D. Mich, 1986); Rose, 563 F.Supp. at 1201-03. Although Vervaecke v. Chiles, Heider & Co., 578 F.2d 713 (8th Cir.1978) does not discuss the fraud on the market theory as such, it has been read as a rejection of that theory in new issue cases. See, e.g. T.J. Raney & Sons v. Fort Cobb Irrigation Fuel Authority, 717 F.2d 1330, 1333 (10th Cir.1983), cert. denied, 465 U.S. 1026, 104 S.Ct. 1285, 79 L.Ed.2d 687 (1984). It is, of course, only the first of these theories or categories that is at issue in the instant case. . Defendant appears to equate the fraud on the market theory with the rule of Affiliated Ute. Both provide alternatives to the traditional means of proving causation. See, e.g., Blackie v. Barrack, 524 F.2d 891, 905-908 (9th Cir.1975), cert. denied, 429 U.S. 816, 97 S.Ct. 57, 50 L.Ed.2d 75 (1976). These are two distinct theories of causation, however. See, e.g., Levinson v. Basic Inc., 786 F.2d 741 (6th Cir.1986), cert. granted, — U.S. -, 107 S.Ct. 1284, 94 L.Ed.2d 142 (1987); In re McDonnell Douglas Corp. Sec. Litig., 587 F.Supp. 625, 628 (E.D.Mo.1983). CraigHallum seeks to stretch Vervaecke v. Chiles, Heider & Co., 578 F.2d 713 (8th Cir.1978), too far. Vervaecke refused to extend Affiliated Ute to misrepresentation cases: we do not think that dispensing with an initial showing of reliance and substituting a presumption of causation in fact in all kinds of 10b-5 fraud is necessary, and that it is not appropriate to apply the Affiliated Ute test to this case involving primarily misrepresentation____ Id. at 717. Vervaecke does not refer to the \"fraud on the market theory,” nor does it cite any of the earlier cases discussing the theory. The parties may not have argued the theory to the court at all. See Biben v. Card, Fed.Sec.L. Rep. (CCH) ¶ 92,010 at 91,000 (W.D.Mo. Apr. 10, 1985) (Vervaecke did not reject the" }, { "docid": "18424319", "title": "", "text": "S.Ct. 814, 83 L.Ed.2d 807 (1985); T.J. Raney & Sons, Inc. v. Fort Cobb, Oklahoma, Irrigation Fuel Authority, 717 F.2d 1330 (10th Cir.1983), cert. denied, 465 U.S. 1026, 104 S.Ct. 1285, 79 L.Ed.2d 687, (1984); Panzirer v. Wolf, 663 F.2d 365 (2d Cir. 1981), vacated as moot sub nom. Price Waterhouse v. Panzirer, 459 U.S. 1027, 103 S.Ct. 434, 74 L.Ed.2d 594 (1982); Shores v. Sklar, 647 F.2d 462 (5th Cir.1981) (en banc), cert. denied, 459 U.S. 1102, 103 S.Ct. 722, 74 L.Ed.2d 949 (1983); Rifkin v. Crow, 574 F.2d 256 (5th Cir.1978); Blackie v. Barrack, 524 F.2d 891 (9th Cir.1975), cert. denied, 429 U.S. 816, 97 S.Ct. 57, 50 L.Ed.2d 75 (1976). In fact, we have not discovered, nor have we been directed to, any appellate court decision which has rejected the theory. Defendant acknowledges this, but contends that the theory is, nonetheless, inconsistent with Sixth Circuit interpretation of 10b-5 claims and the underlying purpose of 10b-5. The fraud on the market theory enables a plaintiff to base a securities fraud claim on allegations that the integrity of the market was distorted due to defendant’s misrepresentations or omissions. Blackie, 524 F.2d at 905-08. An extension of the Supreme Court’s decision in Affiliated Ute Citizens of Utah v. United States, 406 U.S. 128, 153-54, 92 S.Ct. 1456, 1472, 31 L.Ed.2d 741 (1972), this theory was developed to address the difficult problem of establishing reliance on an individual basis in class actions under Rule 10b-5. Blackie, 524 F.2d at 905-08. Under this theory the plaintiff is not required to prove reliance directly because it is recognized that a purchaser of stock on the open market may be unaware of a specific misrepresentation or may not rely directly on it, but may nonetheless rely generally on the validity of the market price. For example, a buyer may purchase stock because of its favorable price trend or its price earning ratio, but he is also implicitly relying on the accuracy of the underlying representations which helped to determine that stock price. Defendant attempts to persuade us that such a theory is inconsistent with" }, { "docid": "19789509", "title": "", "text": "only that a plaintiff prove purchase of a security between the time the misrepresentations were made and the time the truth was revealed, that a material misrepresentation was made concerning the security by the defendant which resulted in an artificial change in price, and that the misrepresentations would induce a reasonable, relying investor to misjudge the value of the stock. Levinson v. Basic, Inc., 786 F.2d 741, 750 (6th Cir.1986); T.J. Raney & Sons, 717 F.2d at 1332; see also Note, The Fraud-on-the-Market-Theory, 95 Harv.L.Rev. 1143 (1982). Defendants argue that this Court should not adopt the fraud on the market theory with respect to securities traded on the open market. Their argument is twofold. First, they argue that the Tenth Circuit’s adoption of this theory in T.J. Raney & Sons should be limited to its facts and applied only to newly issued securities and not extended to securities traded on the open market. Second, they contend that precedent in this circuit requires that in a misrepresentation case, affirmative proof of individual reliance is required, citing Holdsworth v. Strong, 545 F.2d 687 (10th Cir.1976), cert. denied 430 U.S. 955, 97 S.Ct. 1600, 51 L.Ed.2d 805 (1977). The Court disagrees. First, the fraud on the market theory has been consistently applied in cases in which the Defendants made public, material misrepresentations with respect to both newly issued securities and securities traded on the open market. Levinson v. Basic, Inc., 786 F.2d 741, 750-51 (6th Cir.1986); Peil v. Speiser, 806 F.2d 1154 [Current] Fed.Sec.L.Rep. (CCH) ¶ 93,006 at 94,942-94,943 (3d Cir.1986); Lipton v. Documation, Inc., 734 F.2d 740 (11th Cir.1984), cert. denied, 469 U.S. 1132, 105 S.Ct. 814, 83 L.Ed.2d 807 (1985); T.J. Raney & Sons, Inc. v. Fort Cobb, Okla. Irr. Fuel Auth., 717 F.2d 1330 (10th Cir.1983), cert. denied, 465 U.S. 1026, 104 S.Ct. 1285, 79 L.Ed.2d 687 (1984); Panzirer v. Wolf, 663 F.2d 365, 368 (2d Cir.1981), cert. denied, 458 U.S. 1107, 102 S.Ct. 3486, 73 L.Ed.2d 1368 (1982), vacated as moot sub nom, Price Waterhouse v. Panzirer, 459 U.S. 1027, 103 S.Ct. 434, 74 L.Ed.2d 594 (1982); Shores v." }, { "docid": "22600512", "title": "", "text": "717 F.2d 1330 (10th Cir.1983), cert. denied, 465 U.S. 1026, 104 S.Ct. 1285, 79 L.Ed.2d 687 (1984); Panzirer v. Wolf, 663 F.2d 365 (2d Cir.1981), cert. denied, 458 U.S. 1107, 102 S.Ct. 3486, 73 L.Ed.2d 1368 (1982), vacated as moot sub nom. Price Waterhouse v. Panzirer, 459 U.S. 1027, 103 S.Ct. 434, 74 L.Ed.2d 594 (1982); Shores v. Sklar, 647 F.2d 462 (5th Cir.1981) (in banc), cert. denied, 459 U.S. 1102, 103 S.Ct. 722, 74 L.Ed.2d 949 (1983) (applying theory to purchase of newly-issued stock); Blackie v. Barrack, 524 F.2d 891 (9th Cir.1975); Rosenberg v. Digilog, 648 F.Supp. 40, Fed.Sec.L.Rep. (CCH) ¶ 92,274 at 91,895 (E.D.Pa.1985); In Re Ramada Inns Securities Litigation, 550 F.Supp. 1127, 1131 (D.Del.1982); In Re LTV Securities Litigation, 88 F.R.D. 134 (N.D.Tex.1980), and has been well-received by commentators, see, e.g., Rapp, Rule 10b-5 And “Fraud on the Market’’—Heavy Seas Meet Tranquil Shores, 39 Wash. & Lee. L.Rev. 861 (1982); Note, Fraud on the Market: An Emerging Theory of Recovery Under SEC Rule 10b5, 50 Geo.W.L.Rev. 627 (1982); Note, The Fraud-on-the-Market-Theory, 95 Harv.L.Rev. 1143 (1982). . Judge Seitz does not join in this part of the opinion. See supra n. 2. . Defendants do suggest at one point that the theory is useful only for the purposes of class certification but not for use at trial. Appellee’s brief at 27 n. 4. We find this contention merit-less. . One commentator recently described the confusion as follows: 10b-5 seems to have another mysterious capacity, perhaps shared by the human brain: one part can take over the function of the other. A. Bromberg & L. Lowenfels, Securities Fraud and Commodities Fraud 49 (1983). . Interestingly, there is a suggestion in Sklar that the court believed the \"fraud on the market” theory to be applicable only in the case of newly-issued stocks that would not have been sold at all — and hence would not have been issued — without the issuer’s fraudulent conduct. 647 F.2d at 471. However, the Eleventh Circuit, precedentially bound by Sklar, has rejected such a reading as untenable: [Sklar ] dictates that this circuit recognize" }, { "docid": "7158303", "title": "", "text": "of individual investors reading and relying upon information required to be disclosed in registration statements and the like is suspect. Most SEC disclosure documents not only go unread by their intended recipients but in fact 'can be used effectively only by market professionals.’ ’’) (quoting H. Kripke, The SEC and Corporate Disclosure at 14 (1979)). . One way of perceiving the market’s role is as \"a transmission belt linking the misrepresentation and the individual purchaser or seller.” In re LTV Securities Litigation, 88 F.R.D. 134, 143 (N.D.Tex.1980). The theory has special and obvious appeal in class actions because the need to prove a personalized reliance by each class member is avoided. . Schlick v. Penn-Dixie Cement Corp., 507 F.2d 374 (2d Cir.1974), cert. denied, 421 U.S. 976, 95 S.Ct. 1976, 44 L.Ed.2d 467 (1975); Panzirer v. Wolf, 663 F.2d 365 (2d Cir.1981), vacated as moot sub nom. Price Waterhouse v. Panzirer, 459 U.S. 1027, 103 S.Ct. 434, 74 L.Ed.2d 594 (1982); Peil v. Speiser, 806 F.2d 1154 (3d Cir.1986); Shores v. Sklar, 647 F.2d 462 (5th Cir.1981) (en banc), cert. denied, 459 U.S. 1102, 103 S.Ct. 722, 74 L.Ed.2d 949 (1983); Levinson v. Basic, Inc., 786 F.2d 741 (6th Cir.1986); Teamsters Local 282 Pension Trust Fund v. Angelos, 762 F.2d 522 (7th Cir.1985); Harris v. Union Electric Co., 787 F.2d 355 (8th Cir.), cert. denied, _ U.S. _, 107 S.Ct. 94, 93 L.Ed.2d 45 (1986); Blackie v. Barrack, 524 F.2d 891 (9th Cir.1975), cert. denied, 429 U.S. 816, 97 S.Ct. 57, 50 L.Ed.2d 75 (1976); Arthur Young & Co. v. United States District Court, 549 F.2d 686 (9th Cir.) cert. denied, 434 U.S. 829, 98 S.Ct. 109, 54 L.Ed.2d 88 (1977); Zweig v. Hearst Corp., 594 F.2d 1261 (9th Cir.1979); T.J. Raney & Sons, Inc. v. Fort Cobb Oklahoma Irrigation Fuel Authority, 717 F.2d 1330 (10th Cir.1983), cert. denied, 465 U.S. 1026, 104 S.Ct. 1285, 79 L.Ed.2d 687 (1984); Lipton v. Documation, Inc., 734 F.2d 740 (11th Cir.1984), cert. denied, 469 U.S. 1132, 105 S.Ct. 814, 83 L.Ed.2d 807 (1985); Wachovia Bank & Trust v. National Student Marketing Corporation, 650" }, { "docid": "7158304", "title": "", "text": "(5th Cir.1981) (en banc), cert. denied, 459 U.S. 1102, 103 S.Ct. 722, 74 L.Ed.2d 949 (1983); Levinson v. Basic, Inc., 786 F.2d 741 (6th Cir.1986); Teamsters Local 282 Pension Trust Fund v. Angelos, 762 F.2d 522 (7th Cir.1985); Harris v. Union Electric Co., 787 F.2d 355 (8th Cir.), cert. denied, _ U.S. _, 107 S.Ct. 94, 93 L.Ed.2d 45 (1986); Blackie v. Barrack, 524 F.2d 891 (9th Cir.1975), cert. denied, 429 U.S. 816, 97 S.Ct. 57, 50 L.Ed.2d 75 (1976); Arthur Young & Co. v. United States District Court, 549 F.2d 686 (9th Cir.) cert. denied, 434 U.S. 829, 98 S.Ct. 109, 54 L.Ed.2d 88 (1977); Zweig v. Hearst Corp., 594 F.2d 1261 (9th Cir.1979); T.J. Raney & Sons, Inc. v. Fort Cobb Oklahoma Irrigation Fuel Authority, 717 F.2d 1330 (10th Cir.1983), cert. denied, 465 U.S. 1026, 104 S.Ct. 1285, 79 L.Ed.2d 687 (1984); Lipton v. Documation, Inc., 734 F.2d 740 (11th Cir.1984), cert. denied, 469 U.S. 1132, 105 S.Ct. 814, 83 L.Ed.2d 807 (1985); Wachovia Bank & Trust v. National Student Marketing Corporation, 650 F.2d 342, 358 (D.C.Cir.1980), cert. denied, 452 U.S. 954, 101 S.Ct. 3098, 69 L.Ed.2d 965 (1981). . See Black, Fraud on the Market: A Criticism of Dispensing with Reliance Requirements in Certain Open Market Transactions, 62 N.C.L. Rev. 435 (1984); Rapp, Rule 10b-5 and “Fraud-on-the-Market\"—Heavy Seas Meet Tranquil Shores, 39 Wash. & Lee L.Rev. 861 (1982); Note, Fraud on the Market: An Emerging Theory of Recovery Under SEC Rule 10b-5, 50 Geo.Wash. L.Rev. 627 (1982); Note, The Fraud-on-the-Market Theory, 95 Harv.L.Rev. 1143 (1982). . SEC Securities Act Release No. 6383, 47 Fed. Reg. 11,380 (1982); SEC Securities Act Release No. 6235, Proposed Comprehensive Revision to the System for Registration of Securities Offerings, [1980 Transfer Binder] Fed.Sec.L.Rep. (CCH) [¶] 82,649, at 83,484; Executive Summary of Securities Act Releases 6331-38, Proposed Rulemaking to Implement the Integrated Disclosure System, [1981-1982 Transfer Binder] Fed.Sec.L.Rep. (CCH) ¶ 83,016, at 84,479. See also Pickholz and Horahan, The SEC’s Version of the Efficient Market Theory and Its Impact on Securities Law Liabilities, 39 Wash. and Lee L.Rev. 943 (1982). . See, e.g.," }, { "docid": "18424318", "title": "", "text": "$125,000. Amended Complaint at ¶ 3. This is sufficient to withstand defendant’s motion to dismiss. E. Fraud on the Market As an alternative theory for recovery, plaintiff alleges that defendant’s deceptive practices and false statements affected the integrity of the market price of B/U securities. Merrill Lynch urges this Court not to recognize plaintiff’s “fraud on the market” theory of liability. If we do deem fraud on the market to be a viable theory, defendant further urges us to find that plaintiff has failed to state a claim under it. We cannot agree with defendant on either point. The fraud on the market theory is now widely accepted as a viable theory of recovery under the federal securities laws. Although the Sixth Circuit has not yet adopted this theory, it has been recognized in the Second, Fifth, Ninth, Tenth, and Eleventh Circuits, as well as in numerous district courts. See, e.g., Lipton v. Documation, Inc., 734 F.2d 740 (11th Cir.1984), cert. denied, sub nom., Peat, Marwick, Mitchell & Co. v. Lipton, — U.S. —, 105 S.Ct. 814, 83 L.Ed.2d 807 (1985); T.J. Raney & Sons, Inc. v. Fort Cobb, Oklahoma, Irrigation Fuel Authority, 717 F.2d 1330 (10th Cir.1983), cert. denied, 465 U.S. 1026, 104 S.Ct. 1285, 79 L.Ed.2d 687, (1984); Panzirer v. Wolf, 663 F.2d 365 (2d Cir. 1981), vacated as moot sub nom. Price Waterhouse v. Panzirer, 459 U.S. 1027, 103 S.Ct. 434, 74 L.Ed.2d 594 (1982); Shores v. Sklar, 647 F.2d 462 (5th Cir.1981) (en banc), cert. denied, 459 U.S. 1102, 103 S.Ct. 722, 74 L.Ed.2d 949 (1983); Rifkin v. Crow, 574 F.2d 256 (5th Cir.1978); Blackie v. Barrack, 524 F.2d 891 (9th Cir.1975), cert. denied, 429 U.S. 816, 97 S.Ct. 57, 50 L.Ed.2d 75 (1976). In fact, we have not discovered, nor have we been directed to, any appellate court decision which has rejected the theory. Defendant acknowledges this, but contends that the theory is, nonetheless, inconsistent with Sixth Circuit interpretation of 10b-5 claims and the underlying purpose of 10b-5. The fraud on the market theory enables a plaintiff to base a securities fraud claim on allegations" }, { "docid": "22748498", "title": "", "text": "about companies, thereby affecting stock market prices. See, e. g., Peil v. Speiser, 806 F. 2d 1154, 1161 (CA3 1986); Harris v. Union Electric Co., 787 F. 2d 355, 367, and n. 9 (CA8), cert. denied, 479 U. S. 823 (1986); Lipton v. Documation, Inc., 734 F. 2d 740 (CA11 1984), cert. denied, 469 U. S. 1132 (1985); T. J. Raney & Sons, Inc. v. Fort Cobb, Oklahoma Irrigation Fuel Authority, 717 F. 2d 1330, 1332-1333 (CA10 1983), cert. denied sub nom. Linde, Thomson, Fairchild, Langworthy, Kohn & Van Dyke v. T. J. Raney & Sons, Inc., 465 U. S. 1026 (1984); Panzirer v. Wolf, 663 F. 2d 365, 367-368 (CA2 1981), vacated and remanded sub nom. Price Waterhouse v. Panzirer, 459 U. S. 1027 (1982); Ross v. A. H. Robins Co., 607 F. 2d 545, 553 (CA2 1979), cert. denied, 446 U. S. 946 (1980); Blackie v. Barrack, 524 F. 2d 891, 905-908 (CA9 1975), cert. denied, 429 U. S. 816 (1976). See, e. g., Black, Fraud on the Market: A Criticism of Dispensing with Reliance Requirements in Certain Open Market Transactions, 62 N. C. L. Rev. 435 (1984); Note, The Fraud-on-the-Market Theory, 95 Harv. L. Rev. 1143 (1982); Note, Fraud on the Market: An Emerging Theory of Recovery Under SEC Rule 10b-5, 50 Geo. Wash. L. Rev. 627 (1982). The Court of Appeals held that in order to invoke the presumption, a plaintiff must allege and prove: (1) that the defendant made public misrepresentations; (2) that the misrepresentations were material; (3) that the shares were traded on an efficient market; (4) that the misrepresentations would induce a reasonable, relying investor to misjudge the value of the shares; and (5) that the plaintiff traded the shares between the time the misrepresentations were made and the time the truth was revealed. See 786 F. 2d, at 750. Given today’s decision regarding the definition of materiality as to preliminary merger discussions, elements (2) and (4) may collapse into one. By accepting this rebuttable presumption, we do not intend conclusively to adopt any particular theory of how quickly and completely publicly available" } ]

[ { "docid": "21568117", "title": "", "text": "of a court of record ... but not to the extent that ... such debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance, or support.” 11 U.S.C. § 523(a)(5). Appellant argues that the settlement agreement at issue is actually a “property settlement” rather than alimony, maintenance, or support, and thus his obligations in the agreement are dischargeable in bankruptcy. While it is true that the divorce decree refers to the settlement agreement as a “property settlement,” that label does not resolve the issue. The determination of whether an obligation arising out of a divorce settlement is in the nature of alimony, maintenance, or support is a matter of federal bankruptcy law. In re Goin, 808 F.2d 1391, 1392 (10th Cir.1987). In determining dischargeability under § 523(a), the initial inquiry is the intent of the parties at the time they entered into their agreement. In re Yeates, 807 F.2d 874, 878 (10th Cir.1986). Here, several facts demonstrate that the obligations imposed on appellant in the settlement agreement were intended to be in the nature of alimony, maintenance, or support: the settlement agreement segregates the property settlement provisions from appellant’s obligations, see Yeates, 807 F.2d at 879; the agreement states that the obligations imposed upon appellant are in consideration of appellee “relinquishing any rights that she might have against [appellant] for support,” see id.; the parties had a minor child at the time of the divorce and appellant had substantially more income that appellee, see Goin, 808 F.2d at 1392-93; the agreement provides that appellant is to make payments directly to appellee over a substantial period of time, see id. at 1393; and the obligation to make monthly payments to appellee terminates on remarriage or death, see id. Additionally, as the district court found, “[t]he provisions in the agreement in dispute had the actual effect of providing support to the appellee — enabling her to maintain a home ... and have a monthly income.” (April 27, 1987 Order.) In light of those facts, we agree with the bankruptcy court and" } ]

[ { "docid": "16761552", "title": "", "text": "intention of the court to provide support. 4. Whether debtor’s obligation terminates upon death or remarriage of the spouse or a certain age of the children or any other contingency such as a change in circumstances. 5. The age, health, work skills, and educational levels of the parties. 6. Whether the payments are made periodically over an extended period or in a lump sum. 7. The existence of a legal or moral “obligation” to pay alimony or support. 8. The express terms of the debt characterization under state law. 9. Whether the obligation is enforceable by contempt. 10. The duration of the marriage. 11. The financial resources of each spouse, including income from employment or elsewhere. 12. Whether the payment was fashioned in order to balance disparate incomes of the parties. 13. Whether the creditor spouse relinquished rights of support in payment of the obligation in question. 14. Whether- there were minor children in the care of the creditor spouse. 15. The standard of living of the parties during their marriage. 16. The circumstances contributing to the estrangement of the parties. 17. Whether the debt is for a past or future obligation, any property division, or any allocation of debt between the parties. 18. Tax treatment of the payment by the debtor spouse. Id. at 638. See also, In re Grijalva, 72 B.R. 334, 336 (S.D.W.Va.1987) (12 factors); In re Anderson, 62 B.R. 448, 454-455 (Bankr.D.Minn.1986) (10 factors); In re Barnett, 62 B.R. 661, 663 (Bankr.E.D.Mo.1981) (18 factors); In re Seidel, 48 B.R. 371, 373 (Bankr.C.D.Ill.1984) (10 factors); In re Pody, 42 B.R. 570 (Bankr.N.D.Ala.1984) (6 factors); In re Altavilla, 40 B.R. 938 (Bankr.D.Mass.1984) (7 factors). The Court in In re Goin, 808 F.2d 1391, (10th Cir.1987), stated that several factors are pertinent to the Bankruptcy Court’s determination of whether a debt is support. These are: 1. If the agreement fails to provide explicitly for spousal support, the Court may presume that the property settlement is intended for support if it appears under the circumstances that the spouse needs support; 2. When there are minor children and an imbalance of" }, { "docid": "4789218", "title": "", "text": "whether the actual effect of the obligation resulted in a property division or provided support. In re Calhoun, 718 F.2d 1103, 1109 (6th Cir.1983); In re Jenkins, supra, at 359-60. If necessary, the court may look beyond the document to the circumstances of the parties at the time of divorce, although the parties in this case apparently believed that to be unnecessary in light of the divorce court’s detailed findings of fact. See Roberts v. Poole, 80 B.R. 81 (N.D.Tex.1987). The inquiry of the bankruptcy court addresses the nature of the obligation at the time of the divorce, and the current needs of the recipient spouse are irrelevant. In re Fryman, 67 B.R. 112 (Bankr.E.D.Wis.1986). Cases and commentary abound with factors a court may consider to classify a particular obligation as property division or support. See, e.g., In re Stone, 79 B.R. 633 (Bankr.D.Md.1987), citing In re Coffman, 52 B.R. 667 (Bankr.D.Md.1985) (18 factors); In re Alloway, 37 B.R. 420 (Bankr.E.D.Pa.1984) (11 factors); Bkr.—L.Ed. Summary § 7:120:5 (Supp. 1A, Jan. 1989) (34 factors). The factors gleaned from these cases that might apply to the $135,000 periodic payments in this case are, in no particular order, as follows: 1. Whether a maintenance award is also made for a spouse. 2. Whether there was a need for support at the time of the divorce and whether support would be inadequate absent the obligation in question. 3. Whether the court intended to provide for support by the obligation in question. 4. Whether the debtor’s obligation terminated at the death or remarriage of the recipient spouse. 5. Whether the amount or duration of payments can be altered upon a change of circumstances. 6. The age, health, educational level, work skills, earning capacity and other financial resources of the parties independent of the obligation in question. 7. Whether payments are extended over time or are in a lump sum. 8. Whether the debt is characterized as property division or support under state law. 9. Whether the obligation balances disparate incomes of the parties. 10. Tax treatment of payments. 11. Whether one party relinquished a right" }, { "docid": "1095978", "title": "", "text": "by the parties to subordinate liens is not alimony, maintenance or support and is dischargeable. 2. FACTS On December 14, 1992, the Circuit Court for the Twelfth Judicial Circuit, Will County, Illinois (“Divorce Court”) issued a judgment for dissolution of marriage (“Dissolution Judgment”) in In re: The Marriage of Claire M. Wright vs. Frank J. Wright, M.D., dissolving the marriage of the Debtor and his former wife, Claire Wright. The Divorce Court awarded Mrs. Wright $5,500 per month in unallocated support, reviewable at the conclusion of five years. The Debtor’s obligation to pay this support is terminated upon the happening of any of the following: (1) death of Mrs. Wright; (2) death of the Debtor; (3) remarriage of Mrs. Wright; or (4) Mrs. Wright’s cohabitation with another person on a continuing conjugal basis. Additionally, the Divorce Court reserved the right to modify the terms of the support based on a finding,of substantial material change in the circumstances of either party. The Court also awarded Mrs. Wright $135,000 to be paid within five years of the Dissolution Judgment. The $135,000 is comprised of three parts. First, the Divorce Court found that Mrs. Wright “has no independent means in which to accumulate assets, and that [the Debtor] has liquidated marital assets in violation of Court Order, and has been guilty of the willful and intentional dissipation of marital assets to the direct detriment of [Mrs. Wright] and the parties’ minor children.” The dissipated amount was determined to be $153,000. Based on this finding, the Divorce Court awarded Mrs. Wright $76,500, half of the amount of marital assets dissipated by the Debtor. Second, the Divorce Court found that the value of the property awarded the Debtor exceeded the value of the property awarded Mrs. Wright by $36,000. The Divorce Court split the difference and awarded Mrs. Wright $18,000. Third, the Divorce Court found that there “is a great disparity in earning capacity between [Mrs. Wright] and [the Debtor]” and awarded Mrs. Wright $40,800 which is 15% of the value of all the Debtor’s assets. No event, including death or remarriage, terminates the $135,000" }, { "docid": "10327295", "title": "", "text": "on the death of either spouse or on the remarriage of the recipient spouse, is it labelled support by the divorce court? These factors are given some weight as evidence of the parties’ intentions, but will not defeat an award which is clearly intended to be for a spouse’s support. As Judge Mabey explained in the Warner case, “If a debt is imposed to discharge the state law duty of support, no matter what the form of the obligation, it is not dischargeable. The award need not have the traditional characteristics of support.” 5 B.R. at 440, 6 B.C.D. at 791. Second, courts consider the circumstances of the parties to determine whether a need for support exists. It should be emphasized that even should a need for support exist, an award may not have been granted to alleviate this need and would therefore be dischargeable. In determining whether a need exists courts have considered the rela tive health, education and employment history of the spouses. In the present case, the award of $23,100 cannot be considered alimony, maintenance or support. The form of the award is more consistent with a property division than support. The award was to be paid as a lump sum, it was not made terminable on death or remarriage and it was labelled a property settlement by the divorce court. More importantly, the award does not appear to have been made to fulfill an obligation of support. Under Wisconsin law there is a presumption that marital assets will be divided equally between the spouses, absent factors such as the economic status of one which would make such a division unfair. Wis.Stat. § 767.255 (1977). In this case the judge chose, with the apparent consent of Geneva, to follow this presumption and divide the property equally. Given these circumstances, an unrebutted presumption arises that special circumstances of need were not considered by the court and that the award was intended to simply divide the property. Thus, this is very much like In Re Baker, MM13-80-00229 (Bkrtcy.W.D. Wis. August 28, 1980), in which the court noted: “Upon the" }, { "docid": "1135356", "title": "", "text": "maintenance, but it is impossible to determine an amount from the evidence presented at trial. The final question concerns whether the subject fees were awarded against Plaintiff in lieu of a direct maintenance or support payment to his ex-wife. Title 11 U.S.C. § 523(a)(5) provides that an indebtedness to a former spouse for alimony, maintenance, or support of the spouse or the couple’s children which is memorialized in a divorce decree is not dischargeable in bankruptcy, 11 U.S.C. § 523(a)(5). However, the division of marital property pursuant to a divorce decree is treated as a debt dischargeable in bankruptcy. In re Coil, 680 F.2d 1170, 1171 (7th Cir.1982); In re Maitlen, 658 F.2d 466, 478 (7th Cir.1981). The factors to test whether a property settlement agreement is in the nature of alimony, maintenance, or support include the following: 1. Whether the settlement agreement includes payment for the ex-spouse; 2. Whether there is any indication that provisions within the agreement were intended to balance the relative income of the parties; 3. The position of the assumption to pay debts within the agreement; 4. The character or method of payment of the assumption; 5. The nature of the obligation; 6. Whether children resulted which had to be provided for; 7. The relative future earning power of the spouse; 8. The adequacy of support absent debt assumption; 9. The parties’ understanding of the provisions; 10. The label of the obligations; 11. The age of the parties; 12. The health of the parties; 13. Existence of “hold harmless” or assumption terminology; 14. Whether the assumption terminated upon death or remarriage; 15. Whether the parties had counsel; 16. Whether there was a knowing, voluntary, and intelligent waiver of rights; 17. Length of the marriage; 18. Employment of the parties; 19. The demeanor and credibility of the parties; 20. Other special or unique circumstances of the parties. See, In re Seidel, 48 B.R. 371 (Bankr. C.D.Ill.1984); In re Woods, 561 F.2d 27 (7th Cir.1977), In re Maitlen, 658 F.2d 466 (7th Cir. 1981), In re Coil, 680 F.2d 1170 (7 th Cir.1982), In re Marriage of" }, { "docid": "4789219", "title": "", "text": "gleaned from these cases that might apply to the $135,000 periodic payments in this case are, in no particular order, as follows: 1. Whether a maintenance award is also made for a spouse. 2. Whether there was a need for support at the time of the divorce and whether support would be inadequate absent the obligation in question. 3. Whether the court intended to provide for support by the obligation in question. 4. Whether the debtor’s obligation terminated at the death or remarriage of the recipient spouse. 5. Whether the amount or duration of payments can be altered upon a change of circumstances. 6. The age, health, educational level, work skills, earning capacity and other financial resources of the parties independent of the obligation in question. 7. Whether payments are extended over time or are in a lump sum. 8. Whether the debt is characterized as property division or support under state law. 9. Whether the obligation balances disparate incomes of the parties. 10. Tax treatment of payments. 11. Whether one party relinquished a right to support under state law in exchange for the obligation in question. The $135,000 award of the divorce court is obviously a property division under Wisconsin law (factor # 8). The court arrived at the amount to be paid by valuing the property and awarding each a percentage. The wife’s percentage included this obligation. She was to receive interest, and the resulting amount was payable over 126 months, not because the payments were not a division of property, but to take advantage of the deductibility of periodic payments made over ten years under § 71 of the Internal Revenue Code in effect at the time (factors #7, 10). The wife was directed to declare these payments as taxable income, and the husband was authorized to deduct them on his income tax returns. The judgment provided these payments were not contingent upon the wife’s death or remarriage but would accrue to her estate if she died (factor #4). The only circumstance under which a change in the amount of each payment might occur was an adjustment" }, { "docid": "18734981", "title": "", "text": "and community property in a just and equitable manner, and [Fjactors which the Texas courts may take into account in making the division and award “include the disparity of the earning power of the parties as well as their business opportunities....” the physical conditions of the parties, probable future need for support, and educational background; ... [t]he fault in breaking up the marriage and the benefits the innocent spouse would have received from a continuation of the marriage. Other factors tending to disclose the intent of the parties is whether the obligation ends with the remarriage of the recipient spouse or the death of either spouse; whether the obligation is to be paid in installments over a long period of time, and the location of the obligation in the decree in relation to other dispositive provisions. The presence of one or more of these factors does not necessarily mean the obligation is one of support nor does the absence of one or more indicate the award is part of a property settlement. Determination of whether support or a property settlement is involved must be made on a case by case basis. Considering all the facts in the instant case, the Court finds the obligation is in the nature of support and as such is nondischargeable. In making the determination, the Court is not unmindful of the disparate division of marital property in the divorce decree. Such disproportionate division, however, was agreed to by the parties, was not so flagrant as to be manifestly unfair or unjust, and was for consideration, at least in part, of special interest to the debtor in resolving other pending litigation. Having decided as a threshold matter that the obligation was intended as support, determination must be made as to whether the obligation has the effect of providing daily necessities in the nature of support and/or whether the obligation is so excessive as to be manifestly unreasonable under traditional concepts of support. In re Calhoun, supra, at 1110. Here the obligation is a sum certain ($100.00 per month) and does not increase proportionately with increased retirement" }, { "docid": "1799827", "title": "", "text": "in the nature of alimony, maintenance, or support. 11 U.S.C. § 523(a)(5). This court in previous decisions has held that the designation and labeling of the obligation in the agreement itself are not determinative of the nature of the award in a bankruptcy context. In re McConnell, 88 B.R. 218, 221 (Bankr.D.N.D.1988); In re Hillius Farms, 38 B.R. 334, 335 (Bankr.D.N.D.1984). Of primary consideration is the intent of the parties or the divorce court in creating the obligation. That is, what function was the obligation or award intended to serve at the time? In re McConnell, supra; In re Yeates, 807 F.2d 874 (10th Cir.1986). Boyle v. Donovan, 724 F.2d 681, 683 (8th Cir.1984); In re Calhoun, 715 F.2d 1103 (6th Cir.1983); In re Eikenberg, 107 B.R. 139, 141 (Bankr.N.D.Ohio 1989); In re Messnick, 104 B.R. 89, 92 (Bankr.E.D.Wis.1989). This determination is made by looking not at the language of the agreement but at its substance in light of surrounding circumstances. Various courts have endeavored to list those circumstances which are indicative of whether a particular obligation is a property division or nondischargeable support. This court has also commented upon those factors relevant to such a determination. From a review of its own decisions and those of other courts, the following are appropriate consideration: (1) The age, health, educational level, skills, earning capacity and other resources of the respective parties; (2) Whether there were minor children involved; (3) Whether the obligation balances disparate incomes of the parties; (4) Whether there was a need for support at the time necessary to provide for the daily needs of the recipient and any children; (5) Whether a support or maintenance obligation also exists; (6) Whether any other support award would be inadequate absent the obligation in question; (7) Whether one party relinquished a right to support under state law in exchange for the obligation; (8) Whether the obligation terminated upon death or remarriage of the recipient; (9) Whether the obligation extended over time or is in a lump sum; (10) How the obligation is characterized under state law; (11) Tax treatment of the" }, { "docid": "18571175", "title": "", "text": "917 F.2d 759, 762 (3d Cir.1990)); e.g., Sampson v. Sampson (In re Sampson), 997 F.2d 717, 722-23 (10th Cir.1993) (citations omitted); Morel v. Morel (In re Morel), 983 F.2d 104, 105 (8th Cir.1992); Davidson v. Davidson (In re Davidson), 947 F.2d 1294, 1296 (5th Cir.1991); Long v. West (In re Long), 794 F.2d 928, 931 (4th Cir.1986); Telgmann v. Maune (In re Maune), 133 B.R. 1010, 1014 (Bankr.E.D.Mo.1991) (the court must “determine what function the award was intended to serve and on that basis either discharge it as a property settlement or except it from discharge as a support obligation”). Bankruptcy courts have developed a number of factors to be considered in ascertaining the parties’ intent, and in determining whether a particular obligation is a dis-chargeable property settlement or a non-disehargeable obligation for support or maintenance; a non-exhaustive list of such factors routinely includes the following: (1) whether the obligation terminates upon the death or remarriage of either spouse, upon any children reaching majority or upon some other similar event; (2) how the obligation is characterized in the parties’ settlement agreement or divorce decree, and the context in which it appears; (3) whether the payments appear to balance disparate income between the former spouses; (4) whether the payments are to be made directly to the spouse or to a third party; (5) whether the payment is payable in a lump sum or in installments over time; (6) whether the parties intended to create an obligation of support or to divide marital property; (7) whether an assumption of debt has the effect of providing necessary support to insure that the daily needs of the former spouse and any children of the marriage are met; (8) whether an assumption of debt has the effect of providing support necessary to insure a home for the non-debtor spouse and his or her minor children. Mackey v. Kaufman (In re Kaufman), 115 B.R. 435, 440—11 (Bankr.E.D.N.Y.1990) (numerous citations given); see also Goin v. Rives (In re Goin), 808 F.2d 1391, 1392-93 (10th Cir.1987) (citing Shaver v. Shaver (In re Shaver), 736 F.2d 1314, 1316 (9th" }, { "docid": "3720991", "title": "", "text": "would not pay alimony, maintenance or support. It is also consistent with the proposal in the Settlement Offer that the Debtor pay alimony of $235 per month, but that the alimony would be significantly reduced or cease as soon as the marital home was sold. Likewise, it is consistent with the Debtor’s actions immediately after the Decree, when he refused to pay even the one-half $) mortgage payment as ordered in the Decree. The fact that the HHEICO Payments do not cease upon Dennison’s death, remarriage, or cohabitation, which is typical of support awards, is further evidence of the parties’ intent, although, of course, not binding in this proceeding. See Goin v. Rives (In re Goin), 808 F.2d 1391, 1393 (10th Cir.1987). See also Utah Code Ann. § 30 — 3—5(8)—(9) (providing that “[u]nless a decree of divorce specifically provides otherwise, any order of the court that a party pay alimony to a former spouse automatically terminates upon the remarriage of that former spouse” or “upon establishment by the party paying alimony that the former spouse is cohabitating with another person”). Finally, the Debtor’s Settlement Offer indicates that the Debtor believed Dennison had an equity interest in the HHEICO Contract and offered to divide the proceeds on that basis. To contradict this evidence of the parties’ shared intent are the following facts. Dennison testified that at the time of the Decree, she needed additional sums in order to make her one-half Qh) payment of the mortgage on the marital home until it was sold and that even after the marital home was sold, she would probably have a shortfall. Three (3) years later the divorce court also indicated Dennison relied upon the HHEICO Payments for her support, as did her attorney in that proceeding. The Court recognizes that “[an] obvious need for support at the time of the divorce is enough to presume that the obligation was intended as support even when it is otherwise identified in an agreement between the parties as property settlement.” Sampson, 997 F.2d at 725. At the time of the Decree the Debtor had surplus" }, { "docid": "10327294", "title": "", "text": "where the obligation is la-belled a property settlement, In Re Carrigg, infra. In In Re Carrigg, for example, the husband’s obligation to pay his wife $230 a month was labelled a property settlement in the divorce decree. Notwithstanding this label, the court found the husband’s liability to be nondischargeable alimony: “The payments, required in the case at bar, relating to living expenses and terminating on the death or remarriage of the plaintiff appear to be in the nature of alimony, maintenance or support.” 14 B.R. at 662, 8 B.C.D. at 332. See also In Re Gentile, 16 B.R. 381, 383 (Bkrtcy.S.D.Ohio 1982). (“It is of no consequence that the agreement expressly provides that there is to be no payment of alimony by either party, for it is well understood that language of the agreement is not controlling.”) In determining whether an award is alimony, maintenance or support, courts have considered two types of evidence. First, they have looked at the form of the award. Is the award to be paid in installments, does it terminate on the death of either spouse or on the remarriage of the recipient spouse, is it labelled support by the divorce court? These factors are given some weight as evidence of the parties’ intentions, but will not defeat an award which is clearly intended to be for a spouse’s support. As Judge Mabey explained in the Warner case, “If a debt is imposed to discharge the state law duty of support, no matter what the form of the obligation, it is not dischargeable. The award need not have the traditional characteristics of support.” 5 B.R. at 440, 6 B.C.D. at 791. Second, courts consider the circumstances of the parties to determine whether a need for support exists. It should be emphasized that even should a need for support exist, an award may not have been granted to alleviate this need and would therefore be dischargeable. In determining whether a need exists courts have considered the rela tive health, education and employment history of the spouses. In the present case, the award of $23,100 cannot be" }, { "docid": "23396502", "title": "", "text": "or a property settlement is controlled by federal bankruptcy law, rather than state law.” In re Garrard, 151 B.R. 598, 601 (Bankr.M.D.Fla. 1993). The Court has also held that “[t]he labels used in a settlement agreement are not controlling on the issue of dischargeability.” Id. See In re Cassata, 119 B.R. 280 (Bankr.M.D.Fla.1990). The plaintiff bears the burden of proving that the debt is in the nature of support. Id. See In re Long, 794 F.2d. 928 (4th Cir.1986). If the debt is a true alimony award, it is nondischargeable pursuant to 11 U.S.C. § 523(a)(5), which states: (a) A discharge under section 727 ... of this title does not discharge an individual debtor from any debt— (5) to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouses or child, in connection with or separation agreement, divorce decree or other order of a court of record, determination made in accordance with state or territorial law by a governmental unit, or property settlement agreement. ... 11 U.S.C. § 523(a)(5). This Court has previously considered six factors in evaluating the nature of a debt: 1. Whether the obligation under consideration is subject to contingencies, such as death or remarriage; 2. Whether the payment was fashioned in order to balance disparate incomes of the parties; 3. Whether the obligation is payable in installments or in lump sum; 4. Whether there are minor children involved in a marriage requiring support; 5. The respective physical health of the spouse and the level of education; 6. Whether, in fact, there was need for support at the time of the circumstances of the particular case; In re Bowsman, 128 B.R. 485 (Bankr. M.D.Fla.1991). The Final Judgment for Dissolution of Marriage awarded former wife $1,500 per month in permanent periodic alimony and $350 per month in child support. The child support award must terminate before the clnld’s nineteenth birthday. The permanent periodic alimony award is terminable upon the death of former wife or former husband, or upon former wife’s remarriage to or cohabitation with a member of the" }, { "docid": "23396503", "title": "", "text": "U.S.C. § 523(a)(5). This Court has previously considered six factors in evaluating the nature of a debt: 1. Whether the obligation under consideration is subject to contingencies, such as death or remarriage; 2. Whether the payment was fashioned in order to balance disparate incomes of the parties; 3. Whether the obligation is payable in installments or in lump sum; 4. Whether there are minor children involved in a marriage requiring support; 5. The respective physical health of the spouse and the level of education; 6. Whether, in fact, there was need for support at the time of the circumstances of the particular case; In re Bowsman, 128 B.R. 485 (Bankr. M.D.Fla.1991). The Final Judgment for Dissolution of Marriage awarded former wife $1,500 per month in permanent periodic alimony and $350 per month in child support. The child support award must terminate before the clnld’s nineteenth birthday. The permanent periodic alimony award is terminable upon the death of former wife or former husband, or upon former wife’s remarriage to or cohabitation with a member of the opposite sex. The Court finds that these awards are clearly in the nature of support because they were designed to provide support for the former husband’s minor child and his former spouse and to balance the incomes of the parties. The $120,000 lump sum alimony award, however, is unlike either of these awards. The divorce court ordered the lump sum award under the equitable distribution portion of the judgment, including it in the property settlement. Although the divorce court labeled the award “lump sum alimony,” the award is characterized as a property award. The award is non-modifiable and is not contingent on death or remarriage. The award was also payable in one lump sum, a factor which is indicative of a property award. In re Henry, 5 B.R. 342 (Bankr. M.D.Fla.1980). At the time of their divorce, both parties were in good physical health. Former wife had a high school education, and former husband had a high school education and a two year L.U.T.C.F. degree. (Joint Ex. 9). In 1993, former wife filed a Motion" }, { "docid": "18734980", "title": "", "text": "Applying the rationale set forth in In re Calhoun, 715 F.2d 1103 (6th Cir.1983), the initial inquiry must be to ascertain whether the state court or the parties to the divorce intended to create an obligation to provide support. In making this determination, the bankruptcy court may consider any relevant evidence, including those factors utilized by state courts to make a factual determination of intent to create support. In this respect, it is significant to note that the Texas Supreme Court has recognized that support payments, although considered alimony in other states, are not so characterized in Texas. Francis v. Francis, 412 S.W.2d 29, 32 (Tex.1967). Thus, in Erspan v. Badgett, 647 F.2d 550 (5th Cir.1981), the Court held that for purposes of interpreting the federal bankruptcy law, the federal court is not bound by the label a state attaches to an award, but rather must look to its substance. Further, as noted in Francis v. Francis, supra., under the scheme of the Texas Family Code, a divorce court is authorized to divide the separate and community property in a just and equitable manner, and [Fjactors which the Texas courts may take into account in making the division and award “include the disparity of the earning power of the parties as well as their business opportunities....” the physical conditions of the parties, probable future need for support, and educational background; ... [t]he fault in breaking up the marriage and the benefits the innocent spouse would have received from a continuation of the marriage. Other factors tending to disclose the intent of the parties is whether the obligation ends with the remarriage of the recipient spouse or the death of either spouse; whether the obligation is to be paid in installments over a long period of time, and the location of the obligation in the decree in relation to other dispositive provisions. The presence of one or more of these factors does not necessarily mean the obligation is one of support nor does the absence of one or more indicate the award is part of a property settlement. Determination of whether" }, { "docid": "13904259", "title": "", "text": "divorce proceeding considered the following factors to determine the extent of the distributive award: 1. The income and property of each party at the time of the marriage, and at the time of the commencement of the divorce action; 2. The duration of the marriage and the age and health of both parties; 3. The efforts, expenditures and contributions, both monetary and otherwise, made by both parties which resulted in the debtor achieving a medical license; and 4. The probable future financial circumstances of both parties. See Barry W. Raff v. Anne M. Raff, Index #4337/83, June 26, 1987 (G. Delaney, J.S.C). When reviewing the state law cases, there is a sense of ambiguity as to whether the division of a medical license or a pension, though characterized as marital property, is in fact a property settlement for the purposes of 11 U.S.C. § 523(a)(5). In the absence of clear intent, bankruptcy courts necessarily refer to various factors present at the time the debt was incurred and at the time of bankruptcy. Included in these factors are: disparity in earning power, business opportunities, level of education, physical health, probable future need, fault in the marriage break-up, and the benefit the non-debtor spouse would have received had the marriage continued. See In re Bedingfield, 42 B.R. 641, 643; NORTON BANKRUPTCY LAW AND PRACTICE § 27.61 at 87. Although under state law a distributive award may appear to be in the nature of a property settlement, the issue is whether under federal law it is a property settlement. Within this context bankruptcy courts have been confronted with applications to discharge a spouse’s award of distributive awards with regard to pension funds and lump-sum alimony intended to compensate a debtor’s wife for her contribution to a debtor’s professional education. Although the state courts have determined that pensions and medical licenses acquired during the marriage are marital property, bankruptcy courts have determined that the distributive awards derived from this marital property are in the nature of alimony, maintenance and support and are nondis-chargeable, as opposed to property settlements which would be subject to discharge-ability." }, { "docid": "1095986", "title": "", "text": "child to support; (3) the relative inequity of income between the parties; and (4) the mortgage money, although not paid directly to the wife, closely and directly benefited her and the child. Maitlen, 658 F.2d at 468. Additionally the Court determined that “[germination of an obligation of the husband upon death or remarriage of the wife is an indication that the obligation is support rather than a division of property,” and the obligation had a termination stipulation. Id. However, the Court did note that simply because one paragraph addresses support does not preclude the possibility that another paragraph may provide support in a different form. In this ease, it is clear that the Divorce Court intended that a portion of the award supplement the support for Mrs. Wright and the three minor children. Most of the award, however, is in the nature of a property settlement. The award is pursuant to § 503 of the Illinois Marriage and Dissolution Act, which sets out criteria for a property settlement. This section provides that a state court judge must divide marital property in “just proportions” considering the following relevant factors: (1) the contribution or dissipation of each party with respect to the property; (2) the value of the property set apart to each spouse; (3) the duration of the marriage; (4) the economic circumstances of each spouse; (5) the age, health, employability, amount and sources of income and needs of each party; (6) the custodial provisions for any children; (7) whether the apportionment is in lieu of or in addition to maintenance; and (8) the opportunity of each spouse for future acquisition of capital assets and income. Ill.Rev.Stat.1991, ch. 10, par. 508(d). Therefore, the Divorce Court judge was required to make certain “support” and “maintenance” valuations when determining the Wright’s property settlement. Based on these guidelines, it is clear that the award of $135,000 has characteristics of both a property settlement and support. There are factors indicating an award of support. First, there are three minor children to be provided for. Second, the $40,800 portion of the $135,000 award was intended to" }, { "docid": "1095985", "title": "", "text": "to be provided for; (3) the relative earning power of the spouses; (4) the adequacy of support absent the debt assumption; (5) a lack of a spouse’s receipt of substantial assets reflecting a need for support; (6) if the payment due the nondebtor spouse is clearly identified as proceeds of a sale of what had been a marital asset; (7) whether the payment terminates on death, remarriage, or children coming of age; (8) whether the payment is a lump sum or periodic payments over a long period of time; (9) waivers of maintenance; (10) ability to obtain modification; and (11) tax treatment of the obligation. In Maitlen, 658 F.2d at 468, the Court determined that an obligation to make mortgage payments that appeared in a paragraph numbered 4, which was included under the heading of “Property Settlement Agreement”, constituted support rather than property division. The Court, relying on Woods, 561 F.2d at 29-30, was persuaded by the facts that (1) paragraph 4 came after the paragraph dealing with child support; (2) the existence of a child to support; (3) the relative inequity of income between the parties; and (4) the mortgage money, although not paid directly to the wife, closely and directly benefited her and the child. Maitlen, 658 F.2d at 468. Additionally the Court determined that “[germination of an obligation of the husband upon death or remarriage of the wife is an indication that the obligation is support rather than a division of property,” and the obligation had a termination stipulation. Id. However, the Court did note that simply because one paragraph addresses support does not preclude the possibility that another paragraph may provide support in a different form. In this ease, it is clear that the Divorce Court intended that a portion of the award supplement the support for Mrs. Wright and the three minor children. Most of the award, however, is in the nature of a property settlement. The award is pursuant to § 503 of the Illinois Marriage and Dissolution Act, which sets out criteria for a property settlement. This section provides that a state court" }, { "docid": "3472917", "title": "", "text": "debt owed to a spouse or former spouse for alimony to, maintenance for, or support of such spouse irrespective of whether or not the decree determining the obligation labels it as such. The crucial issue is the function the award was intended to serve. In re Williams, 703 F.2d 1055, 1057 (8th Cir.1983). If the answer is not obvious from the language of the decree then it is appropriate for the court to examine the circumstances surrounding the creation of the liability. Relevant factors may include the parties’ earning power, educational levels, physical health, anticipated support needs, factors contributing to the marriage dissolution, whether the obligation terminates upon death or remarriage, whether the payment applies to balance disparate incomes, whether the payment is in installments, the terms of the final decree and the manner of enforcement. In re Seablom, 45 B.R. 445, 450 (Bankr.D.N.D.1984); In re Hillius Farms, 38 B.R. 334 (Bankr.D.N.D.1984); Matter of In re Midnet, 84 B.R. 776 (Bankr.M.D.Fla.1988). As stated in In re Williams, the inquiry is to be made “in light of all the facts and circumstances relevant to the intention of the parties”, 703 F.2d at 1056-58. Irrelevant to such inquiry, however, are the parties’ circumstances subsequent to entry of the divorce decree. To broaden the scope of the inquiry in this fashion would, in effect, expand the dischargeability issue into an assessment of ongoing financial circumstances which would inject the federal courts into domestic matters. The Eighth Circuit in Draper v. Draper, 790 F.2d 52 (8th Cir.1986), has said that such a “needs” test is inappropriate in section 523(a)(5) actions. Accordingly, what has occurred in the personal and financial lives of Carol and Field McConnell since their divorce has no bearing upon whether the $11,000.00 cash award is or is not alimony. It is the facts and circumstances surrounding the creation of the award itself that are germane. Looking to those circumstances we, first of all, notice that during divorce negotiations no demand for alimony was ever made and that the divorce court, mindful of the parties’ educational levels and the cost of Carol’s" }, { "docid": "1137076", "title": "", "text": "was a need for support at the time of the decree; whether the support award would have been inadequate absent the obligation in question. 3. The intention of the court to provide support. 4. Whether debtor’s • obligation terminates upon death or remarriage of the spouse or a certain age of the children or any other contingency such as a change in circumstances. 5. The age, health, work skills, and educational levels of the parties. 6. Whether the payments are made periodically over an extended period or in a lump sum. 7. The existence of a legal or moral “obligation” to pay alimony or support. 8. The express terms of the debt characterization under state law. 9. Whether the obligation is enforceable by contempt. 10. The duration of the marriage. 11. The financial resources of each spouse, including income from employment or elsewhere. 12. Whether the payment was fashioned in order to balance disparate incomes of the parties. 13. Whether the creditor spouse relinquished rights of support in payment of the obligation in question. 14. Whether there were minor children in the care of the creditor spouse. 15. The standard of living of the parties during their marriage. 16. The circumstances contributing to the estrangement of the parties. 17. Whether the debt is for a past or future obligation, any property division, or any allocation of debt between the parties. 18. Tax treatment of the payment by the debtor spouse. Id. at 638. See also, In re Grijalva, 72 B.R. 334, 336 (S.D.W.Va.1987) (12 factors); In re Anderson, 62 B.R. 448, 454-455 (Bankr.D.Minn.1986) (10 factors); In re Barnett, 62 B.R. 661, 663 (Bankr.E.D.Mo.1986) (18 factors); In re Seidel, 48 B.R. 371, 373 (Bankr.C.D.Ill.1984) (10 factors); In re Pody, 42 B.R. 570 (Bankr.N.D.Ala.1984) (6 factors); In re Altavilla, 40 B.R. 938 (Bankr.D.Mass.1984) (7 factors). The Court in In re Goin, 808 F.2d 1391 (10th Cir.1987), stated that several factors are pertinent to the Bankruptcy Court’s determination of whether a debt is support. These are: 1. If the agreement fails to provide explicitly for spousal support, the Court may presume that the" }, { "docid": "8342335", "title": "", "text": "designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance, or support. Some general principles have emerged from the case law construing 11 U.S.C. § 523(a)(5). First, the burden of proof is on the party objecting to discharge. In Re Bailey, 20 B.R. 906 (Bkrtcy.W.D.Wis. 1982), In Re Fox, 5 B.R. 317, 6 B.C.D. 709 (Bkrtcy.N.D.Tex.1980), In Re Daviau, 16 B.R. 421 (Bkrtcy.D.Mass.1982). Second, what constitutes alimony is a federal, not state law question. In Re Bailey, infra, In Re White, 9 B.R. 11 (Bkrtcy.). Finally, the labels in the divorce decree are not determinative of the nature of the award. In Re Warner, 5 B.R. 434, 6 B.C.D. 788, [1978-1981 Transfer Binder] BANKR.L.REP. (CCH) ¶ 67,631, at 78,061 (Bkrtcy.D.Utah 1980), In Re Carrigg, 14 B.R. 658, 8 B.C.D. 330, 5 C.B.C.2d 446 (Bkrtcy.D.S.C.1981). As noted in Bailey courts look to two types of evidence in determining whether an award was made for alimony, maintenance or support. First, they consider the form of the award. In Re Carrigg, infra, In Re Daviau, infra. Second, they consider whether, according to the parties’ circumstances, a need for support exists. In Re Warner, infra. In the present case, the form of the award is more consistent with a property settlement than with alimony. The award is a lump sum, not made terminable on the wife’s death or remarriage. The award does not appear to have been made for purposes of support as the parties are in roughly equal financial condition. The divorce court announced its intention of dividing the property equally because of the length of the marriage. It made no mention of a need for support. Finally, Wisconsin law mandates the equal division of property, absent special circumstances of need. Wis.Stat. § 767.255 (1979-1980). Thus, where property is divided equally a presumption arises that support was not considered in making the award. Upon the foregoing I must conclude that the debt to Betty and the other debts arising out of the property division in the divorce are dischargeable. Judgment may be entered accordingly." } ]

[ { "docid": "22383907", "title": "", "text": "petition for habeas corpus, it being contended that the vessel at the time of the commission of the crime was within the State of California and under its jurisdiction, saying — “Whether the location of the alleged crime was upon the high seas and exclusively within the jurisdiction of the United States required consideration of many facts and seriously controverted questions of law, including the alleged error involving the jurisdiction of the court.” Id., p. 199. But the rule, often broadly stated, is not to be taken to mean that the mere fact that the court which tried the petitioner had assumed jurisdiction, necessarily deprives another court of authority to grant a writ of habeas corpus. As the Court said in the case of Coy, supra, pp. 757, 758, the broad statement of the rule was certainly not intended to go so far as to mean, for example, “that because a federal court tries a prisoner for an ordinary common law offence, as burglary, assault and battery, or larceny, with no averment or proof of any offence against the United States, or any connection with a statute of the United States, and punishes him by imprisonment, he cannot be released by habeas corpus because the court which tried him had assumed jurisdiction.” Despite the action of the trial court, the absence of jurisdiction may appear on the face of the record (see In re Snow, supra; Hans Nielsen, Petitioner, supra, p. 183) and the remedy of habeas corpus may be needed to release the prisoner from a punishment imposed by a court manifestly without jurisdiction to pass judgment. It must never be forgotten that the writ of habeas corpus is the precious safeguard of personal liberty and there is no higher duty than to maintain it unimpaired. Ex parte Lange, supra. The rule requiring resort to appellate procedure when the trial court has determined its own jurisdiction of an offense is not a rule denying the power to issue a writ of habeas corpus when it appears that nevertheless the trial court was without jurisdiction. The rule is not one" } ]

[ { "docid": "23605305", "title": "", "text": "“the court below was required to grant the petitioner a hearing, if the petition, return and traverse raised, substantial issues of fact.” O’Keith v. Johnston, 9 Cir., 122 F.2d 554, 555. No hearing was had in this case, the court entering its order on the pleadings filed. The question before us is whether the court below erred in not granting a hearing. To state it differently, Did it appear “from the petition itself that the party” was “not entitled” to a writ, or did the application and traverse raise substantial issues of fact so as to require the court below to grant petitioner a hearing? Bowen v. Johnston, 306 U.S. 19, 23, 59 S.Ct. 442, 444, 83 L.Ed. 455, states the scope and the purpose of the writ of habeas corpus in the following language: “Where the District Court has jurisdiction of the person and the subject matter in a criminal prosecution, the writ of habeas corpus cannot be used as a writ of error. The judgment of conviction is not' subject to collateral attack. [Cases cited.] The scope of review on habeas corpus is limited to the examination of the jurisdiction of the court whose judgment of conviction is challenged. [Cases cited.] But if it be found that the court had no jurisdiction to try the petitioner, or that in its proceedings his constitutional rights have been denied, the remedy of habeas corpus is available. [Cases cited.]” The petitioner-appellant concedes that the trial court had jurisdiction of his person and of the subject matter; he contends that jurisdiction was lost during the progress of the trial by reason of denial of certain constitutional rights to which he was entitled. We turn to the first question. As a part of his brief in support of his petition for the writ, the petitioner asserts that he had no knowledge of the taking of his papers until they were produced, in court. He was represented by counsel during the trial and obj ection was made to the introduction of these papers in evidence, which was overruled by the trial Judge and the" }, { "docid": "21080447", "title": "", "text": "proceeding only where the original judgment of conviction was void or where something has happened sincé its rendition to entitle the petitioner to his release. According to Illinois Supreme Court decisions, this means that if the petition and return in the habeas corpus proceeding show that the court which rendered the original judgment had jurisdiction over the person and over the subject matter, and nothing has happened since the conviction to entitle the applicant to his release, the court to which the petition is addressed lacks power to discharge the prisoner. The petitions for habeas corpus here involved did not challenge the court’s jurisdiction over the person, nor did they allege that anything had happened since the rendition of the judgment which would entitle the petitioner to his release. The allegations that petitioner did not consent to the guilty plea and that he was not represented by proper counsel, moreover, did not challenge jurisdiction over the subject matter, within the meaning of that term as used in defining the power of Illinois courts to release prisoners on habeas corpus. Consequently, it seems highly probable that under the Illinois decisions the writ of habeas corpus was not the proper remedy in this case. That this is so is further borne out by the fact that in Illinois orders denying petitions for habeas corpus are not subject to appellate review. People v. McAnally, 221 Ill. 66, 68, 77 N. E. 544. We cannot assume that Illinois would so far depart from its general appellate procedure as to deny appellate review of orders denying applications for habeas corpus, if such applications were the proper procedure for challenging violations of fundamental rights to life and liberty guaranteed by the United States Constitution. Since the record thus shows that petitioner’s applications for a writ of habeas corpus were probably denied because he did not seek the proper remedy under Illinois law, it does not appear that the judgments we are asked to review do not rest on an adequate non-federal ground. Nor do the denials of petitioner’s applications for habeas corpus present a federal question" }, { "docid": "15852434", "title": "", "text": "the second time, for a writ of habeas corpus. In view of the previous proceedings in the District Court and the disposition thereof, I entertained the present petition — notwithstanding that in the ordinary course such a petition addressed to an individual judge of the Court of Appeals is denied, the appropriate procedure being to address the same to the District Court or to one of its judges. Brosius v. Botkin (1940), 72 App.D.C. 29, 110 F.2d 49. Upon the ground, among others, that the petition for a writ of habeas corpus fails to state facts which entitle Quantz to the issuance of a writ, the Government opposes the same. The question thus raised is whether or not, assuming the truth of well-pleaded allegations of the petition, they show that there was in the criminal proceeding such a denial of a right or rights guaranteed a defendant in a criminal case by the Constitution as to deprive the District Court of jurisdiction to impose sentence. That is the sole question before me. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85 L. Ed. 830 (1941). Even if I should find error in the conduct of the criminal proceeding, I -cannot under a petition for a writ of habeas corpus collaterally attacking the jurisdiction of the District Court in that proceeding, set the judgment aside unless the error reaches the level of a deprivation of ■some right guaranteed by the Constitution. Matters of error not reaching such a level are for determination in an appellate, not in a habeas corpus, proceeding. Smith v. United States (1950), 88 U.S.App.D.C. 80, 187 F.2d 192. Counsel for Quantz urged that the petition for a writ of habeas corpus should \"be considered in connection with a transcript of the criminal proceeding. The Government opposed. After hearing argument on that subject, I reached the view that in the absence of a transcript of the criminal proceeding I could not satisfactorily pass upon the sufficiency of the allegations of the petition for a" }, { "docid": "15070039", "title": "", "text": "hearing. I. Before reaching the merits of this appeal, we must first respond to appellee’s assertion that the district court lacked jurisdiction over appellant’s petition for a writ of habeas corpus. At the time the petition was filed, the appellant was incarcerated in Albuquerque, New Mexico. Subsequent to filing the petition but prior to the rendering of judgment, the appellant was removed from Albuquerque, New Mexico, to his present location of incarceration in El Reno, Oklahoma. It is well established that jurisdiction attaches on the initial filing for habeas corpus relief, and it is not destroyed by a transfer of the petitioner and the accompanying custodial change. Ahrens v. Clark, 335 U.S. 188, 193, 68 S.Ct. 1443, 1445, 92 L.Ed. 1898 (1948); Weeks v. Wyrick, 638 F.2d 690, 692-93 (8th Cir.1981); McClure v. Hopper, 577 F.2d 938, 939-40 (5th Cir.1978), cert. denied, 439 U.S. 1077, 99 S.Ct. 854, 59 L.Ed.2d 45 (1979); Smith v. Campbell, 450 F.2d 829, 831-33 (9th Cir.1971). Since the United States District Court for the District of New Mexico had jurisdiction over this habeas corpus petition at the time the petition was filed, that jurisdiction was not defeated by the petitioner’s subsequent transfer. The district court properly entered its judgment. II. Appellant’s claim that he was denied assistance of counsel raises a legitimate question about the constitutionality of his conviction for driving while intoxicated. In Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), the Supreme Court rejected the contention that assistance of counsel is only constitutionally required in the prosecution of nonpetty offenses punishable by more than six months imprisonment. Rather, the Court held that “no person may be imprisoned for any offense ... unless he was represented by counsel at his trial.” Id. at 37, 92 S.Ct. at 2012. The fact that defendant pleaded guilty to this misdemeanor charge does not change the result. See Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948). If, as appellant claims, he was denied assistance of counsel, his conviction is constitutionally invalid. Not all collateral use of constitutionally" }, { "docid": "23561290", "title": "", "text": "THOMAS, Circuit Judge. This is an appeal from a judgment dismissing appellant’s petition for a writ of habeas corpus. The appellant is a prisoner in the United States Medical Center, Springfield, Missouri, of which the appellee is Warden. The court dismissed tire petition on the ground that appellant having set forth facts therein which indicate that he is lawfully held in custody, although believing that he has been mistreated by the prison authorities, the court is without jurisdiction to interfere. If the court’s reason for dismissing the petition is correct, the judgment must be affirmed. Ex parte Quirin v. Cox, Provost Marshall, 317 U.S. 1, 24, 63 S.Ct. 2, 87 L.Ed. 3; Walker v. Johnston, 312 U.S. 275, 284, 61 S.Ct. 574, 85 L.Ed. 830. The court’s judgment is based upon 18 U. S.C.A. § 4042, which provides that “The Bureau of Prisons, under the direction of the Attorney General, shall— “(1) have charge of the management and regulation of all Federal penal and correctional institutions; “(2) provide suitable quarters and provide for the safekeeping, care, and subsistence of all persons charged with or convicted of offenses against the United States, or held as witnesses or otherwise; “(3) provide for the protection, instruction, and discipline of all persons charged with or convicted of offenses against the United States.” (Emphasis supplied.) The question presented is whether the foregoing statute entrusting the supervision of discipline in federal prisons to the Bureau of Prisons under the direction of the Attorney General is exclusive or whether the federal courts in habeas corpus proceedings may interfere therein and give directions to the Warden. Although represented in this court by able counsel, the appellant himself prepared his petition for writ of habeas corpus in the district court. In his petition he averred that on the 19th of March, 1946, an indictment was returned against him in the District of Oregon, charging him with violation of 18 Ú.S.C. §§ 1111 and 1151; that on the 10th of May, 1946, he was found guilty as charged and that on the 7th day of June, 1946, he was sentenced" }, { "docid": "23402109", "title": "", "text": "its sentence was void.” The limitation on the general rule is stated in the case of Bowen v. Johnston, 306 U.S. 19, 59 S.Ct. 442, 83 L.Ed. 455. In that case Bowen had been convicted in 1930 of murder committed on the Government Reservation, in Georgia, known as the Chicka-mauga and Chattanooga National Park. In 1937 he petitioned for habeas corpus, alleging that the indictment was void, and that no legal judgment could be based upon it, since it failed to show jurisdiction, the United States not having jurisdiction of offenses committed in the Park. In referring to the contention of the respondent that the judgment was not open to collateral attack upon the grounds asserted by Bowen, Mr. Chief Justice Hughes said at pages 26-27 of 306 U.S., at page 446 of 59 S.Ct.: “* * * The rule requiring resort to appellate procedure when the trial court has determined its own jurisdiction of an offense is not a rule denying the power to issue a writ of habeas corpus when it appears that nevertheless the trial court was without jurisdiction. The rule is not one defining power but one which relates to the appropriate exercise of power. It has special application where there are essential questions of fact determinable by the trial Court. Rodman v. Pothier, supra [264 U.S. 399, 44 S.Ct. 360, 68 L.Ed. 759]. It is applicable also to the determination in ordinary cases of disputed matters of law whether they relate to the sufficiency of the indictment or to the validity of the statute on which the charge is based. Id.; Glasgow v. Moyer, supra, [225 U.S. 420, 32 S.Ct. 753, 56 L.Ed. 1147]; Henry v. Henkel, supra [235 U.S. 219, 35 S.Ct. 54, 59 L.Ed. 203]. But it is equally true that the rule is not so inflexible that it may not yield to exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent. Among these exceptional circumstances are those indicating a conflict between state and federal authorities on a question of law involving concerns of large" }, { "docid": "23605304", "title": "", "text": "issue writ.” An attorney was appointed to represent the petitioner in the court below. An order denying the application for writ of habeas corpus and dismissing the petition was entered January 14, 1941. The petitioner then made application for permission to proceed in forma pauperis, and thereafter filed in the same court a “Motion for Findings of Fact' and Conclusions of Law.” This motion the Court denied. The petitioner then filed an affidavit and request for permission to prosecute a petition for rehearing in said court in forma pauperis. The petition for rehearing was filed and denied by the court. Then followed an application for “bill of review” and motion for extension of time to file an appeal, both of which were denied by the District Court. Thereafter, petitioner appealed to this court from the order denying his, application for writ of habeas corpus, and permission was granted him to proceed in forma pauperis. By statute, 28 U.S.C.A. § 461, and decision (Walker v. Johnston, 312 U.S. 275, 284, 61 S.Ct. 574, 85 L.Ed. 830) “the court below was required to grant the petitioner a hearing, if the petition, return and traverse raised, substantial issues of fact.” O’Keith v. Johnston, 9 Cir., 122 F.2d 554, 555. No hearing was had in this case, the court entering its order on the pleadings filed. The question before us is whether the court below erred in not granting a hearing. To state it differently, Did it appear “from the petition itself that the party” was “not entitled” to a writ, or did the application and traverse raise substantial issues of fact so as to require the court below to grant petitioner a hearing? Bowen v. Johnston, 306 U.S. 19, 23, 59 S.Ct. 442, 444, 83 L.Ed. 455, states the scope and the purpose of the writ of habeas corpus in the following language: “Where the District Court has jurisdiction of the person and the subject matter in a criminal prosecution, the writ of habeas corpus cannot be used as a writ of error. The judgment of conviction is not' subject to collateral attack." }, { "docid": "4177458", "title": "", "text": "petition stated a cause of action entitling the appellant to discharge from custody if the allegations thereof were true. It alleged that the appellant was restrained of his liberty, described the person detaining him and the place of detention, and asserted illegality of the restraint by alleging that the appellant was at the time of the filing of the petition of sound mind and that his original criminal sentence had expired. These allegations alone, if true— and as we have pointed out above they must at this stage of a habeas corpus proceeding be taken as true, as if on demurrer, and this even if improbable or unbelievable (which on their face they were not) — stated a cause of action for release. The additional allegation that the appellant “was not properly adjudicated” insane was in this form but a conclusion of law. But this did not invalidate the other allegations of the petition; and it would have been proper, if upon hearing the appellant desired to press this aspect of the petition, to permit an amendment of the petition setting out the facts upon which the claim of improper adjudication was made and if necessary an amendment of the return, so that inquiry could be made into the question whether or not the original adjudication of insanity was void for lack of jurisdiction to enter the judgment or merely erroneous. If void, the judgment was a proper subject of attack in the habeas corpus proceeding, Johnson v. Zerbst, 1938, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; if the judgment was merely erroneous, it was not the proper subject of such an attack, Matter of Gregory, 1911, 219 U.S. 210, 31 S.Ct. 143, 55 L.Ed. 184; United States v. Pridgeon, 1894, 153 U.S. 48, 14 S.Ct. 746, 38 L.Ed. 631; United States v. Davis, 1901, 18 App.D.C. 280. Had the court either issued a writ directed to Dr. Overholser, the person described in the petition as detaining the appellant in custody, and thus required him to certify to the court the true cause of the detention and, at" }, { "docid": "8194648", "title": "", "text": "of the federal courts counsels against such course, at least where the error does not trench on any constitutional rights of defendants nor involve the jurisdiction of the trial court.’ 332 U.S., at 181-182. [67 S.Ct. at 1592.]” Even if these may be considered as new grounds, the application fails to set forth the reason why petitioner was previously unable to assert the new grounds, and does not allege that he had previously been unaware of the significance of the relevant facts which is a standard established for consideration of successive motions under § 2255. Sanders v. United States, 297 F.2d 735 (9th Cir. 1961). It appearing from the foregoing that the application for habeas corpus was defective on its face and contrary to the provisions of § 2255, the District Court was correct in holding that it had no jurisdiction to entertain the same, and in ordering that the petition be denied. This makes it unnecessary to consider the contention of appellant that the court should have permitted him to be personally present at the hearing on the petition, inasmuch as the issue before the court was purely one of law, and did not require the presence of petitioner. Such presence is warranted only where there is required to be determined by the court a question of fact wherein petitioner’s own knowledge is involved. Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830; United States v. Hayman, supra. For reasons appearing above, the petitioner’s request that this court treat this appeal as an original petition for a writ of habeas corpus is denied." }, { "docid": "23573975", "title": "", "text": "at which the judgment was entered had expired. It is the general rule that a court, in the absence of statutory authority, cannot set aside or modify its final judgment after the expiration of the term at which it was entered, unless a proceeding for that purpose was begun during that term. United States v. Mayer, 235 U.S. 55, 35 S.Ct. 16, 59 L.Ed. 129; Kelly v. United States, 9 Cir., 297 F. 212; Fine v. United States, 7 Cir., 67 F.2d 591. There are certain exceptionsi but the reasons advanced for setting aside the judgment in this case do not fall within any recognized exception. See United States v. Mayer, supra; Holiday v. Johnston, 313 U.S. 342; 61 S.Ct. 1015, 85 L.Ed. 1392; Gilmore v. United States, 10 Cir., 124 F.2d 537. But we do not rest our decision solely upon the court’s lack of jurisdiction. It is urged that the trial court committed error in denying the appellant’s petition for writ of habeas corpus ad prosequendum. The record reveals that Gilmore was confined in the federal penitentiary at Alcatraz, California, when the motion to vacate was heard and denied. He insists that it was incumbent upon the trial court to issue the writ of habeas corpus ad prosequendum to enable him to be present to testify in an effort to sustain the burden of proving the facts alleged in his motion. It is apparent that the appellant should have sought to have the court issue a writ of habeas corpus ad testificandum since he desired to be removed from prison to the jurisdiction of the court to testify in his own behalf. The function of the writ of habeas corpus ad prosequendum is to remove a prisoner to the proper jurisdiction for prosecution. Ex parte Bollman, 4 Cranch 75, 8 U.S. 75, 2 L.Ed. 554. The improper designation of the desired writ is not fatal since the petition adequately disclosed that the appellant prayed the issuance of a writ which would enable him to be present in court to testify at the hearing on the motion. The writ" }, { "docid": "23402108", "title": "", "text": "indictments is not open on habeas corpus; it may be in removal cases, in view of the hardship to the individual and the inadequacy of other remedies.” (Italics supplied.) It cannot be said, however, that there may never be a departure from the rule that an indictment or information is not subject to collateral attack after conviction. In United States v. Pridgeon, 153 U.S. 48, 14 S.Ct. 746, 38 L.Ed. 631, a judgment was attacked by habeas corpus upon the ground that the indictment was defective. The Supreme Court stated that, while the indictment might have been found defective upon demurrer or writ of error, the defects were not such as to justify a ruling that it was open to collateral attack after conviction. The court said at pages 59-60 of 153 U.S., at page 750 of 14 S.Ct.: “* * * The habeas corpus proceeding being a collateral attack of a civil nature, it must clearly and affirmatively appear that the indictment charged an offense of which the court had no jurisdiction, so that its sentence was void.” The limitation on the general rule is stated in the case of Bowen v. Johnston, 306 U.S. 19, 59 S.Ct. 442, 83 L.Ed. 455. In that case Bowen had been convicted in 1930 of murder committed on the Government Reservation, in Georgia, known as the Chicka-mauga and Chattanooga National Park. In 1937 he petitioned for habeas corpus, alleging that the indictment was void, and that no legal judgment could be based upon it, since it failed to show jurisdiction, the United States not having jurisdiction of offenses committed in the Park. In referring to the contention of the respondent that the judgment was not open to collateral attack upon the grounds asserted by Bowen, Mr. Chief Justice Hughes said at pages 26-27 of 306 U.S., at page 446 of 59 S.Ct.: “* * * The rule requiring resort to appellate procedure when the trial court has determined its own jurisdiction of an offense is not a rule denying the power to issue a writ of habeas corpus when it appears that" }, { "docid": "15070038", "title": "", "text": "been convicted only on the driving while intoxicated charge. In addition to being grounds for revocation of parole, a conviction for criminal conduct during release on parole is grounds for forfeiture of street time. Absent forfeiture, street time is credited to a defendant’s service of his sentence. 28 C.F.R. § 2.52 (1984). Pursuant to its authority under § 2.52, the parole commission ordered appellant’s street time forfeited due to his state court conviction for driving while intoxicated. Appellant contends that this order was constitutionally improper. Appellant does not suggest that the conviction for driving while intoxicated does not justify forfeiture of his street time. However, defendant contends that the forfeiture in his case was improper because his conviction, for which he served a five day sentence, was obtained without the assistance of counsel and without a waiver of his right to counsel. The district court held that the defendant had not been improperly deprived of credit for his street time, that no constitutional issue was present, and that there was no need for an evidentiary hearing. I. Before reaching the merits of this appeal, we must first respond to appellee’s assertion that the district court lacked jurisdiction over appellant’s petition for a writ of habeas corpus. At the time the petition was filed, the appellant was incarcerated in Albuquerque, New Mexico. Subsequent to filing the petition but prior to the rendering of judgment, the appellant was removed from Albuquerque, New Mexico, to his present location of incarceration in El Reno, Oklahoma. It is well established that jurisdiction attaches on the initial filing for habeas corpus relief, and it is not destroyed by a transfer of the petitioner and the accompanying custodial change. Ahrens v. Clark, 335 U.S. 188, 193, 68 S.Ct. 1443, 1445, 92 L.Ed. 1898 (1948); Weeks v. Wyrick, 638 F.2d 690, 692-93 (8th Cir.1981); McClure v. Hopper, 577 F.2d 938, 939-40 (5th Cir.1978), cert. denied, 439 U.S. 1077, 99 S.Ct. 854, 59 L.Ed.2d 45 (1979); Smith v. Campbell, 450 F.2d 829, 831-33 (9th Cir.1971). Since the United States District Court for the District of New Mexico had jurisdiction" }, { "docid": "22301700", "title": "", "text": "require the court to issue a rule on respondent to show cause why a writ should not issue. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357; Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830; Holiday v. Johnston, 313 U.S. 342, 550, 61 S.Ct. 1015, 85 L.Ed. 1392; Waley v. Johnston, 316 U.S. 101, 62 S.Ct. 964, 86 L.Ed. 1302. Appellant tendered in this court an original petition for a writ of habeas corpus in which he particularizes facts showing that while confined in the United States Public Health Service Hospital at Lexington, Kentucky, and in the custody of appellee, Dr. John D. Reichard, he suffered bodily harm and injuries and was subjected to assaults, cruelties and indignities from guards and his co-inmates. The detail of these incidents is unnecessary to a decision of the issue before us. Suffice it to say, the acts of which appellant complains, if true, were contrary to the regulations of the institution in which he was confined and were not necessary for the proper punishment of an insubordinate inmate to secure his submission and obedience to its reasonable rules and regulations. This petition will be treated as an amendment to appellant’s original petition and will be referred to the district court for its consideration. Ex parte Hull, 312 U.S. 546, 61 S.Ct. 640, 85 L.Ed. 1034. Any unlawful restraint of personal liberty may be inquired into on habeas corpus. In re Bonner, 151 U.S. 242, 14 S.Ct. 323, 38 L.Ed. 149. This rule applies although a person is in lawful custody. His conviction and incarceration deprive him only of such liberties as the law has ordained he shall suffer for his transgressions. The Government has the absolute right to hold prisoners for offenses against it but it also has the correlative duty to protect them against assault or injury from any quarter while so held. A prisoner is entitled to the writ of habeas corpus when, though lawfully in custody, he is deprived of some right to which he is lawfully entitled even in" }, { "docid": "19246083", "title": "", "text": "the ground that his plea was coerced. The opinion states that petitioner ‘waived the defense and the constitutional right if any he had, and cannot assert it now on habeas corpus proceedings’. The case is before us on a motion of petitioner to proceed, in forma pauperis on his petition for certiorari and the Government’s confession of error. We grant the-motion and the petition for certiorari. “The Government confesses error-for the reason that the habeas corpus petition raises the material issue whether the plea was in fact coerced by the particular threats alleged which stand undenied on the-record, and that upon that issue petitioner is entitled to a hearing in accordance with Walker v. Johnston,. 312 U.S. 275 [61 S.Ct. 574, 85 L.Ed., 830]. “ * * * If the allegations are found to be true, petitioner’s constitutional rights were infringed. * * And if his plea was so coerced as to deprive it of validity to support the conviction, the coercion likewise deprived it of validity as a -waiver of his right to assail the conviction. Johnson v. Zerbst, 304 U.S. 458, 467 [58 S.Ct. 1019, 1024, 82 L.Ed. 1461, 1468]. “The issue here was appropriately raised by the habeas corpus petition. The facts relied on are dehors the record and their effect on the judgment was not open to consideration and review on appeal. In such .circumstances the use of the writ in the federal courts to test the constitutional validity of a conviction for crime is not restricted to those cases where the judgment of conviction is void for want of jurisdiction of the trial court to render it. It extends also to those exceptional cases where the conviction has been In disregard of the constitutional rights of the accused, and where the writ is the only effective means of preserving his rights. * * * “The principle of res judicata does not apply to a decision on habeas corpus refusing to discharge a prisoner, Salinger v. Loisel, 265 U.S. 224 [44 S.Ct. 519, 68 L.Ed. 989]. .* * * ” A guilty plea induced by promises" }, { "docid": "19033729", "title": "", "text": "sentenced to life imprisonment upon his plea of guilty to a violation of 18 U.S.C.A. 408A [now § 1201]. He based his application for a writ of habeas corpus upon the ground that ‘he was deprived of his liberty without having the assistance of counsel in his behalf.’ “The records of the case disclose that the petitioner intelligently waived the right to counsel.\" Again, what records? We have before us the record in the kidnapping case in Minnesota, where the arraignment, plea and sentence took place. That record is silent on the question of appellant’s knowledge of his rights and waiver of those rights. Hence the record in the sentencing court could not have been the “record” referred to in the habeas corpus proceeding. The only other record of the habeas corpus proceedings certified to us by the clerk of the District Court consists of copies of a number of ex parte affidavits which purport to have been filed in the habeas corpus proceedings. These affidavits relate to all of appellant’s three remaining issues now under consideration, to wit, that he did not know his constitutional right to counsel, that he did not waive that right, and that he was led to believe he would be given a term of years if he entered a plea of guilty. Those affidavits, as heretofore indicated, furnish ample justification for the conclusion that those allegations or claims are without merit. But, again, they appear, insofar as the record before us shows, to have been ex parte, in an ex parte habeas corpus proceeding. We might indulge the presumption that the habeas corpus hearing was not ex parte if it were not for the fact that, as stated in Walker v. Johnston, 312 U.S. 275, 284, 285, 61 S. Ct. 574, 85 L.Ed. 830, the practice in the Ninth Circuit prior to the decision of Walker v. Johnston, February 10, 1941, had been to adjudicate the right to writs of habeas corpus upon the allegations of the petition and traverse, the return, and ex parte affidavits, without the taking of testimony. But we also" }, { "docid": "20075882", "title": "", "text": "this court for the exercise of that jurisdiction were comparatively rare; but in the last few months there have been a number of applications to this court for release of Maryland State prisoners, mostly on the ground that counsel were not assigned for their defense by the State Court. Practically all of these applications originated in letters written from the Maryland Penitentiary to a Judge of this court and are in the nature of very informal petitions for the writ of habeas corpus. Where the facts alleged by the petitioner obviously constituted no proper basis for the issuance of the writ, the court has declined to issue it in accordance with the well established practice in habeas corpus cases. See Walker v. Johnston, 312 U.S. 275, 284, 61 S.Ct. 574, 578, 85 L.Ed. — , where, in the opinion by Mr. Justice Roberts, it is said: “It will be observed that if, upon the face of the petition, it appears that the party is not entitled to the writ, the court may refuse to issue.” In the present case the informal application made by the petitioner indicated the possibility of probable cause for judicial inquiry in a habeas corpus case, and in view of the pendency of a number of similar informal applications, but inconclusive in their content, I followed the practice which I noted had been adopted in at least two recent cases in the Supreme Court (Walker v. Johnston, 312 U.S. 275, 61 S. Ct. 574, 85 L.Ed.-; Holiday v. Johnston, 61 S.Ct. 1015, 85 L.Ed. —) of appointing a competent member of the Baltimore Bar, Mr. G. Van Velsor Wolf, to confer with the petitioner and prepare a formal petition if the facts seemed to justify it. Accordingly Mr. Wolf prepared a formal habeas corpus petition in accordance with the applicable procedure, see 28 U.S.C.A. §§ 451-466, on which the court signed a rule to show cause directed to the Warden of the Maryland Penitentiary. An answer was filed on behalf of the Warden and the case set for hearing on June 3, 1941. No traverse was" }, { "docid": "19033730", "title": "", "text": "under consideration, to wit, that he did not know his constitutional right to counsel, that he did not waive that right, and that he was led to believe he would be given a term of years if he entered a plea of guilty. Those affidavits, as heretofore indicated, furnish ample justification for the conclusion that those allegations or claims are without merit. But, again, they appear, insofar as the record before us shows, to have been ex parte, in an ex parte habeas corpus proceeding. We might indulge the presumption that the habeas corpus hearing was not ex parte if it were not for the fact that, as stated in Walker v. Johnston, 312 U.S. 275, 284, 285, 61 S. Ct. 574, 85 L.Ed. 830, the practice in the Ninth Circuit prior to the decision of Walker v. Johnston, February 10, 1941, had been to adjudicate the right to writs of habeas corpus upon the allegations of the petition and traverse, the return, and ex parte affidavits, without the taking of testimony. But we also cannot conclusively assume that the practice followed generally in the Ninth Circuit was followed in this particular habeas corpus proceeding, although appellant asserts in his brief that it was. Hence, the best we can make out of the record before us is that it appears that appellant nowhere along the line has had an opportunity to be heard on these issues, one or more of which are substantial, could not be determined from the motion and the files and records in the case, and hence should be determined on other than ex parte affidavits. Walker v. Johnston, supra; United States v. Hayman, supra. If these issues have been heard and determined in the habeas corpus proceeding in the manner required by Walker v. Johnston, and the files and records of that proceeding demonstrating that fact are before the trial court in this Sec. 2255 proceeding, the trial court could treat the record of the habeas corpus proceedings as part of the “files and records of the case” within the meaning of Sec. 2255 and deny" }, { "docid": "21493646", "title": "", "text": "to the custody of the Warden of the United States Penitentiary at Leavenworth, Kansas, on January 26, 1940. The petition is voluminous and incoherent; the points raised are many, but those warranting consideration are that the trial court was without jurisdiction to try or impose sentence because: (1) a. each and all of the counts in the indictment failed to charge an offense punishable under 18 U.S.C.A. § 338 (scheme to use the mails to defraud); b. the acts complained of in the indictment constituted offenses exclusively within the jurisdiction of the Federal Trade Commission Act, 38 Stat. 717, as amended 52 Stat. 111, 15 U.S. C.A. §§ 41-51; (2) evidence introduced against him was secured iby illegal search and seizure, consisting of copies of telegrams and other prejudicial data taken from his person at the time of his arrest; (3) illegal removal from the state of Virginia, the place of his arrest, to the trial .district in Ohio, deprived the trial court of jurisdiction over his person; (4) the sentence is void for uncertainty, and (5) the denial of the right to have witnesses produced in his behalf. Upon the filing of the petition for writ of habeas corpus the court appointed counsel for the appellant; issued an order to the Warden to show cause, but ordered that the custody of the appellant be not disturbed pending determination of the issues . raised on the petition as filed. The trial court denied the writ on the grounds that the petition and the return on the order to show cause did not state any grounds warranting the issuance of the writ. The return of the Warden on the order to show cause raises no controverted issues of fact, the determination of which are essential or necessary to the legal questions presented in the petition for the writ. The presence of the petitioner at the trial is not an essential requisite to the proceedings upon the issues raised by the petition. Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830, and Minnec v. Hudspeth, 10 Cir., 123 F.2d" }, { "docid": "11074601", "title": "", "text": "Fed.Cas. page 546, No. 3,230. The article, in effect, prevents a state from discriminating against citizens of other states in favor of its own. Hague v. C. I. O., 307 U.S. 496, 511, 59 S.Ct. 954, 83 L.Ed. 1423. Since no evidence has been offered, and no argument adduced, to show a violation of this article, and I am able to find none, the burden being upon the petitioner to sustain his allegations, my conclusion must be that the charge in the petition has not been established. See Smith v. Lawrence, 5 Cir., 128 F.2d 822, decided June 16, 1942. The writ of habeas corpus is discharged, and the petitioner remanded to the custody of the warden of the Georgia State Prison. The specific constitutional rights charged to have been violated are deprivation of life without due process of law, failure to have adequate assistance of counsel for his defense, denial of trial by jury in the manner required by the Constitution and failure to recognize his right as a citizen of another state to enjoy the privileges and immunities of citizens of the several states. The records received in evidence consist of the entire proceedings in an earlier habeas corpus case heard and determined in state court, including a review by the Supreme Court of the State, and copies of the bill of exceptions, motion for new trial and amendment thereto in the case in the state court in which the petitioner was convicted of murder, as they appear from the records in the State Supreme Court which reviewed the conviction. Issues of fact of a substantial nature having been made by the petition, return and traverse, it was necessary and proper that the prisoner be produced and a hearing of the nature indicated be had. Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830; Holiday v. Johnston, 313 U.S. 342(4), 550, 61 S.Ct. 1015, 85 L.Ed. 1392; Waley v. Johnston, 316 U.S. 101, 62 S.Ct. 964, 86 L.Ed. —. decided April 27,1942. Per Holmes, J. in Frank v. Mangum, 237 U.S. 309, at page 346," }, { "docid": "23664422", "title": "", "text": "WILBUR, Circuit Judge. This is an appeal from an order of the trial court refusing to issue writ of habeas corpus upon petition of James A. Lovvorn. Instead, the court issued an order to show cause. The respondent filed a return and the petitioner traversed the return. Under the decision of the Supreme Court in Walker v. Johnston, 61 S.Ct. 574, 85 L.Ed.-, decided February 10, 1941, the question involved upon the hearing of the order to show cause and, consequently upon the appeal from the order denying the writ, is whether or not the appellant’s petition and traverse construed together as the application for the writ allege a material fact which if true would require the discharge of the petitioner, notwithstanding such material fact may be controverted by the respondent in his return to the rule to show cause. Petitioner alleges that he was tried by a jury upon indictment charging conspiracy and the passing of counterfeit money, that he was found guilty thereof and sentenced, and is in custody because of the judgment of conviction. He claims that the court that sentenced him had no jurisdiction so to do, because he was deprived of the assistance of counsel in violation of the Sixth Amendment to the Constitution of the United States as construed by the Supreme Court in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461. In that regard he alleges in his petition as follows: “Before the verdict was returned, petitioner’s counsel, Mr. W. E. Martin, withdrew from the case without petitioner’s knowledge or consent and when petitioner was at liberty on bond with a right to waive his presence at all the proceedings of trial. Such withdrawal of counsel, as petitioner is advised and believes, divested the court of its jurisdiction to proceed with the trial, and the trial court lost jurisdiction under the due process of law clause and the right to counsel under the Fifth and Sixth Amendments to the Constitution.” “Petitioner appeared in the court room when the jury returned with the verdict, and at the same time, a" } ]

[ { "docid": "14260267", "title": "", "text": "rights because the grand jury that issued the indictment did not have the opportunity to evaluate his demeanor and, thus, could not competently assess the truthfulness of any given answer. 'With respect to counts eleven, twelve and thirteen, which are based upon testimony given before the substituting grand jury, Kamiyama argues that these counts must be dismissed because this testimony was not material to the grand jury before which it was given, that is, because the substituting grand jury was not investigating Moon’s activities, Kamiyama’s allegedly perjurious statements could not have been material to it. Both of these arguments are specious. Common sense dictates that there is no requirement that the perjury occur before the grand jury that issues the indictment. The crime of false declarations before a grand jury or court extends to “any proceeding before or ancillary to any court or grand jury of the United States.” 18 U.S.C.A. § 1623(a) (Supp.1981) (emphasis added). There is no question that if a witness testifies falsely in a proceeding in the district court, a grand jury can issue a perjury indictment even though it did not have an opportunity to observe his demean- or on the witness stand. Similarly, if a prosecutor does not discover that a grand jury witness committed perjury until after the grand jury before whom the witness testified has been disbanded, there is no question that another grand jury can indict the witness for perjury. Common sense also dictates that we reject Kamiyama’s claim regarding the materiality of his allegedly false statements. Although Kamiyama’s statements to the substituting grand jury technically were not material to any investigation then being conducted by that grand jury panel, this does not entitle him to testify falsely. Section 1623(a) extends to proceedings ancillary to those of the grand jury. When Kamiyama testified before the substituting grand jury, it was acting in an ancillary capacity. See generally Dunn v. United States, 442 U.S. 100, 99 S.Ct. 2190, 60 L.Ed.2d 743 (1979); United States v. Tibbs, 600 F.2d 19 (2d Cir. 1979). His allegedly false statements to that grand jury, therefore, come" } ]

[ { "docid": "22815963", "title": "", "text": "Ledger, the acquisition of the Tong II stock, and the manner in which Moon conducted his business affairs. These matters were at the very heart of both grand juries’ inquiries and related to the critical issues at trial. As a matter of common sense, we do not believe there is any basis to label them immaterial. C. Claimed Translation Inaccuracies Kamiyama further contends with respect to his perjury convictions that he was impermissibly indicted and convicted for statements he did not give. Because his principal language was Japanese, he addressed the grand juries through an interpreter. At the request of counsel tape recordings were made of Kamiyama’s grand jury statements. After being indicted for perjury in October 1981, Kamiyama received copies of the tape recordings of his testimony. After they were reviewed by defense counsel Kamiyama moved to dismiss certain specifications contained in Counts Ten through Thirteen on the ground that the allegedly perjurious language did not accurately reflect what he had actually said to the grand jury. He also requested that a court-appointed translator review the accuracy of the challenged language. Before the trial court ruled on Kamiyama’s motion, a superseding indictment was returned which omitted two of the allegedly inaccurate specifications in Count Ten. The trial court ultimately appointed an interpreter to translate the tape recording of those portions of Kamiyama’s grand jury testimony included in the indictment. Judge Goettel also requested defense counsel to “specify the particular portions of the translation that [were] in dispute.” This was done at a pretrial hearing held on March 5, 1982. With respect to the objections to Counts Ten and Eleven, the district court found no significant difference between Kamiyama’s testimony as set out in the superseding indictment and the court-appointed translator’s interpretation of the recordings of that testimony. It did agree with Kamiyama’s claims that certain Count Twelve testimony had been translated inaccurately and it dismissed all of that Count’s specifications objected to by Kamiyama. With regard to Count Thirteen, the court found that the appointed translator’s version of what Kamiyama had said agreed with the language quoted in the" }, { "docid": "22815958", "title": "", "text": "grand jury and later presented to the Grand Jury in accordance with the latter’s instructions. Prior to trial appellant moved to dismiss the perjury counts arising from his testimony before the substitute grand jury on the ground that this testimony was not material to any investigation being conducted by the substitute grand jury. In a published decision, the district court agreed that Kamiyama’s statements to the substitute grand jury technically were not material to any investigation then being conducted by it. United States v. Moon, 532 F.Supp. 1360, 1371 (S.D.N.Y.1982). Nevertheless, the district court refused to dismiss the subject counts, reasoning that § 1623(a) extends to proceedings ancillary to those of a grand jury and that at the time Kamiyama testified before the substitute body it was acting in such an ancillary capacity. Id. On that basis the trial judge found that Kamiyama’s substitute grand jury testimony was material to an investigation being conducted by the Grand Jury. The petit jury thereafter impliedly found by its conviction of defendant on Counts Eleven through Thirteen and No. 194 that Kamiyama gave the testimony knowing it to be false. Kamiyama now challenges the district court’s materiality finding. He argues that the substitute grand jury could not, as a matter of law, constitute an ancillary proceeding; that there was no evidence that the substitute grand jury was ancillary; that the district court erred in ruling on the ancillary proceeding question rather than submitting it to the petit jury; and that the district court impermissibly amended the indictment by relying on the ancillary proceeding theory which was not set out in the indictment. Moreover, he contends that there was insufficient evidence that his misstatements were material to the Grand Jury which eventually heard them. For the reasons discussed below these arguments are of no avail. Section 1623 proscribes false declarations made before a grand jury where those declarations are “material,” i.e., made in response to questions within the purview of matters that the grand jury is investigating. United States v. Berardi, 629 F.2d 723, 727 (2d Cir.), cert. denied, 449 U.S. 995, 101 S.Ct." }, { "docid": "22815957", "title": "", "text": "Eleven, Twelve and Thirteen of the main indictment and the only count of the additional indictment (No. 194). As earlier noted, those counts charged Kamiya ma with making false declarations to a grand jury, in violation of 18 U.S.C. § 1623 (Supp. V 1981). That statute provides in pertinent part that “[wjhoever under oath ... in any proceeding before or ancillary to any ... grand jury of the United States knowingly makes any false material declaration” shall be guilty of a crime. 18 U.S.C. § 1623(a). Before addressing the precise issues raised some background information is necessary. In March 1981 Kamiyama appeared before the June 1980 Additional Grand Jury for the Southern District of New York (Grand Jury) but refused, on Fifth Amendment grounds, to testify. In July 1981 Kamiyama changed his mind and testified before both the Grand Jury and a substitute grand jury which was filling in for the Grand Jury while its members were on vacation. Counts Eleven, Twelve, Thirteen and No. 194 involve statements initially made and recorded before this substitute grand jury and later presented to the Grand Jury in accordance with the latter’s instructions. Prior to trial appellant moved to dismiss the perjury counts arising from his testimony before the substitute grand jury on the ground that this testimony was not material to any investigation being conducted by the substitute grand jury. In a published decision, the district court agreed that Kamiyama’s statements to the substitute grand jury technically were not material to any investigation then being conducted by it. United States v. Moon, 532 F.Supp. 1360, 1371 (S.D.N.Y.1982). Nevertheless, the district court refused to dismiss the subject counts, reasoning that § 1623(a) extends to proceedings ancillary to those of a grand jury and that at the time Kamiyama testified before the substitute body it was acting in such an ancillary capacity. Id. On that basis the trial judge found that Kamiyama’s substitute grand jury testimony was material to an investigation being conducted by the Grand Jury. The petit jury thereafter impliedly found by its conviction of defendant on Counts Eleven through Thirteen and" }, { "docid": "22815956", "title": "", "text": "to that jury’s investigation. Intent to obstruct justice is normally something that a jury may infer from all of the surrounding facts and circumstances. See United States v. Haldeman, 559 F.2d 31, 115-16 (D.C.Cir.1976), cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977); cf. United States v. Dibrizzi, 393 F.2d 642, 644 (2d Cir.1968) (dealing with intent to embezzle). Were it not for the fact that the documents were subpoenaed, such an inference would doubtless have been permissible in this case. But here the ledger and loan agreements were produced pursuant to subpoena and even though there was ample proof of their being falsely backdated, there was no evidence of Kamiyama’s corrupt intent in producing them. Whether or not Kamiyama could have resisted production, as the government argues, evidence of this government theory was not before the trial jury. Without it, a reasonable doubt as to Kamiyama’s mens rea exists. Therefore, his Count Seven conviction must be reversed. B. False Declarations Before the Grand Jury Kamiyama also attacks his convictions under Counts Eleven, Twelve and Thirteen of the main indictment and the only count of the additional indictment (No. 194). As earlier noted, those counts charged Kamiya ma with making false declarations to a grand jury, in violation of 18 U.S.C. § 1623 (Supp. V 1981). That statute provides in pertinent part that “[wjhoever under oath ... in any proceeding before or ancillary to any ... grand jury of the United States knowingly makes any false material declaration” shall be guilty of a crime. 18 U.S.C. § 1623(a). Before addressing the precise issues raised some background information is necessary. In March 1981 Kamiyama appeared before the June 1980 Additional Grand Jury for the Southern District of New York (Grand Jury) but refused, on Fifth Amendment grounds, to testify. In July 1981 Kamiyama changed his mind and testified before both the Grand Jury and a substitute grand jury which was filling in for the Grand Jury while its members were on vacation. Counts Eleven, Twelve, Thirteen and No. 194 involve statements initially made and recorded before this substitute" }, { "docid": "22815975", "title": "", "text": "Clauses by inviting the jury to treat the Church’s practice of soliciting cash contributions from the public as suspect. But the charge clearly refers to Moon’s conduct and not Unification Church practices. . We note that the Unification Church members’ mode of living, evidence of which appellants claim amounts to religious innuendo, is also prevalent in certain centuries-old orders of Christians and Buddhist monks. . Our decision on the materiality issue does not intrude on appellant’s double jeopardy rights under the Fifth Amendment since it neither necessitates a retrial nor has the effect of setting aside a judgment of acquittal on the merits. See Berardi, 629 F.2d at 730; cf. Whalen v. United States, 445 U.S. 684, 688, 100 S.Ct. 1432, 1436, 63 L.Ed.2d 715 (1980) (double jeopardy protects against a second trial for the same offense); United States v. Scott, 437 U.S. 82, 91, 98 S.Ct. 2187, 2194, 57 L.Ed.2d 65 (1978) (judgment of acquittal may not be appealed and terminates prosecution when reversal would necessitate new trial). We have merely adopted another basis for affirming the district court’s conclusion that Kamiyama’s substitute grand jury statements were material. . Citing United States v. Estepa, 471 F.2d 1132, 1137 (2d Cir.1972), Kamiyama also contends that the prosecution abused the grand jury process by not having it reevaluate all of the perjury counts in light of the court-appointed translator’s findings. This claim is meritless; even Kamiyama concedes that the translator’s findings generally accorded with the allegedly perjurious language set forth in the indictment. Where there were material variances, for example in Count Twelve, the government did resubmit its case to the grand jury. . Kamiyama’s final contentions regarding his perjury convictions are: (1) that the government breached some obligation on its part to insure at the grand jury level that Kamiyama’s erroneous answers were in fact intentional lies rather than mere negligent mistakes; and (2) that his false answers underlying Counts Nine and Ten were immaterial because the grand jury already had in its possession information contradicting his testimony. The district court rejected these arguments in its published decision see 532" }, { "docid": "14260243", "title": "", "text": "file false returns, and conspiracy to obstruct the investigations of these tax returns being conducted by the federal grand jury and the United States Attorney. These charges revolve around checking and savings accounts at the Chase Manhattan Bank, in Moon’s name, in which $1.6 million was allegedly deposited from March 1973 through December 1975 and $50,000 of stock in Tong II Enterprises, a company that imports ginseng tea and other merchandise from Korea. The Government alleges that these accounts and stock were owned by Moon personally and that he failed to report the receipt of this stock and the interest earned on the bank accounts as taxable income on his tax returns. The Indictment also names Kamiyama in the conspiracy and separately charges him with aiding and abetting in the preparation and presentation of Moon’s allegedly false tax returns, obstruction of justice, causing false documents to be submitted to the United States Department of Justice, and giving false testimony, to the grand jury. On December 15, 1981, the grand jury returned a superseding indictment that adds an additional perjury count against Kamiyama and makes certain changes in the language of other counts. The defendants have made a number of substantive and procedural motions, many of which have already been decided. Sev eral motions remain outstanding. Moon moves to dismiss the tax counts on the ground that they are legally insufficient and to dismiss all the counts on the grounds of prosecutorial misconduct and abuse of the grand jury process. Kamiyama, in addition to joining in Moon’s motions, moves to dismiss the perjury counts on the grounds that his answers before the grand jury were not material, that the questioning of him was unfairly tailored to extract inaccurate answers, and that the interpreter in the grand jury proceedings failed to translate his testimony properly. I. The Tax Counts The first area of dispute concerns the tax counts of the indictment. Moon moves to dismiss counts two, three, and four, which charge Moon with knowingly and wilfully filing false income tax returns for the years 1973,1974, and 1975, a violation of 26" }, { "docid": "22815961", "title": "", "text": "not material when made to the substitute grand jury, we need not reach or decide the numerous questions regarding whether the substitute grand jury was conducting an ancillary proceeding. The district court’s finding that Kamiyama’s statements were immaterial to the substitute grand jury is at odds with the only evidence in the record on this point. There is uncontradicted, direct testimony in the record by Assistant United States Attorney Martin Flumenbaum that both the Grand Jury and the substitute grand jury were investigating Moon for possible tax violations. For example, Flumenbaum testified that the substitute grand jury was “charged with investigating the same matters that [the Grand Jury] was doing.” This testimony was supported by affidavit evidence to the effect that: the Grand Jury approved in advance the procedure by which Kamiyama testified before the substitute grand jury, which was advised as to the substance of the on-going investigation of Moon and informed of the context in which Kamiyama was testifying; on two occasions the substitute grand jury heard testimony from another witness in this case; and the substitute grand jury actively participated in the proceedings by asking numerous questions relating to the handling of Moon’s tax and business affairs and by requesting the production of documentary evidence. If the substitute grand jury cannot be said to have been investigating Moon’s tax affairs when it was asking Kamiyama about those affairs, it is difficult to perceive exactly what it was doing. Since both grand juries were investigating Moon’s tax affairs, it seems somewhat illogical to say that Kamiyama’s answers were immaterial when given to the substitute grand jury, but material, as the district court found they were, when repeated verbatim to the indicting Grand Jury. Our examination of the questions and responses in issue further strengthens our conviction that they were material to both grand juries’ inquiries. The questions and answers set forth in Counts Eleven, Twelve, Thirteen and No. 194 do not deal simply with tangential matters of no relevance to the instant prosecution. Instead, they are concerned with the sources of Moon’s Chase accounts funds, the Family Fund" }, { "docid": "14260268", "title": "", "text": "jury can issue a perjury indictment even though it did not have an opportunity to observe his demean- or on the witness stand. Similarly, if a prosecutor does not discover that a grand jury witness committed perjury until after the grand jury before whom the witness testified has been disbanded, there is no question that another grand jury can indict the witness for perjury. Common sense also dictates that we reject Kamiyama’s claim regarding the materiality of his allegedly false statements. Although Kamiyama’s statements to the substituting grand jury technically were not material to any investigation then being conducted by that grand jury panel, this does not entitle him to testify falsely. Section 1623(a) extends to proceedings ancillary to those of the grand jury. When Kamiyama testified before the substituting grand jury, it was acting in an ancillary capacity. See generally Dunn v. United States, 442 U.S. 100, 99 S.Ct. 2190, 60 L.Ed.2d 743 (1979); United States v. Tibbs, 600 F.2d 19 (2d Cir. 1979). His allegedly false statements to that grand jury, therefore, come within the scope of section 1623(a). C. “Perjury Trap” Kamiyama argues that the Government had a duty to attempt to refresh his recollection concerning the events surrounding his allegedly perjurious testimony because the Government knew the answers to the questions propounded to him. He argues, in effect, that the Government laid an impermissible “perjury trap.” Having considered the various affidavits and exhibits submitted in connection with this motion, the Court concludes that there is no basis for Kamiyama’s claim. It is well settled that the Government has no obligation to advise a witness that he is committing perjury or to warn a witness that he has a right to recant his testimony. See United States v. Mandujano, 425 U.S. 564, 580-84, 96 S.Ct. 1768, 1778-1780, 48 L.Ed.2d 212 (1976); United States v. Del Toro, 513 F.2d 656, 664-66 (2d Cir.), cert. denied, 423 U.S. 826, 96 S.Ct. 41, 46 L.Ed.2d 42 (1975); United States v. Cuevas, 510 F.2d 848, 851-52 (2d Cir. 1975); United States v. Lardieri, 506 F.2d 319, 322-24 (3d Cir. 1974). Nor" }, { "docid": "14260272", "title": "", "text": "the grand jury clearly exculpatory evidence as to the Moon tax evasion investigation. Kamiyama also argues that the Government had a special obligation to refresh his recollection because the events about which he testified occurred eight years prior to his grand jury appearance. We cannot accept this contention under the circumstances of this case. The Government had notified the defendant in the early spring of 1981 that he was a target of a grand jury investigation. In June 1981, just one month prior to his grand jury appearance, Kamiyama submitted to the Government an affidavit concerning the matters that form the basis for counts nine and ten of the indictment. This simply is not a situation in which an unsuspecting witness is trapped by questions concerning insignificant events in the past. Cf. United States v. Phillips, 540 F.2d 319, 322 n.8 (8th Cir.) (indictment not dismissed when Government neither solicited nor encouraged the alleged perjury), cert. denied, 429 U.S. 1000, 97 S.Ct. 530, 50 L.Ed.2d 611 (1976); United States v. Nickels, 502 F.2d 1173, 1176 (7th Cir. 1974) (same), cert. denied, 426 U.S. 911, 96 S.Ct. 2237, 48 L.Ed.2d 837 (1976). III. Materiality of the Perjury Kamiyama has also moved to dismiss counts nine, ten, twelve, and thirteen on the ground that the allegedly false answers were not material to the grand jury’s inquiry, a sine qua non of a perjury charge. Initially, a few general observations regarding materiality are in order. Because of the investigative function of grand juries, the concept of materiality in the context of a grand jury inquiry is quite broad and liberally construed. United States v. Berardi, 629 F.2d 723, 728 (2d Cir.), cert. denied, 449 U.S. 995, 101 S.Ct. 534, 66 L.Ed.2d 293 (1980); accord, United States v. Byrnes, 644 F.2d 107, 111 (2d Cir. 1981). Thus, the Second Circuit in Berardi stated that [materiality is . . . demonstrated if the question posed is such that a truthful answer could help the inquiry, or a false response hinder it, and these effects are weighed in terms of potentiality rather than probability. Thus, in" }, { "docid": "22815959", "title": "", "text": "No. 194 that Kamiyama gave the testimony knowing it to be false. Kamiyama now challenges the district court’s materiality finding. He argues that the substitute grand jury could not, as a matter of law, constitute an ancillary proceeding; that there was no evidence that the substitute grand jury was ancillary; that the district court erred in ruling on the ancillary proceeding question rather than submitting it to the petit jury; and that the district court impermissibly amended the indictment by relying on the ancillary proceeding theory which was not set out in the indictment. Moreover, he contends that there was insufficient evidence that his misstatements were material to the Grand Jury which eventually heard them. For the reasons discussed below these arguments are of no avail. Section 1623 proscribes false declarations made before a grand jury where those declarations are “material,” i.e., made in response to questions within the purview of matters that the grand jury is investigating. United States v. Berardi, 629 F.2d 723, 727 (2d Cir.), cert. denied, 449 U.S. 995, 101 S.Ct. 534, 66 L.Ed.2d 293 (1980); see United States v. Mulligan, 573 F.2d 775, 779 (2d Cir.), cert. denied, 439 U.S. 827, 99 S.Ct. 99, 58 L.Ed.2d 120 (1978). Whether or not a false declaration is material to a grand jury investigation is a question of law that must be determined by the court, not the jury. Sinclair v. United States, 279 U.S. 263, 298-99, 49 S.Ct. 268, 273, 274, 73 L.Ed. 692 (1929) (dicta); Berardi, 629 F.2d at 728; Mulligan, 573 F.2d at 779. Materiality is demonstrated if the question posed is such that a truthful response could potentially aid the inquiry or a false answer hinder it. Berardi, 629 F.2d at 728. Because materiality is a question of law, an appellate court may substitute its judgment for that of the lower court on the issue of whether the materiality element has been met. See Berardi, 629 F.2d at 728-29 (holding that the district court erred in finding false declaration immaterial). Because we disagree with the district court’s holding that Kamiyama’s state ments “technically” were" }, { "docid": "22815960", "title": "", "text": "534, 66 L.Ed.2d 293 (1980); see United States v. Mulligan, 573 F.2d 775, 779 (2d Cir.), cert. denied, 439 U.S. 827, 99 S.Ct. 99, 58 L.Ed.2d 120 (1978). Whether or not a false declaration is material to a grand jury investigation is a question of law that must be determined by the court, not the jury. Sinclair v. United States, 279 U.S. 263, 298-99, 49 S.Ct. 268, 273, 274, 73 L.Ed. 692 (1929) (dicta); Berardi, 629 F.2d at 728; Mulligan, 573 F.2d at 779. Materiality is demonstrated if the question posed is such that a truthful response could potentially aid the inquiry or a false answer hinder it. Berardi, 629 F.2d at 728. Because materiality is a question of law, an appellate court may substitute its judgment for that of the lower court on the issue of whether the materiality element has been met. See Berardi, 629 F.2d at 728-29 (holding that the district court erred in finding false declaration immaterial). Because we disagree with the district court’s holding that Kamiyama’s state ments “technically” were not material when made to the substitute grand jury, we need not reach or decide the numerous questions regarding whether the substitute grand jury was conducting an ancillary proceeding. The district court’s finding that Kamiyama’s statements were immaterial to the substitute grand jury is at odds with the only evidence in the record on this point. There is uncontradicted, direct testimony in the record by Assistant United States Attorney Martin Flumenbaum that both the Grand Jury and the substitute grand jury were investigating Moon for possible tax violations. For example, Flumenbaum testified that the substitute grand jury was “charged with investigating the same matters that [the Grand Jury] was doing.” This testimony was supported by affidavit evidence to the effect that: the Grand Jury approved in advance the procedure by which Kamiyama testified before the substitute grand jury, which was advised as to the substance of the on-going investigation of Moon and informed of the context in which Kamiyama was testifying; on two occasions the substitute grand jury heard testimony from another witness in this" }, { "docid": "14260279", "title": "", "text": "whether Moon and Kamiyama had violated federal law. In particular, the grand jury was interested in information concerning the defendants’ role, knowledge, and involvement in the Chase accounts, in Tong II Enterprises, and in the preparation of Moon’s tax returns. See Indictment ¶¶26, 30. It seems clear, therefore, that these inquiries cannot be deemed immaterial to the grand jury’s investigation. Kamiyama’s argument that the grand jury’s investigation could not have been hindered because these particular facts were not in dispute is specious. When Kamiyama testified that Moon never signed documents relating to Tong II and that Moon wrote only his signature on the checks, the grand jury was entitled to believe his testimony. If they did so and if his statements were false, “the natural effect would have been to impede the grand jury’s investigation.” United States v. Carson, 464 F.2d 424, 436 (2d Cir.), cert. denied, 409 U.S. 949, 93 S.Ct. 268, 34 L.Ed.2d 219 (1972). Kamiyama’s second theory is not supported by the authorities. That the grand jury has evidence contradicting the witness’s testimony does not render that testimony immaterial. In United States v. Carson, supra, for example, the defendant was convicted of perjury as a result of his statement before the grand jury that he had never met particular individuals. Reasoning that other testimony heard by the grand jury was irrelevant to a determination of materiality, the Second Circuit held that the testimony was material despite the grand jury’s possession of tape recordings that clearly showed that the defendant had met these people. Id. at 436; accord, United States v. Williams, 552 F.2d 226, 230 (8th Cir. 1977); United States v. Phillips, supra, 540 F.2d at 328; United States v. Lee, 509 F.2d 645, 646 (2d Cir.) (per curiam), cert. denied, 422 U.S. 1044, 95 S.Ct. 2645, 45 L.Ed.2d 696 (1975). B. Counts Twelve and Thirteen The second aspect of Kamiyama’s challenge to the perjury counts of the indictment concerns counts twelve and thirteen. Count twelve alleges that Kamiyama made the following false declarations. (The allegedly false declarations are underlined.) Q. Let me show what has been" }, { "docid": "14260293", "title": "", "text": "other materiality arguments concerning counts nine, ten, twelve, and thirteen. These claims are considered in pt. Ill infra. . In this case, moreover, the indicting grand jury had ample opportunity to observe the defendant’s demeanor over the course of his day and a half of testimony before it. . Kamiyama argues that if the substituting grand jury was ancillary to the indicting grand jury, then the indictment is technically deficient because it charges Kamiyama with perjury “before” the grand jury rather than “in a proceeding ancillary to” the grand jury. We see little to this argument. The fact that a grand jury is acting ancillary to another does not make it any the less a grand jury proceeding. A grand jury is still a grand jury. . The materiality of the alleged perjury is a question of law to be resolved by the Court. United States v. Berardi, supra, 629 F.2d at 728. . None of the cases cited by Kamiyama to support his theory involved grand juries. See United States v. Crawford, 395 F.Supp. 800 (W.D.Pa.1975) (preliminary hearing before a magistrate); United States v. Provinzano, 333 F.Supp. 255 (E.D.Wis.1971) (I.R.S. administrative investigation); United States v. Cross, 170 F.Supp. 303 (D.D.C.1959) (Congressional committee); United States v. Icardi, 140 F.Supp. 383 (D.D.C.1956) (same)." }, { "docid": "14260292", "title": "", "text": "the misstatement in DiVarco did not concern the “Wages, salaries, tips, and other employee compensation” line on the income tax return is of no importance. . Some of the allegations of misconduct have been withdrawn. See note 3 supra. . The defendant cites United States v. Lawson, 502 F.Supp. 158, 172 (D.Md.1980); United States v. Provenzano, 440 F.Supp. 561 (S.D.N.Y.1977); and United States v. Phillips Petroleum Co., 435 F.Supp. 610 (N.D.Okl.1977). . The Government states that Kamiyama testified before the substituting grand jury on July 16, 1981 because the indicting grand jury had planned a vacation for the week of July 13, 1981. The Government also explains why Kamiyama testified before separate grand juries on July 21, 1981. At the conclusion of the morning session, which was conducted before the substituting grand jury, the foreperson directed Kamiyama to return the next week. Kamiyama requested to complete his testimony that day. To accomodate him, the Government managed to obtain time before the indicting grand jury, which had just returned from vacation. . Kamiyama also makes several other materiality arguments concerning counts nine, ten, twelve, and thirteen. These claims are considered in pt. Ill infra. . In this case, moreover, the indicting grand jury had ample opportunity to observe the defendant’s demeanor over the course of his day and a half of testimony before it. . Kamiyama argues that if the substituting grand jury was ancillary to the indicting grand jury, then the indictment is technically deficient because it charges Kamiyama with perjury “before” the grand jury rather than “in a proceeding ancillary to” the grand jury. We see little to this argument. The fact that a grand jury is acting ancillary to another does not make it any the less a grand jury proceeding. A grand jury is still a grand jury. . The materiality of the alleged perjury is a question of law to be resolved by the Court. United States v. Berardi, supra, 629 F.2d at 728. . None of the cases cited by Kamiyama to support his theory involved grand juries. See United States v. Crawford, 395 F.Supp." }, { "docid": "22815964", "title": "", "text": "review the accuracy of the challenged language. Before the trial court ruled on Kamiyama’s motion, a superseding indictment was returned which omitted two of the allegedly inaccurate specifications in Count Ten. The trial court ultimately appointed an interpreter to translate the tape recording of those portions of Kamiyama’s grand jury testimony included in the indictment. Judge Goettel also requested defense counsel to “specify the particular portions of the translation that [were] in dispute.” This was done at a pretrial hearing held on March 5, 1982. With respect to the objections to Counts Ten and Eleven, the district court found no significant difference between Kamiyama’s testimony as set out in the superseding indictment and the court-appointed translator’s interpretation of the recordings of that testimony. It did agree with Kamiyama’s claims that certain Count Twelve testimony had been translated inaccurately and it dismissed all of that Count’s specifications objected to by Kamiyama. With regard to Count Thirteen, the court found that the appointed translator’s version of what Kamiyama had said agreed with the language quoted in the indictment, and counsel for Kamiyama accepted those translations as being accurate. The government later obtained a superseding Count Twelve indictment which omitted the previously objected to language. At trial Kamiyama did not argue that the translation of the testimony set forth in the remaining false declaration counts was inaccurate. After the close of the evidence, the district court granted Kamiyama’s request to make the court translator’s translation an exhibit which the jury could see, if requested. Although the jury was so informed, apparently it did not request the exhibit. On appeal Kamiyama now asserts that “all specifications” in the perjury counts were erroneously translated and fatally ambiguous. Close examination of appellant’s contentions reveals that some of the points raised actually relate to sufficiency of the evidence as to falsity, not to accuracy of translation. In any event we address appellant’s “translations” contentions one count at a time. With respect to Count Nine, appellant asserts that while he was indicted for answering in the negative the question “did” Reverend Moon sign any documents dealing with stock," }, { "docid": "14260265", "title": "", "text": "had a witness who testified before a separate grand jury testified in person. Given the length of the investigation and the number of witnesses who appeared before the grand jury, one would expect that more than one grand jury would be used. The Government states in its opposing affidavit that approximately ninety-five percent of the witnesses appeared before the grand jury that voted the indictment. Moreover, the Government states that the testimony of each witness who appeared before a separate grand jury was marked as an exhibit and read in its entirety before the grand jury that voted the indictment. In addition, it states that the grand jury was instructed regarding its right to hear first hand testimony. In short, Moon has made no showing to justify dismissal or disclosure of the grand jury minutes. Kamiyama bases his claims regarding the use of separate grand juries on different grounds. Although his motion raises somewhat novel issues, it too must be denied. Kamiyama initially appeared before the grand jury on March 31, 1981 and invoked his Fifth Amendment privilege after learning that he would not be given immunity. This appearance was before the June 1980 Additional Grand Jury, the grand jury that returned the indictment (indicting grand jury). In June 1981, Kamiyama filed a nine page affidavit in support of Moon’s submission to the grand jury by which he sought to avoid indictment. He then testified before the grand jury on the mornings and afternoons of July 9, July 16, and July 21, 1981. His testimony on the morning and afternoon of July 9 and the afternoon of July 21 was before the indicting grand jury. His testimony on the morning and afternoon of July 16 and the morning of July 21 was before the July 1981 Regular Grand Jury (substituting grand jury). The Government states that Kamiyama’s testimony before the substituting grand jury was read in its entirety to the indicting grand jury prior to the issuance of the indictment. Kamiyama raises two claims regarding the use of separate grand juries. He argues that this procedure violated his due process" }, { "docid": "22815976", "title": "", "text": "for affirming the district court’s conclusion that Kamiyama’s substitute grand jury statements were material. . Citing United States v. Estepa, 471 F.2d 1132, 1137 (2d Cir.1972), Kamiyama also contends that the prosecution abused the grand jury process by not having it reevaluate all of the perjury counts in light of the court-appointed translator’s findings. This claim is meritless; even Kamiyama concedes that the translator’s findings generally accorded with the allegedly perjurious language set forth in the indictment. Where there were material variances, for example in Count Twelve, the government did resubmit its case to the grand jury. . Kamiyama’s final contentions regarding his perjury convictions are: (1) that the government breached some obligation on its part to insure at the grand jury level that Kamiyama’s erroneous answers were in fact intentional lies rather than mere negligent mistakes; and (2) that his false answers underlying Counts Nine and Ten were immaterial because the grand jury already had in its possession information contradicting his testimony. The district court rejected these arguments in its published decision see 532 F.Supp. at 1371-72, 1374, and we agree with that rejection for the reasons stated in the district court’s opinion. OAKES, Circuit Judge (dissenting): While fully concurring in the other portions of Judge Cardamone’s lucid and careful opinion, I am required to dissent to that portion of it relating to the trial judge’s charge on the law of trusts. Majority op. IIIA. Contrary to the Government’s brief and the majority’s view that “Moon did not raise until late in the trial” the claim that he was holding the assets in question in trust, this was his position in the pretrial motion to dismiss as well as during argument on the midtrial motion for a judgment of acquittal. The trial judge quite properly acknowledged his obligation to charge on the law of trusts and did so no fewer than three times in the space of six pages of transcript. The Government’s assertion that defendants made “no claim ... that [they] wanted, much less were entitled to, any of the specific instructions on the law of trusts which" }, { "docid": "22815962", "title": "", "text": "case; and the substitute grand jury actively participated in the proceedings by asking numerous questions relating to the handling of Moon’s tax and business affairs and by requesting the production of documentary evidence. If the substitute grand jury cannot be said to have been investigating Moon’s tax affairs when it was asking Kamiyama about those affairs, it is difficult to perceive exactly what it was doing. Since both grand juries were investigating Moon’s tax affairs, it seems somewhat illogical to say that Kamiyama’s answers were immaterial when given to the substitute grand jury, but material, as the district court found they were, when repeated verbatim to the indicting Grand Jury. Our examination of the questions and responses in issue further strengthens our conviction that they were material to both grand juries’ inquiries. The questions and answers set forth in Counts Eleven, Twelve, Thirteen and No. 194 do not deal simply with tangential matters of no relevance to the instant prosecution. Instead, they are concerned with the sources of Moon’s Chase accounts funds, the Family Fund Ledger, the acquisition of the Tong II stock, and the manner in which Moon conducted his business affairs. These matters were at the very heart of both grand juries’ inquiries and related to the critical issues at trial. As a matter of common sense, we do not believe there is any basis to label them immaterial. C. Claimed Translation Inaccuracies Kamiyama further contends with respect to his perjury convictions that he was impermissibly indicted and convicted for statements he did not give. Because his principal language was Japanese, he addressed the grand juries through an interpreter. At the request of counsel tape recordings were made of Kamiyama’s grand jury statements. After being indicted for perjury in October 1981, Kamiyama received copies of the tape recordings of his testimony. After they were reviewed by defense counsel Kamiyama moved to dismiss certain specifications contained in Counts Ten through Thirteen on the ground that the allegedly perjurious language did not accurately reflect what he had actually said to the grand jury. He also requested that a court-appointed translator" }, { "docid": "14260278", "title": "", "text": "not substantially identical, theories to support his argument that these questions and answers were immaterial to the grand jury’s inquiry. First, he argues that the grand jury’s investigation could not have been helped or hindered by his response to these questions, see United States v. Berardi, supra, 629 F.2d at 728, because there was no real dispute as to whether Moon signed documents relating to Tong II or whether Moon ever wrote more than his signature on the checks. (Prior to Kamiyama’s testimony, the grand jury received copies of checks drawn on the Chase accounts and a copy of the Tong II stock subscription offer bearing Moon’s name and signature. Additionally, a handwriting expert concluded that the handwriting on certain checks was that of Moon.) Second, he argues that his answers were not material because the questions posed to him sought information already possessed by the grand jury. Neither argument is sufficient to dismiss these counts of the indictment. As the Government notes in its papers, the grand jury had a broad mandate to determine whether Moon and Kamiyama had violated federal law. In particular, the grand jury was interested in information concerning the defendants’ role, knowledge, and involvement in the Chase accounts, in Tong II Enterprises, and in the preparation of Moon’s tax returns. See Indictment ¶¶26, 30. It seems clear, therefore, that these inquiries cannot be deemed immaterial to the grand jury’s investigation. Kamiyama’s argument that the grand jury’s investigation could not have been hindered because these particular facts were not in dispute is specious. When Kamiyama testified that Moon never signed documents relating to Tong II and that Moon wrote only his signature on the checks, the grand jury was entitled to believe his testimony. If they did so and if his statements were false, “the natural effect would have been to impede the grand jury’s investigation.” United States v. Carson, 464 F.2d 424, 436 (2d Cir.), cert. denied, 409 U.S. 949, 93 S.Ct. 268, 34 L.Ed.2d 219 (1972). Kamiyama’s second theory is not supported by the authorities. That the grand jury has evidence contradicting the witness’s" }, { "docid": "14260291", "title": "", "text": "appears to be claiming that the Church is the true source of income in that it was the beneficial owner of the Chase accounts. The Court, however, is not now in a position to state that the Unification Church was the beneficial owner and the true source of the income reported on line 9. This is a factual issue that is properly resolved at trial, not on a motion to dismiss. . Some courts have deemed matters material if they are necessary to a correct estimate and computation of the taxpayer’s income tax. See United States v. Warden, 545 F.2d 32, 37 (7th Cir. 1976). There does not, however appear to be a “right” or a “wrong\" test. For example, both tests have been used in the same circuit, compare United States v. Warden, supra, with United States v. DiVarco, supra, and one circuit has implied that either test is acceptable. See United States v. Romanow, supra, 509 F.2d at 28. It appears that the factual situation determines the test to be used. . That the misstatement in DiVarco did not concern the “Wages, salaries, tips, and other employee compensation” line on the income tax return is of no importance. . Some of the allegations of misconduct have been withdrawn. See note 3 supra. . The defendant cites United States v. Lawson, 502 F.Supp. 158, 172 (D.Md.1980); United States v. Provenzano, 440 F.Supp. 561 (S.D.N.Y.1977); and United States v. Phillips Petroleum Co., 435 F.Supp. 610 (N.D.Okl.1977). . The Government states that Kamiyama testified before the substituting grand jury on July 16, 1981 because the indicting grand jury had planned a vacation for the week of July 13, 1981. The Government also explains why Kamiyama testified before separate grand juries on July 21, 1981. At the conclusion of the morning session, which was conducted before the substituting grand jury, the foreperson directed Kamiyama to return the next week. Kamiyama requested to complete his testimony that day. To accomodate him, the Government managed to obtain time before the indicting grand jury, which had just returned from vacation. . Kamiyama also makes several" } ]

[ { "docid": "9630608", "title": "", "text": "agency of the Government. Similarly, our problem differs markedly from J. I. Case v. Borak, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964), and comparable decisions in which a private cause of action was inferred from legislation prohibiting certain conduct. The claimant in each of those cases had been or could be financially injured by the unlawful conduct, and the court also thought that the statute on which he relied was designed to protect his particular group, as distinguished from the general public. Borak would only be in point if it had permitted a plaintiff owning no stock in the corporation to sue the company for false and misleading proxy statements because, as a matter of personal conviction, he strongly disapproved of tainted proxy solicitations and, as a matter of public policy, believed that misleading proxy solicitations are a general menace to the free enterprise system. Of course that was not Borak (or any of the other cases in the same line). Instead of a private claim for relief for a specific private injury, as in those decisions, what we have here is an action by parties claiming to be surrogates for the public over and above the normal and official representative of the public interest. Taking the 1899 Act as it now stands, we have no difficulty in joining the other courts which have considered the question in holding that a private citizen or group, no matter how competent or well-intentioned, cannot sue on behalf of the public to enforce by injunction the refuse-discharge provisions of § 407. If a change is to be made, it should be by Congress which has had before it a number of bills to authorize such actions (see Guthrie v. Alabama By-Products Co., supra, 328 F.Supp. at 1148-1149) and can decide if, and to what extent, citizens’ suits should be authorized. Affirmed. . Durning v. I.T.T. Rayonier, Inc., 325 F.Supp. 446 (W.D.Wash.1970); Bass Angler Sportsman Soc. v. United States Steel Corp., 324 F.Supp. 412 (N.D.M.D., and S.D., Ala.), aff’d per curiam on the opinion below, 447 F.2d 1304 (5th Cir. 1971);" } ]

[ { "docid": "972731", "title": "", "text": "Court reaffirmed its decision in Borak when it held that the criminal sanction of section 15 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 409, was not an exclusive remedy under the statute. The Court articulated a set of three criteria for determining when an implied remedy should be found. First, the expressly pro vided criminal sanctions must be inadequate to ensure the full effectiveness of the statute. Second, the interest of the plaintiff must be within the protection of the statute. Finally, the injury must be of the type that the statute was intended to forestall. These three criteria, however, were not long-lived as the sole judicial test for implying remedies. In National Railroad Passenger Corp. v. National Association of Railroad Passengers, 414 U.S. 453, 94 S.Ct. 690, 38 L.Ed.2d 646 (1974) (Amtrak), there was a return to a more restrictive attitude about implying civil remedies. The Amtrak Act, 45 U.S.C. § 301 et seq. (1970), expressly provided that only the Attorney General had the right to institute a civil action except in cases involving labor agreements. The Court held that the express provision of the remedy to the Attorney General precluded the inference of a civil action in favor of the plaintiffs absent any clear indication in the legislative history that a right of action should be inferred. The Court also stated that the legislative history evidenced an intent to preclude civil remedies, and that an implied remedy would conflict with the Act’s policy of streamlining the processes for eliminating unproductive rail routes in order to save the overall passenger system. The only other case of significance subsequent to Amtrak and prior to Cort was Securities Investor Protection Corp. v. Barbour, 421 U.S. 412, 95 S.Ct. 1733, 44 L.Ed.2d 263 (1975). This controversy involved whether a right of action by a private party was impliedly created by the Securities Investor Protection Act of 1970 (SIPA), 15 U.S.C. '§ 78aaa et seq. The Court’s opinion followed the reasoning of Amtrak and denied implication mainly because there was a lack of extrinsic evidence indicating that Congress intended" }, { "docid": "22708077", "title": "", "text": "precedents in the area of implied statutory rights of action, and concluded that “Congress intended to permit the federal courts to entertain a private cause of action implied from the terms of the [FWPCA], preserved by the savings clause of the Act, on behalf of individuals or groups of individuals who have been or will be injured by pollution in violation of its terms.” 616, F. 2d, at 1230-1231. The court then applied this same analysis to the MPRSA, concluding again that the District Court had erred in dismissing respondents’ claims under this Act. Although the court was not explicit on this question, it apparently concluded that suits for damages, as well as for injunctive relief, could be brought under the FWPCA and the MPRSA. With respect to the federal common-law nuisance claims, the Court of Appeals rejected the District Court’s conclusion that private parties may not bring such claims. It also held, applying common-law principles, that respondents “alleged sufficient individual damage to permit them to recover damages for this essentially public nuisance.” Id., at 1234. It thus went considerably beyond Illinois v. Milwaukee, 406 U. S. 91 (1972), which involved purely prospective relief sought by a state plaintiff. Petitions for a writ of certiorari raising a variety of arguments were filed in this Court by a group of New Jersey sewerage authorities (No. 79-1711), by the Joint Meeting of Essex and Union Counties in New Jersey (No. 79-1754), by the City and Mayor of New York (No. 79-1760), and by all of the federal defendants named in this suit (No. 80-12). We granted these petitions, limiting review to three questions: (i) whether FWPCA and MPRSA imply a private right of action independent of their citizen-suit provisions, (ii) whether all federal common-law nuisance actions concerning ocean pollution now are pre-empted by the legislative scheme contained in the FWPCA and the MPRSA, and (iii) if not, whether a private citizen has standing to sue for damages under the federal common law of nuisance. We hold that there is no implied right of action under these statutes and that the federal common" }, { "docid": "13062894", "title": "", "text": "We turn first to plaintiffs’ claims which are based on the trust language of sections 4 and 5 of the Admission Act. Section 5 expressly provides that the improper use of Hawaiian home lands “shall constitute a breach of trust for which suit may be brought by the United States.” The Act is silent, however, on the question of whether suit may be brought by a private individual to enforce its terms. Thus, the threshold question is squarely presented: Does the Admission Act create an implied cause of action by which a private party may enforce the duties and obligations imposed by the Act? The Supreme Court has recently decided a series of cases which guide us to the proper resolution of this question. A In Amtrak, supra, 414 U.S. 453, 94 S.Ct. 690, 38 L.Ed.2d 646, an association of railroad passengers challenged the discontinuance of certain passenger lines as violative of the Rail Passenger Service Act. In reaching its conclusion that the Act does not imply a private cause of action of this type, the Court focused principally on the fact that the Act specifically permits enforcement suits by the Attorney General or, in cases involving a labor agreement, by employees. It was argued that the authorization of the public cause of action and the very narrow private right of action “should not be read to preclude other private causes of action for the enforcement of obligations imposed by the Act.” Id. at 457, 94 S.Ct. at 693. Since the action was brought by the intended beneficiaries of the Act, it was contended that the Court should therefore imply a private cause of action in their favor. The Court disagreed, reasoning that when legislation expressly provides a particular remedy or remedies, courts should not expand the coverage of the statute to subsume other remedies. “When a statute limits a thing to be done in a particular mode, it includes the negative of any other mode.” This principle of statutory construction reflects an ancient maxim — expressio unius est exclusio alterius. Since the Act creates a public cause of action" }, { "docid": "18611179", "title": "", "text": "because a non-exclusive federal cause of action exists. See, e. g., Aircraft Crash Litigation Hearings before Subcommittee on Improvements in Judicial Machinery on S. 3305 and S. 3306, 90th Congress, Second Session (1968), at 64, 69. Congress’s failure to adopt a specific proposal authorizing private rights must be taken as evidence of an intent to preclude such rights. National R. R. Passenger Corp. v. National Ass’n. of R. R. Passengers (Amtrak), 414 U.S. 453, 461, 94 S.Ct. 690, 694, 38 L.Ed.2d 646 (1974). The third factor, whether a private remedy is “consistent with the underlying purposes of the legislative scheme”, requires an examination of the adequacy of existing remedies to serve the federal interest. Indeed, unless necessary to fulfill Congress’s purpose in enacting the legislation, no implied cause of action should be found. Piper v. Chris-Craft Indus., Inc., 430 U.S. 1, 41, 97 S.Ct. 926, 949, 51 L.Ed.2d 124 (1977); Santa Fe Indus., Inc. v. Green, 430 U.S. 462, 477, 97 S.Ct. 1292, 1202, 51 L.Ed.2d 480 (1977). This court agrees with the reasoning in Moungey v. Brandt, 250 F.Supp. 445, 451 (W.D.Wis.1966), cited with approval in Yelinek v. Worley, 284 F.Supp. 679, 681 (E.D.Va.1968): The national interest in safety in civil aeronautics is adequately protected by the network of statutory and administrative procedures and sanctions expressly created by the Federal Aviation Program .... No persuasive reason suggests itself why the efficacy of the Program need be fortified by the creation, by implication, of a civil remedy in the federal court. The fourth factor, whether the cause of action is one traditionally relegated to state law, also here mitigates against implying a cause of action. While aviation is strongly regulated by the federal government, § 1106 of the Act explicitly preserves state remedies. Negligence, breach of warranty and breach of contract are causes of action recognized in the courts of Virginia. No additional remedy appears to be called for. Before Cort v. Ash was decided, this court in Yelinek v. Worley, supra, held there was no private federal cause of action for damages or personal injury under the Federal Aviation" }, { "docid": "21688449", "title": "", "text": "does not allow an individual to maintain a qui tarn action prior to conviction or to sue for an injunction on behalf of the general public. But this does not address the issue of whether a private individual may bring a civil action to redress or prevent a specific injury to him caused by conduct that violates the statutes. Indeed, the Court in Connecticut Action Now expressly reserved opinion on this question. 457 F.2d at 89. The relevant enforcement provisions in the Rivers and Harbors Act are 33 U.S.C. §§ 406 and 413. Section 406 provides that whoever violates sections 401 and 403 shall be guilty of a misdemean- or and further provides that injunctive actions may be maintained by the Attorney General for the purpose of removal of structures erected in violation of the statute. Section 413 establishes a duty upon the Attorney General “to vigorously prosecute all offenders,” stating that “[t]he Department of Justice shall conduct the legal proceedings necessary to enforce the provisions of sections 401 [and] 403.” It is this last phrase, in particular, that has been interpreted to place all enforcement responsibilities in the hands of federal authorities. The courts that have considered the issue of private- causes of action under the Rivers and Harbors Act have expressed divergent views. The Court of Appeals for the Third Circuit has held that the enforcement scheme is exclusive, Red Star Towing and Transportation Co. v. Department of Transportation, 423 F.2d 104 (1970), while in the Ninth Circuit, it has been held that the Rivers and Harbors Act creates private causes of action, Alameda Conservation Assoc. v. California, 437 F.2d 1087 (1971), as interpreted by Sierra Club v. Leslie Salt Co., 354 F.Supp. 1099 (N.D.Cal.1972). Although public enforcement actions are prohibited in the Fifth Circuit, Bass Anglers Sportsman Soc. v. United States Steel Corp., 324 F.Supp. 412 (N.D., Md. and S.D.Ala.), aff’d. per curiam on the opinion below, 447 F.2d 1304 (5th Cir. 1971), the right of private individuals to redress specific injuries does not appear to be questioned. Neches Canal Co. v. Miller & Vidor Co., 24" }, { "docid": "3367667", "title": "", "text": "law nuisance claim. In so holding, the court relied on holdings by other federal district courts that only governmental agencies can sue for relief from a public nuisance. We hold that the common law nuisance remedy recognized in Illinois v. City of Milwaukee is available in suits by private parties. The Court stated explicitly in Illinois that although both parties to that suit were governmental, “it is not only the character of the parties that requires us to apply federal law.” Illinois v. City of Milwaukee, 406 U.S. at 105 n.6, 92 S.Ct. at 1393 n.6. Rather, the Court noted that “where there is an overriding federal interest in the need for a uniform rule of decision . we have fashioned federal common law.” Id. In the instant case, plaintiffs are suing for damages to interstate ambient water, an issue as to which there is a clear and overriding federal interest in uniformity. There is no question but that the interstate pollution here alleged is a problem calling for the application of a uniform federal standard. Relegating these litigants to possibly conflicting New York and New Jersey nuisance standards would ignore the clear intent of the Supreme Court to federalize those standards and would undermine that federal uniformity. These plaintiffs have sufficiently alleged pollution of interstate waters. In order to give full effect to the federal common law of nuisance recognized in Illinois, private parties should be permitted, and indeed encouraged, to participate in the abatement of such nuisances. Courts have already extended the Illinois remedy to the federal government and to municipalities, and one district court has applied it on behalf of private litigants. The effectuation of the purposes of the Illinois v. City of Milwaukee remedy and the fulfillment of the Supreme Court’s intent in creating that remedy lead us to conclude that it is available to these private litigants who have been injured by the effects of the polluting activities of these defendants. While Illinois v. City of Milwaukee did not address this specific issue, we are convinced that the Court would apply the mode of analysis" }, { "docid": "3325983", "title": "", "text": "reliance on the Supreme Court’s recent decision in Cannon v. University of Chicago, supra, is misplaced. In that case, the court found an implied private right of action under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681. Title IX prohibits discrimination on the basis of sex in educational programs receiving federal financial assistance. The statute provides a procedure whereby federal funding of schools that violate Title IX may be terminated; it does not expressly authorize private damage actions. Nevertheless, applying the four-part Cort v. Ash test, the Court held that Title IX creates an implied private right of action. Significantly, the Court found that Title IX was explicitly patterned after Title VI of the Civil Rights Act of 1964, which, as Congress was aware, had been construed to create a private remedy for violations. The Court said, “the history of Title IX rather plainly indicates that Congress intended to create such a [private] remedy.” 441 U.S. at 694, 99 S.Ct. at 1956. By contrast, the legislative history of OSHA § 11(c) suggests that Congress intended not to allow private suits to redress retaliatory discrimination. The present case is like TAMA v. Lewis, supra: “what evidence of intent exists in this case, circumstantial though it be, weighs against the implication of a private right of action.” - U.S. at -, 100 S.Ct. at 247. See also Touche Ross & Co. v. Redington, supra, 442 U.S. at 573-577, 99 S.Ct. at 2488-89; Amtrak, supra, 414 U.S. at 458-61, 94 S.Ct. at 693-94; Ryan v. Ohio Edison Co., 611 F.2d 1170 (6th Cir. 1979) (holding, on the ground that Congress intended to prohibit only harassing lawsuits rather than reaffirmation of debts, that debtors have no implied right of action under the Bankruptcy Act to prevent creditors from using informal methods to collect discharged debts); Russell v. Bartley, 494 F.2d 334, 335 (6th Cir. 1974) (declining to find a private right of action on behalf of employees injured by OSHA safety violations because § 4 of the Act evinces a contrary legislative intent); Jeter v. St. Regis Paper Co., 507" }, { "docid": "15745735", "title": "", "text": "right of actions had been around for some sixty or more years. Until that decision, “no uniform set of standards had been devised by federal courts for determining whether to imply private actions for violation of a federal statute that grants no express remedy.” It did this by adopting “a strict approach” to implication generally. It gave effect to this approach by laying down express, clear-cut and precise requirements for an implied right of action under a federal statute. Such requirements are: “In determining whether a private remedy is implicit in a statute not expressly providing one, several factors are relevant. First, is the plaintiff ‘one of the class for whose especial benefit the statute was enacted,’ Texas & Pacific R. Co. v. Rigsby, 241 U.S. 33, 39, 36 S.Ct. 482, 484, 60 L.Ed. 874 (1916) (emphasis supplied) — that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? See, e. g., National Railroad Passenger Corp. v. National Assn, of Railroad Passengers, 414 U.S. 453, 458, 460, 94 S.Ct. 690, 693, 694, 38 L.Ed.2d 646 (1974) (Amtrak). Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? See, e. g., Amtrak, supra; Securities Investor Protection Corp. v. Barbour, 421 U.S. 412, 423, 95 S.Ct. 1733, 1740, 44 L.Ed.2d 263 (1975); Calhoon v. Harvey, 379 U.S. 134, 85 S.Ct. 292, 13 L.Ed.2d 190 (1964). And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law? See Wheeldin v. Wheeler, 373 U.S. 647, 652, 83 S.Ct. 1441, 1445, 10 L.Ed.2d 605 (1963); cf. J. I. Case Co. v. Borak, 377 U.S. 426, 434, 84 S.Ct. 1556, 1560, 12 L.Ed.2d 423 (1964); Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 394-395, 91 S.Ct. 1999, 2003-2004, 29 L.Ed.2d 559," }, { "docid": "23041294", "title": "", "text": "to one case, Deaktor v. L.D. Schreiber & Co., 479 F.2d 529 (7th Cir.), revd. on other grounds sub nom. Chicago Mercantile Exchange v. Deaktor, 414 U.S. 113, 94 S.Ct. 466, 38 L.Ed.2d 344 (1973), decided less than a year before the enactment of the 1974 amendments, as support for the private cause of action asserted here. There a trader brought suit against an exchange for a violation of § 5a(8) and § 9(b), and the court, relying on Goodman, found that § 9(b) was intended to protect the interests of the plaintiff traders and accordingly implied a cause of action under it, though not under § 5a(8). Although the majority contends that the Supreme Court’s reversal of Deaktor can be read as support for the lower court’s implication of a private right of action, that argument is without merit since the Court expressly declined to decide the issue and held that plaintiffs must proceed through the CFTC, not through the courts. See 414 U.S. at 115, 94 S.Ct. at 467. Where the Supreme Court has declined to reach an issue, it is serious error to parse the Court’s opinion for some hidden indication that the Court actually decided the issue after all. The majority’s strained interpretation of Deaktor is illusory. In speculating as to what Congress must have “perceived” about the state of the law relating to implied rights when it overhauled the Act in 1974, one must take into account as against Deaktor, which was not finally disposed of by the Supreme Court until December 3, 1973, see 414 U.S. 113, 94 S.Ct. 466, 38 L.Ed.2d 344, the Court’s decision in Amtrak, supra, 414 U.S. 453, 94 S.Ct. 690, 38 L.Ed.2d 646, decided on January 9, 1974. There the Court rejected a claim of an implied private right under § 307(a) of the Amtrak Act, relying on Congress’ rejection of an express remedy and its express authorization of other remedies, stating that “when legislation expressly provides a particular remedy or remedies, courts should not expand the coverage of the statute to subsume other remedies,” 414 U.S. at 458," }, { "docid": "22396083", "title": "", "text": "respondents’ assertion that Wheeling Bridge stands for the broad proposition that if Congress legislated in this area, any prohibition of obstructions would automatically support a private right of action. This position is extrapolated from discussions of the law of nuisance in both Wheeling Bridge, supra, at 604-607 and the subsequent Gilman v. Philadelphia, 3 Wall. 713, 722-724 (1866). In both cases the Court merely expressed agreement with the proposition that a court of equity could enjoin a public nuisance in a case brought by a private person who had sustained specific injury. Whether a congressional enactment prohibiting obstructions would automatically give rise to a private right of action was not an issue raised or discussed in either case. The most that may be legitimately concluded as to legislative understanding of the law preceding the enactment of this statute is that Congress was aware that the Supreme Court had held that there was no federal law which empowered anyone to contest obstructions to navigable rivers. See 21 Cong. Rec. 8604r-8607 (1890). We cannot assume from legislative silence on private rights of action, that Congress anticipated that a general regulatory prohibition of obstructions to navigable streams would provide an automatic basis for a private remedy in the nature of common-law nuisance. The Rivers and Harbors Appropriation Act of 1899 was no doubt in part a legislative response to the Willamette decision. But there is nothing to suggest that that response was intended to do anything more than empower the Federal Government to respond to obstructions on navigable rivers. The broad view supported by respondents is without support. Justice Stevens, concurring. In 1888 this Court reversed a decree enjoining the construction of a bridge over a navigable river. Willamette Iron Bridge Co. v. Hatch, 125 U. S. 1. The Court’s opinion in that case did not question the right of the private parties to seek relief in a federal court; rather, the Court held that no federal rule of law prohibited the obstruction of the navigable water way. Congress responded to the Willamette case in the Rivers and Harbors Act of 1890 by" }, { "docid": "684812", "title": "", "text": "News, pp. 6238 et seq. . See footnote 47. . See e. g.: Section 505 of the Federal Water Pollution Control Act, 33 U.S.C. § 1365; Section 11 of the Endangered Species Act, 16 U.S.C. § 1540(g)(1); Section 7002 of the Resource Conservation and Recovery Act, 42 U.S.C. § 6972; and Section 304 of the Clean Air Act, 42 U.S.C. § 7604. Recently the Supreme Court has stated: “When Congress intends private litigants to have a cause of action to support their statutory rights, the far better course is for it to specify as much when it creates those rights.” Cannon v. University of Chicago, - U.S. -, at p. -, 99 S.Ct. 1946 at p. 1967, 60 L.Ed.2d 560 (1979). Exceptions to Congress’ failure to specify a private cause of action are both “limited” and “typical.” Id. Here the language of Section 413 is indicative of legislative intent for public rather than private enforcement. . The Fourth Circuit may have implicitly recognized such a right by affirming three lower court decisions without discussion on this point, see: Rucker v. Willis, 358 F.Supp. 425 (E.D.N.C.1973) aff’d 484 F.2d 158 (1973); River v. Richmond Metropolitan Authority, 359 F.Supp. 611 (E.D.Va.1972) aff’d. 481 F.2d 1280 (1973); Lauritzen v. Cheasapeake Bay Bridge and Tunnel District, 259 F.Supp. 633 (E.D.Va.1966) aff’d 404 F.2d 1001 (1968). . But cf.: Neches Canals Co. v. Miller & Vidor Lumber Co., 24 F.2d 763 (C.A. 5, 1928) with Intercoastal Transportation, Inc. v. Decatur County, Georgia, 482 F.2d 361 fn. 14 (C.A. 5, 1973). . Cf. also: Alameda Conservation Association v. California, 437 F.2d 1087 (C.A. 9, 1971), cert. den. 402 U.S. 908, 91 S.Ct. 1380, 28 L.Ed.2d 649 (1971). . This provision states: “Each department, agency and instrumentality of the executive . . branches] of the Federal Government (1) having jurisdiction over any property or facility or (2) engaged in any activity resulting, or which may result, in the discharge of air pollutants, and each officer, agent or employee thereof, shall be subject to, and comply with, all . State, interstate, and local requirements, administrative authority, and process" }, { "docid": "22588837", "title": "", "text": "theory of recovery. As we noted in Dick Meyers Towing, “[r]ephrasing the claim as a public nuisance claim does not change its essen tial character.” Dick Meyers, 577 F.2d at 1025 n. 4. Thus we conclude that plaintiffs may not recover for pure economic losses under a public nuisance theory in maritime tort. -2- Plaintiffs’ arguments that the Rivers and Harbors Appropriation Act affords them an avenue of relief are foreclosed by Supreme Court decision. Plaintiffs suggest that both Section 10 of the Act, which prohibits the obstruction of navigable waters, and Section 13 of the Act, which prohibits the deposit of refuse into navigable waters, have been violated, and that such violations provide a basis for civil liability. In California v. Sierra Club, 451 U.S. 287, 101 S.Ct. 1775, 68 L.Ed.2d 101 (1981), the Court held that the Rivers and Harbors Appropriation Act did not authorize private actions to be brought for violation of its provisions. Accordingly, plaintiffs’ claims under the Rivers and Harbors Act may not be maintained. -3- Plaintiffs also urge that their economic losses are recoverable as state law claims in negligence, nuisance or under the Louisiana Environmental Affairs Act of 1980. Because established principles of general maritime law govern the issue of recovery in this case, we reject these state law theories. The claims all involve a collision on a navigable waterway of the United States and the resulting damages, and hence are within the admiralty and maritime jurisdiction of the federal courts. See, e.g., Foremost Insurance Co, v. Richardson, 457 U.S. 668, 102 S.Ct. 2654, 73 L.Ed.2d 300 (1982). Under the Admiralty Extension Act our jurisdiction extends to the claims for shoreside damages as well as to those directly involving the waterway. It is well-settled that the invocation of federal admiralty jurisdiction results in the application of federal admiralty law rather than state law. See, e.g., Kossick v. United Fruit Co., 365 U.S. 731, 81 S.Ct. 886, 6 L.Ed.2d 56 (1961); Freeport Sulphur Co. v. S/S Hermosa, 526 F.2d 300, 302 n. 2 (5th Cir.1976). While our maritime decisions are informed by common law" }, { "docid": "903695", "title": "", "text": "401 et seq., and the Bridgé Act of 1906, 33 U.S.C. § 491 et seq., which, inter alia, require federal consent for the construction of bridges over navigable waters and establish a variety of regulatory standards for the operation of such bridges. It is argued that by seeking and obtaining permission to operate in a sphere of authority subject to the power of the federal government, California has surrendered its immunity in submission to the United States. At the outset, it must be determined whether either of the federal acts cited by appellant creates a private right of action without which the state of California could neither be held liable to the appellant nor be said to have waived its Eleventh Amendment immunity to suit. Opinion among the circuits on this issue is divided. While the Fourth Circuit in Chesapeake Bay Bridge and Tunnel District v. Lauritzen, 404 F.2d 1001, 1003-1004 (1968) has held that the Rivers and Harbors Appropriations Act does create a private cause of action, the Third, Fifth, and Seventh Circuits have reached contrary results. Williamson Towing Co., Inc. v. State of Illinois, supra, 534 F.2d at 762; Intracoastal Transportation, Inc. v. Decatur County, Georgia, 482 F.2d 361, 366-367 (5th Cir. 1973); Red Star Towing & Transportation Co. v. Department of Transportation of New Jersey, 423 F.2d 104, 106 (3d Cir. 1970). The rule in this Circuit is somewhat unclear. In Alameda Conservation Association v. California, 437 F.2d 1087, 1094-1095 (9th Cir.), cert. denied, 402 U.S. 908, 91 S.Ct. 1380, 28 L.Ed.2d 649 (1971), this Court concluded that plaintiffs had standing to sue for an injunction restraining Leslie Salt Co. from damaging them as individuals by filling and obstructing portions of San Francisco Bay in violation of 33 U.S.C. §§ 401 — 406, the Rivers and Harbors Appropriations Act. Had the Court not impliedly recognized a private right of action under that act, it could not have reached the question of standing. Passenger Corp. v. Passengers Ass’n, 414 U.S. 453, 456, 94 S.Ct. 690, 38 L.Ed.2d 646 (1974). Thus, it seems reasonable to conclude that the appellant" }, { "docid": "19818652", "title": "", "text": "Further, evidence of intent found in legislative history is often equivocal or may not be conclusive of the general sentiment of Congress. As one court has warned: Courts should avoid delving into “legislative history which, through strained processes of deduction from events of wholly ambiguous significance, may furnish dubious bases for inference in every direction.” Potomac Passengers Ass’n v. Chesapeake & O. Ry., 475 F.2d 325, 335 (D.C.Cir.1973) (quoting Gemsco, Inc. v. Walling, 324 U.S. 244, 260, 65 S.Ct. 605, 614, 89 L.Ed.2d 921 (1945)), rev’d sub nom., National R. R. Passenger Corp. v. National Ass’n of R. R. Passengers, 414 U.S. 453, 94 S.Ct. 690, 38 L.Ed.2d 646 (1974). . Plaintiff relies on three cases to support its claim that § 1263 implies a private right of action. In Cross v. Board of Supervisors, 326 F.Supp. 634, 638 (N.D.Cal.1968), aff'd on opinion below, 442 F.2d 362 (9th Cir. 1971), the court, although stating that civil recovery “may be applied under appropriate circumstances,” dismissed the complaint because plaintiff had failed to show any damages. In Fine v. Philip Morris, Inc., 239 F.Supp. 361, 363 (S.D.N.Y. 1964), the court, on a motion to remand to state court, retained jurisdiction over a hazardous substances claim, stating that “[t]here is ... no need to determine on this motion whether the Act, properly construed, does or does not give rise to a private right of action for its violation.” In Meredith v. Glamorene Products Corp., 55 F.R.D. 397 (E.D.Wis.1972) the court assumed, but did not discuss, its jurisdiction under the Federal Hazardous Substances Act, in deciding a summary judgment motion on statute of limitation grounds. The court below correctly found these cases not dispositive of the issue because they did not consider the issue at length and/or explicitly in terms of the Cort v. Ash standard. See also Lasker v. Burks, 441 U.S. 471, 476 n.5, 99 S.Ct. 1831, 1836 n.5, 60 L.Ed.2d 404 (1977) (“question whether a cause of action exists is not a question of jurisdiction, and therefore may be assumed without being decided”). . Central to our holding that implication of" }, { "docid": "3367666", "title": "", "text": "(Act protects public at large rather than private group of individuals), aff’d mem. sub nom. East End Yacht Club, Inc. v. Shell Oil Co., 573 F.2d 1289 (2d Cir. 1977); Anderson v. Norfolk & Western Ry., 349 F.Supp. 121, 122 (W.D.Va.1972) (§ 413 delegates enforcement to United States Attorneys; Act precludes qui tarn enforcement). We adhere to the view that enforcement of the Refuse Act is limited to actions by the United States Attorneys. Therefore the dismissal of plaintiffs’ Refuse Act claims must be affirmed. IV. The Federal Common Law of Nuisance In Illinois v. City of Milwaukee, 406 U.S. 91, 92 S.Ct. 1385, 31 L.Ed.2d 712 (1972), a unanimous Supreme Court recognized that there is a federal common law cause of action to abate pollution of interstate ambient water, notwithstanding any relief available under the FWPCAA and held that such a cause of action presented a federal question over which the district courts had section 1331 jurisdiction. The district court refused to extend the cause of action to private litigants and dismissed plaintiffs’ common law nuisance claim. In so holding, the court relied on holdings by other federal district courts that only governmental agencies can sue for relief from a public nuisance. We hold that the common law nuisance remedy recognized in Illinois v. City of Milwaukee is available in suits by private parties. The Court stated explicitly in Illinois that although both parties to that suit were governmental, “it is not only the character of the parties that requires us to apply federal law.” Illinois v. City of Milwaukee, 406 U.S. at 105 n.6, 92 S.Ct. at 1393 n.6. Rather, the Court noted that “where there is an overriding federal interest in the need for a uniform rule of decision . we have fashioned federal common law.” Id. In the instant case, plaintiffs are suing for damages to interstate ambient water, an issue as to which there is a clear and overriding federal interest in uniformity. There is no question but that the interstate pollution here alleged is a problem calling for the application of a uniform federal" }, { "docid": "3367701", "title": "", "text": "1977), that affects only the issue of whether under the Act, the private individual could intervene. In Potomac River Association v. Lundeberg Md. Seamanship School, 402 F.Supp. 344 (D.Md.1975), the court permitted private plaintiffs to sue for the maritime tort of nuisance without reference to a federal common law nuisance claim. Id. at 358-59; see Part V, infra. . Textile Workers v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 923, 1 L.Ed.2d 972 (1957). . Illustration 11, explicitly included within the different in kind test, is indistinguishable from the facts of this suit. It states: 11. A pollutes public waters, killing all of the fish. B, who has been operating a com mercial fishery in these waters, suffers pecuniary loss as a result. B can recover for the public nuisance. Restatement (Second) of Torts § 821C, Illustration 11 (1979). . We need not consider plaintiffs’ assertion that the court had jurisdiction independently under the Extension of Admiralty Act, 46 U.S.C. § 740 (1976). That Act was intended to broaden jurisdiction to cases over which jurisdiction would not have existed under the strict locality test employed prior to Executive Jet. The Act extends admiralty jurisdiction to injuries caused by a vessel on navigable waters the effects of which are felt on land. . The confusion arises because the nuisance claim also requires a showing that these private individuals have suffered damages different in kind from those suffered by the general public. See Part IV, supra. In Burgess, the court held that the tort of nuisance could be a maritime tort and analyzed the complaint under an admiralty theory. See 370 F.Supp. at 250. The plaintiffs in Burgess did not raise, and the court did not address, the federal common law nuisance issue. Thus, the Burgess opinion does not persuade us that an allegation of the tort of nuisance as to which recovery is expressly based on the doctrine of federal common law nuisance may not also be liberally read as sounding in maritime tort. . See 28 U.S.C. § 2675 (six months must elapse following presentation of claim to federal agency" }, { "docid": "8596550", "title": "", "text": "Department of Justice to bring actions for injunctions under § 205. Faced with the absence of any express authority for a private right of action under the 1970 Act, DeRieux argues that such a right may be implied from the purposes and policies of the Act. See Allen v. State Board of Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969); J. I. Case Co. v. Borak, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964). More specifically, the argument is that “the class’s claim is within the scope of the very rights which the statute and the Executive Order were attempting to protect.” The purpose of the Act, DeRieux argues, was “to protect consumers from an increase in prices.” The question of implied private rights of action was most recently the subject of Supreme Court review in National Railroad Passenger Corp. v. National Association of Railroad Passengers, 414 U.S. 453, 94 S.Ct. 690, 38 L.Ed.2d 646 (1974). There, the Court undertook to construe § 307(a) of the “Amtrak Act,” 45 U.S.C. § 547(a). Section 307(a) authorized enforcement actions by the Attorney General and, in cases involving a labor agreement, by affected employees or their representatives. After examining legislative history and the policies of the Act, the Court concluded that § 307(a) provided the exclusive remedies for violations and that no additional private right of action could properly be inferred. In some respects, the problem in Railroad Passengers was different than that posed by § 205 of the Economic Stabilization Act. Since the Amtrak Act expressly authorized some private actions (by employees under a labor agreement), the maxim expressio unius est exclusio alterius applied with particular force to other private actions not so authorized. In addition, in drafting the final Amtrak bill Congress had considered and rejected a proposal to permit suits by any “aggrieved person.” Our review of the legislative history of the Economic Stabilization Act of 1970 has failed to reveal any specific consideration of pro posáis to create or limit private rights of action. We are not left totally without guidance, however. In interpreting" }, { "docid": "903696", "title": "", "text": "reached contrary results. Williamson Towing Co., Inc. v. State of Illinois, supra, 534 F.2d at 762; Intracoastal Transportation, Inc. v. Decatur County, Georgia, 482 F.2d 361, 366-367 (5th Cir. 1973); Red Star Towing & Transportation Co. v. Department of Transportation of New Jersey, 423 F.2d 104, 106 (3d Cir. 1970). The rule in this Circuit is somewhat unclear. In Alameda Conservation Association v. California, 437 F.2d 1087, 1094-1095 (9th Cir.), cert. denied, 402 U.S. 908, 91 S.Ct. 1380, 28 L.Ed.2d 649 (1971), this Court concluded that plaintiffs had standing to sue for an injunction restraining Leslie Salt Co. from damaging them as individuals by filling and obstructing portions of San Francisco Bay in violation of 33 U.S.C. §§ 401 — 406, the Rivers and Harbors Appropriations Act. Had the Court not impliedly recognized a private right of action under that act, it could not have reached the question of standing. Passenger Corp. v. Passengers Ass’n, 414 U.S. 453, 456, 94 S.Ct. 690, 38 L.Ed.2d 646 (1974). Thus, it seems reasonable to conclude that the appellant here has a private cause of action in this Circuit under the Rivers and Harbors Appropriations Act, if not also under the Bridge Act of 1906. See Sierra Club v. Morton, 400 F.Supp. 610, 622 (N.D.Cal.1975); Sierra Club v. Leslie Salt Co., 354 F.Supp. 1099, 1104-1105 (N.D.Cal.1972). See also Cort v. Ash, 422 U.S. 66, 79 n.11, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975) (Supreme Court’s decision in Wyandotte Transportation Co. v. United States, 389 U.S. 191, 201-202, 88 S.Ct. 379, 19 L.Ed.2d 407 (1967) construed as recognizing that United States has private right of action under Rivers and Harbors Appropriations Act). However, the fact that appellant may have an implied private right of action does not necessarily establish a waiver by the State of California of its Eleventh Amendment immunity. III. STATE’S WAIVER Congress, had it chosen to do so, could have conditioned California’s operation of bridges over navigable waters on a waiver of Eleventh Amendment immunity. Parden v. Terminal Railway of the Alabama State Docks Dept. 377 U.S. 184, 192, 84 S.Ct. 1207," }, { "docid": "22588846", "title": "", "text": "the roles of a judiciary. The difference between the majority and dissenting opinions is far more than a choice between competing maritime rules. The majority is driven by the principle of self ordering and modesty for the judicial role; the dissent accepts a role of management which can strain the limits of adjudication. . Plaintiffs argue that the Supreme Court, in Pennsylvania v. Wheeling & Belmont Bridge Co., 54 U.S. (13 How.) 518, 14 L.Ed. 249 (1852), recognized a federal cause of action for public nuisance caused by the obstruction of navigable waterways. As a threshold matter, we note that the Court has apparently foreclosed this line of reasoning in California v. Sierra Club, 451 U.S. 287, 296 n. 7, 101 S.Ct. 1775, 1780 n. 7, 68 L.Ed.2d 101 (1981): Respondents suggest that the Wheeling Court held that federal courts were regularly available to entertain actions for nuisance brought by private parties with respect to obstructions on navigable rivers. But nothing in the opinion supports that view. The discussion in that case of the common law of nuisance is based on the Court’s position that it was entitled to consider state as well as federal issues in the cause before it. Indeed, that the opinion did not establish a general federal law of nuisance with respect to navigable waterways was a point reiterated in Willamette [Iron Bridge Co. v. Hatch, 125 U.S. 1, 15-17, 8 S.Ct. 811, 818-819, 31 L.Ed. 629 (1888) ]. In short, although there may have been a common-law nuisance cause of action for obstructions of navigable waterways. Wheeling Bridge did not federalize that law. Respondents have cited no decision by this Court that did. In any case, our treatment of the nuisance issue, infra, means that plaintiffs here cannot recover whether or not they have a substantive claim for nuisance under federal law. . Section 10 of the Rivers and Harbors Appropriation Act of 1899 provides in part: The creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is prohibited, and it shall" }, { "docid": "3367698", "title": "", "text": "federal rights, and that ambient air or water are interstate problems as to which there is a federal common law remedy, the Supreme Court relied upon Textile Workers v. Lincoln Mills, 353 U.S. 448, 457, 77 S.Ct. 912, 918, 1 L.Ed.2d 972 (1957) and Texas v. Pankey, 441 F.2d 236, 240-41 (10th Cir. 1971). Illinois v. City of Milwaukee, 406 U.S. at 103 & n.5, 92 S.Ct. at 1392 n.5. . Failure sufficiently to allege interstate effects has proved fatal to plaintiffs seeking to base their suits on the federal common law nuisance remedy. Reserve Mining Co. v. EPA, 514 F.2d 492, 520 (8th Cir. 1975); Committee for Consid. of Jones Falls Sew. Sys. v. Train, 539 F.2d 1006, 1009 (4th Cir. 1976). In Illinois v. City of Milwaukee, the immediate issue of concern was the need to apply uniform federal law where the polluting activities of one state caused harm to another state. The need for uniformity, however, is no less a concern where individuals are harmed by the polluting activities of states or their subdivisions. To hold that plaintiffs may not avail themselves of this remedy is to leave open the possibility that this pollution will continue unabated and that the damages suffered by these individuals will be unremedied. Such a result was surely not intended by the unanimous Court in Illinois v. City of Milwaukee. . United States v. Stoeco Homes, Inc., 498 F.2d 597, 611 (3d Cir. 1974), cert. denied, 420 U.S. 927, 95 S.Ct. 1124, 43 L.Ed.2d 397 (1975); United States v. Ira S. Bushey & Sons, 346 F.Supp. 145, 149-50 (D.Vt.1972), aff'd mem., 487 F.2d 1393 (2d Cir. 1973), cert. denied, 417 U.S. 976, 94 S.Ct. 3182, 41 L.Ed.2d 1146 (1974). . City of Evansville v. Ky. Liquid Recycling, 604 F.2d 1008, 1018-19 (7th Cir. 1979). . In Byram River v. Village of Port Chester, 394 F.Supp. 618 (S.D.N.Y.1975), the court extended the Illinois v. City of Milwaukee remedy to (1) Byram River, (2) a private corporation, Byram River Pollution Abatement Association, (3) the Town of Greenwich, a municipal corporation, and (4) a private" } ]

[ { "docid": "22114275", "title": "", "text": "final agency action which may be appealed to a federal court pursuant to the Administrative Procedure Act. Under the Act, the administrative decision may be set aside if it is arbitrary or capricious, 5 U.S.C. § 706(2)(A) (1982), or unconstitutional, id. § 706(2)(B); Stretton v. Wadsworth Veterans Hospital, 537 F.2d 361, 369 n. 19 (9th Cir.1976). A physician who has been wrongfully discharged may obtain judicial relief in the form of reinstatement and back pay. See Giordano, 617 F.2d at 514-15. Thus this is not, as Dr. Franks alleges, a case of damages for the constitutional tort or nothing at all. In addition, the court has power to grant interim equitable relief such as Dr. Franks obtained in the instant case. See, e.g., Stretton, 537 F.2d at 369. As in Bush, a plaintiff such as Dr. Franks has a forum in which to present constitutional claims, may receive judicial review of the administrative proceedings, and may obtain meaningful relief in the form of reinstatement and back pay. Moreover, the legislative history of the procedures at issue here indicates that in removing permanent appointments under section 4104 from civil service requirements, Congress intended “ ‘to free the Veterans Administration from some of the shackles that now, we think, act as an impediment and deterrent to the best medical service.’ ” Kenneth v. Schmoll, 482 F.2d 90, 95 (10th Cir.1973) (quoting 91 Cong.Rec. 11658 (1945)). In so doing Congress clearly intended to provide a summary process by which unqualified physicians previously protected by civil service could be expeditiously separated from service. See Heaney, 756 F.2d at 1218-19; Orloff v. Cleland, 708 F.2d 372, 376-77 (9th Cir.1983); Giordano, 617 F.2d at 517 & n. 9; Stretten, 537 F.2d at 368. Allowing the additional remedy of an implied cause of action would thus thwart the express Congressional intent that probationary employees be subject to separation after summary review. “Congress has chosen to exercise its special expertise and prerogative by providing a less protective system for Veterans Administration medical personnel than for ordinary civil servants, and that is precisely the kind of decision that Bush" } ]

[ { "docid": "10143600", "title": "", "text": "U.S.C. § 1001 apply to their testimony. Id. Within 60 days of receipt of the transcript, the hearing officer must transmit to the Deputy Administrator the record of the hearing, his findings and analysis, and a recommended determination. 7 C.F.R. § 7.32. When the Deputy Administrator makes his final decision, he must set forth the basis for this determination. 7 C.F.R. § 7.33. These decisions constitute final agency action and are subject only to judicial review. 7 C.F.R. § 7.33. The APA requires that a reviewing court set aside any agency action found to be arbitrary, capricious, an abuse of discretion, short of statutory right or contrary to constitutional right, power, privilege, or immunity. 5 U.S.C. § 706. We find that a reviewing court will have sufficient law to apply to determine whether or not Moore’s rights were violated. This is not one of those “rare instances where ‘statutes are drawn in such broad terms that in a given case there is no law to apply.’ ” Heckler v. Chaney, 470 U.S. 821, 830, 105 S.Ct. 1649, 1655, 84 L.Ed.2d 714 (1981). It is well established that APA review is available to other federal employees who are not governed by the CSRA. See Guerrero v. Stone, 970 F.2d 626, 628 (9th Cir.1992) (APA review of decisions boards of correction of military records); Berry v. Hollander, 925 F.2d 311, 315 (9th Cir.1991) (APA review available to discharged VA physician); Garrett v. Lehman, 751 F.2d 997, 999 n. 1 (9th Cir.1985) (APA review of discharge of marine corporal). Moore argues that this administrative remedy cannot bar her Bivens action because Congress has not declared that such a remedy is a substitute for recovery under the Constitution or that it views it as equally effective. Carlson, 446 U.S. at 19, 100 S.Ct. at 1471-72. Moore is correct that judicial review of her claim under the APA does not automatically preclude her Bivens claim. But she is wrong in asserting that the adequacy of the remedy determines when an administrative remedy precludes a Bivens claim. A finding of preclusion is premised only on an" }, { "docid": "13535259", "title": "", "text": "of sovereign immunity shields the United States, its agencies, and its employees from suit, absent a waiver. Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994). The SEC is specifically immune from suit except in certain well-defined circumstances. SEC v. Independence Drilling Corp., 595 F.2d 1006, 1008 (5th Cir.1979); 15 U.S.C. §§ 77v(a), 78aa. A federal agency, including the SEC, may be sued only in the limited circumstances where Congress has expressly waived sovereign immunity. United States v. Dalm, 494 U.S. 596, 608, 110 S.Ct. 1361, 108 L.Ed.2d 548 (1990). Absent a waiver of sovereign immunity, the Court lacks subject matter jurisdiction to adjudicate claims against the United States and its agencies. United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983). Plaintiff does not identify under what congressional waiver of sovereign im munity he seeks to proceed, although there are three potential avenues-the Administrative Procedures Act (the “APA”), 5 U.S.C. §§ 701, et seq., the Federal Tort Claims Act (the “FTCA”), 28 U.S.C. §§ 2671, et seq., and a Bivens action. Plaintiff does not satisfy the requirements of any of these waivers. The APA waives sovereign immunity for certain claims, generally seeking to compel action of the United States government and its agencies. The APA expressly does not waive sovereign immunity for claims seeking money damages. 5 U.S.C. § 702. The APA provides for judicial review only of an “[ajgency action made reviewable by statute and [a] final agency action for which there is no other adequate remedy in a court....” Id. § 704. Plaintiff has not identified any statute that makes the SEC’s actions underlying this case reviewable by the Court, and he has not alleged a final agency action of the SEC which harmed him and for which there is no other adequate remedy. Indeed, Plaintiff appears to concede that the APA does not waive sovereign immunity for the SEC in this case. PL’s Resp. to Def. SEC’s Mot. to Dismiss [14] at 7 (“Plaintiff is seeking monetary relief, and such relief is barred" }, { "docid": "10143597", "title": "", "text": "to ASCS county employees while withholding others, the exclusion of ASCS employees from the CSRA’s administrative procedure for the resolution of retaliation claims cannot be characterized as inadvertent. We are therefore precluded from implying a Bivens remedy for Moore’s claims. See Chilicky, 487 U.S. at 423, 108 S.Ct. at 2468 (“[w]hen the design of a Government program suggests that Congress has provided what it considers adequate remedial mechanisms for constitutional violations that may occur in the course of its administration, we have not created additional Bivens remedies.”); Kotarski, 866 F.2d at 312 (“[s]o long as Congress’ failure to provide money damages, or other significant relief, has not been inadvertent, courts should defer to its judgment.”); cf. Bricker, 22 F.3d at 875 (failed bills “may suggest that Congress’s inaction, whatever its reasons, was not wholly inadvertent.”). B. Alternative Remedies Available to Moore Moore argues that in line with the 8th Circuit’s approach, a Bivens remedy should be judicially created because she has no other right to judicial review of the ASCS’s administrative decision to terminate her. We disagree. The district court correctly held that the APA provides Moore with judicial review of her termination. Final agency actions, like this one, are subject to judicial review: “A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of the relevant statute, is entitled to-judicial review thereof.” 5 U.S.C. § 702. Section 701(a)(2) of the APA does not, as Moore contends, exempt the ASCS from judicial review because its agency action is committed to agency discretion by law. Congress has granted the Secretary the authority to promulgate regulations “relating to the selection and exercise of the functions of the respective committees.” 16 U.S.C. § 590(h). The regulations at issue here, governing the procedures for suspending and removing ASCS county employees, are within this general statutory authority. 7 C.F.R. §§ 7.1-7.38 (1996). Moore’s rights and responsibilities were also delineated in the ASCS Handbook for County Office Personnel Management. The regulations provide that a county employee like Moore may be suspended and removed for cause by" }, { "docid": "1771005", "title": "", "text": "against her in the various Government reports. She argues that such agency actions were arbitrary, capricious, an abuse of discretion, and not in accordance with law, in violation of the Administrative Procedure Act, 5 U.S.C. §§ 701-706. Under § 704 of the APA, review is available under the APA only for final agency action “for which there is no other adequate remedy.” 5 U.S.C. § 704. It is clear that “§ 704 ‘does not provide additional judicial remedies in situations where the Congress has provided special and adequate review procedures.’ ” Bowen v. Massachusetts, 487 U.S. 879, 903, 108 S.Ct. 2722, 2736, 101 L.Ed.2d 749 (1988) (citing Attorney General’s Manual on the Administrative Procedure Act 101 (1947)). A careful reading of the amended complaint reveals that plaintiff’s APA claim is, in part, simply a restatement of her Privacy Act claims. And, to the extent that it is not, it is a claim relating to a personnel action, for which Congress has provided the Civil Service Reform Act, Pub.L. No. 95-454, 92 Stat. 1111 (codified as amended in scattered sections of 5 U.S.C.) (CSRA). In other words, Congress has provided plaintiff with statutory schemes and remedies through which she may seek relief. Thus, her APA claim is properly dismissed under § 704. 3. 42 U.S.C. § 1985(1), (3) Plaintiff alleges that defendants participated in a continuing conspiracy to harm her reputation and employment opportunities and to deprive her of equal protection of the laws, through gender bias, in violation of 42 U.S.C. § 1985(1), (3). Our Court of Appeals has held that the CSRA is the exclusive remedy for aggrieved federal employees and that, therefore, they are precluded from resorting to § 1985(1). Spagnola v. Mathis, 809 F.2d 16, 28-30 (D.C.Cir.1986), on reh’g en banc, 859 F.2d 223 (D.C.Cir.1988). Plaintiff might argue that because she is exempt from the remedial provisions of the CSRA, she has no remedy and therefore may bring suit under § 1985. However, the fact that Congress explicitly denied a remedy to Schedule A employees shows an intention to deny them a statutory or constitutional remedy for" }, { "docid": "10143603", "title": "", "text": "of Medicine and Surgery, reviewable under the APA, as well as a remedy under the Federal Employees Compensation Act, 5 U.S.C. § 8101] do not guarantee full and independent compensation for constitutional violations suffered[,] ... [w]hen Congress has created a statutory remedy for potential harms, the courts must refrain from implying non-statutory causes of actions such as Bivens.”)', cf. Chilicky, 487 U.S. at 427-28, 108 S.Ct. at 2469-70 (where parties are restored to statutory entitlements that were unconstitutionally interrupted, the Constitution does not require additional damages remedy for the constitutional violation itself). Accordingly, we hold that Moore’s statutory right to APA review of her termination by the ASCS, limited though it may be, precludes her Bivens action. IV. Conclusion We AFFIRM the district court’s judgment that Moore’s Bivens action is precluded by her statutory right to judicial review under the APA. AFFIRMED. . The Federal Crop Insurance Reform and Department of Agriculture Reorganization Act of 1994, Pub.L. No. 103-354, 108 Stat. 3178 (1994), 7 U.S.C. §§ 6901-7014 (West Supp.1997), inter alia, reorganized the ASCS into a new agency, the Consolidated Farm Service Agency, which also includes the former Farmer’s Home Administration and the Federal Crop Insurance Corporation. 7 U.S.C. § 6932 (West Supp.1997). . This committee structure has been retained, but the Secretary now has the discretion to use the committees for carrying out other programs administered by the Secretary. 16 U.S.C. § 590(h) (West Supp.1997). . Bush was demoted in 1975, before enactment of the CSRA. See 462 U.S. at 369-70, 103 S.Ct. at 2406-07. He obtained restoration to his position and backpay by using pre-CSRA civil service remedies. See id. at 370-71, 103 S.Ct. at 2407-OS. In its review of the remedial system available to civil servants, the Court discussed the \"comprehensive nature of the remedies currently available [by then the CSRA system was four years old],” Id. at 388, 103 S.Ct. at 2416, which included retroactive seniority, credit for periodic increases and pay raises during the relevant period, and accumulated leave. See Saul v. United States, 928 F.2d 829, 833 (9th Cir.1991) for a history of the" }, { "docid": "12384075", "title": "", "text": "26, 2003, the Court held that the substantive Title VIII provisions cited by Plaintiffs afforded rights cognizable under § 1983. Memorandum and Order at 11-13. Title VI provisions similarly afford Plaintiffs cognizable rights. Upon a finding of liability, § 1983 would empower the Court to afford Plaintiffs the injunctive relief for which they ask. Accordingly, Plaintiffs may proceed on their statutory claims against the Local Defendants by virtue of 42 U.S.C. § 1983. b. Federal Defendants (1). The Administrative Procedure Act The APA authorizes “action[s] in a court of the United States seeking relief other than money damages[.]” A person suffering legal wrong because of [federal] agency action, or adversely affected or aggrieved by agency action ... is entitled to judicial review thereof. ik * $ $ ‡ $ The reviewing court shall... hold unlawful and set aside agency action... found to be... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law [or] contrary to constitutional right[.] 5 U.S.C. §§ 702, 706(2)(A) and (B)(2003). Statutory violations, of course, may constitute agency action “not in accordance with law” within the meaning of the APA. However, the APA, by its own terms, precludes such statute-based rights of action in two pertinent circumstances: 1) where decisions are committed to agency discretion, and 2) where alternate remedies under Federal law are adequate to redress plaintiffs’ grievances. (a). Commitment to Agency Discretion Federal Defendants contend that certain of HUD’s actions challenged by Plaintiffs (chiefly, its supervision of HABC operations) are inherently committed to HUD’s own discretion and therefore may not be reviewed by this Court under the APA. Federal Defendants liken the instant case to Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985), where the Supreme Court precluded APA scrutiny of the Food and Drug Administration’s failure to take investigatory and enforcement measures to prevent perceived drug use violations. The Heckler Court compared the FDA’s enforcement discretion to that of a prosecutor, noting that the agency was most apt at determining how to spend its resources and that an agency’s decision not to “prosecute” was neither" }, { "docid": "3407208", "title": "", "text": "on the APA.” It argues that the USDOT’s failure to require the City to comply with the URA was “per se arbitrary, capricious, and not in accordance with the law,” and it contends that it is entitled, under the 'APA, to an injunction ordering the USDOT to compel the other defendants to comply with § 4651. Because the URA expressly provides that § 4651 “create[s] no rights or liabilities,” 42 U.S.C. § 4602(a), some courts have concluded that there can be no judicial review under the APA of an agency’s compliance with § 4651’s policies.See, e.g., Paramount Farms, Inc. v. Morton, 527 F.2d 1301,1304 (7th Cir.1975); see also 5 U.S.C. § 701(a)(1). (withdrawing APA review where relevant statute “preclude[s] judicial review”). But regardless of whether § 4602(a) can be interpreted as precluding judicial review under the APA, Clear Sky cannot seek relief under the APA because it never asserted an APA claim in its complaint. The only mention of the APA is made in the complaint’s opening statement of jurisdiction: Jurisdiction in this Court is proper for all of the claims and causes of action in this Complaint pursuant to 28 U.S.C. § 1331 (original federal question jurisdiction), 1343, 1346(a)(2) (claims against the United States not exceeding $10,000), 1358 (in the alternative, original jurisdiction for condemnation by agencies of the United States), et seq., 5 U.S.C. §§ 701 and 702 et seq., (federal judicial review of certain administrative matters), 28 U.S.C. §§ 2201-2202 (declaratory relief .regarding rights and legal relations); 28 U.S.C. § 1367(a) (supplemental jurisdiction in the alternative), as well as in relation to 42 U.S.C. §§ 1983, 1985, and 1988 et seq., 42 U.S.C. § 4601 .et seq., and 49 C.F.R. Part 24. (Emphasis added). This passing reference is insufficient to plead a cause of action under the APA for judicial review of “final agency action for which there is no other adequate remedy in a court.” 5 U.S.C. § 704. Moreover, even reading the alleged facts of the complaint liberally does not remotely suggest the existence of a “final agency action,” as necessary to justify judicial review" }, { "docid": "1019540", "title": "", "text": "conclusion in Bush that the administrative remedy need not fully compensate the employee to be exclusive.” Id. at 1239. In reviewing the administrative procedures under Title 38 for probationary VA physicians, the Franks court noted that such physicians who are “separated from service ... may obtain judicial review of [that] administration decision” pursuant to the Administrative Procedure Act (“APA”). Id. at 1239. Under the APA, such a decision may be set aside by a federal court if it is “arbitrary or capricious, or unconstitutional,” and a physician who has been wrongfully discharged may obtain relief in that court in the form of reinstatement and backpay. Id. at 1239-40 (citations omitted). Finding that “[a]s in Bush, a plaintiff such as Dr. Franks has a forum in which to present constitutional claims, may receive judicial review of the administrative proceedings, and may obtain meaningful relief in the form of reinstatement and back pay,” the court concluded that Bush precluded his Bivens-type suit. Id. at 1240. The Ninth Circuit reached a similar conclusion in Berry v. Hollander, 925 F.2d 311 (9th Cir.1991), in which a VA pathologist alleged that defendant VA employees had denied him his due process and free-speech rights in an “alleged conspiracy to drive [him] from his job” resulting from his charges of surgical malpractice. Berry, 925 F.2d at 313. Plaintiff in Berry contended that because defendants’ actions in disciplining him did not take place during a “statutorily authorized dismissal pro ceeding,” where the alleged wrongs might have been remedied in the course of routine review, he had no administrative remedy, and therefore Bush did not apply to bar his claims. Id. at 315. Rejecting that argument, the court noted that the plaintiff was entitled to, inter alia, certain grievance and hearing procedures under DMS regulations and judicial review under the APA, and stated that: Although these remedies do not guarantee full and independent compensation for constitutional violations suffered by a VA physician, they do indicate a con-gressionally-authorized and comprehensive remedial scheme sufficient to preclude additional forms of relief. “Where Congress has designed a program that provides what it considers" }, { "docid": "1771004", "title": "", "text": "the First, Fourth, Fifth, Sixth, and' Ninth Amendments to the Constitution, and common law tort. Discussion 1. The Freedom of Information Act In Count One of her amended complaint, plaintiff argues that she is entitled to receive an unredacted copy of the IG report, pursuant to the FOIA, 5 U.S.C. § 552(a)(3). However, “[i]t goes without saying that exhaustion of remedies is required in FOIA cases.” Dettmann v. United States Dept. of Justice, 802 F.2d 1472, 1476 (D.C.Cir.1986); see 5 U.S.C. § 552(a)(6)(A)(i), (ii). On February 12,1981, plaintiff received part of the IG report, pursuant to the FOIA. Although the Treasury officials set forth in writing the appeal process for the FOIA, plaintiff did not administratively appeal the denial of the entire report. Additionally, plaintiff failed to pursue administrative appeals from subsequent denials of her requests. Accordingly, her FOIA claim must be dismissed. 2. The Administrative Procedure Act Plaintiff alleges that various defendants failed to follow their own regulations and failed to provide plaintiff with a hearing or any other opportunity to rebut the allegations against her in the various Government reports. She argues that such agency actions were arbitrary, capricious, an abuse of discretion, and not in accordance with law, in violation of the Administrative Procedure Act, 5 U.S.C. §§ 701-706. Under § 704 of the APA, review is available under the APA only for final agency action “for which there is no other adequate remedy.” 5 U.S.C. § 704. It is clear that “§ 704 ‘does not provide additional judicial remedies in situations where the Congress has provided special and adequate review procedures.’ ” Bowen v. Massachusetts, 487 U.S. 879, 903, 108 S.Ct. 2722, 2736, 101 L.Ed.2d 749 (1988) (citing Attorney General’s Manual on the Administrative Procedure Act 101 (1947)). A careful reading of the amended complaint reveals that plaintiff’s APA claim is, in part, simply a restatement of her Privacy Act claims. And, to the extent that it is not, it is a claim relating to a personnel action, for which Congress has provided the Civil Service Reform Act, Pub.L. No. 95-454, 92 Stat. 1111 (codified as" }, { "docid": "4349378", "title": "", "text": "of the Larson exception, alleging that defendants’ authority is unconstitutional to the extent that it includes the authority to abrogate a treaty. Plaintiff, however, has not asserted a challenge to the constitutionality of the regulations in its second amended complaint. The Larson case is inapplicable to any other alleged claims in this case because plaintiff does not allege action outside the scope of statutory authority or unconstitutional acts. Plaintiffs only remaining basis for waiver of sovereign immunity is the Administrative Procedure Act, 5 U.S.C. § 701 et seq. Section 702 of the APA has been considered a general waiver of sovereign immunity with respect to injunctive or declaratory relief against federal agency action. See Murdock Mach., 81 F.3d at 930 n. 8 (citing United States v. Mitchell, 463 U.S. 206, 227 n. 32, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983)). “The terms of [the government’s) consent to be sued in any court define that court’s jurisdiction to entertain the suit.” Kelley v. U.S., 69 F.3d 1503, 1507 (10th Cir.1995). The APA provides a waiver of sovereign immunity to the extent that the claims involve judicial review of agency action and plaintiff complies with jurisdictional requirements. See 5 U.S.C. §§ 702 (“person suffering legal wrong because of agency action ... entitled to judicial review thereof’), 704 (specifying jurisdictional limitations on review). B. FPASA and BIA Recognition Claims Plaintiff requests a declaratory judgment that plaintiff is a previously recognized tribe, and that the SFAAP is excess property which must be distributed to plaintiff under 40 U.S.C. § 483. Plaintiff also requests that the court issue a writ of mandamus under 28 U.S.C. § 1361 directing the BIA to add plaintiff to its list of federally recognized tribes. As stated previously, plaintiffs only basis for waiver of sovereign immunity is the APA. “The availability of a remedy under the APA technically precludes [plaintiffs] request for a writ of mandamus.” Mt. Emmons Mining Co. v. Babbitt, 117 F.3d-1167, 1170 (10th Cir.1997). Accordingly, plaintiffs cause of action under 28 U.S.C. § 1361 is dismissed. Neither declaratory judgment claim is ripe for adjudication under the APA." }, { "docid": "314723", "title": "", "text": "the Chief Medical Director, who alone can approve the discharge of the physician. A final decision discharging a physician may then be subjected to judicial review under the Administrative Procedure Act, 5 U.S.C. §§ 702, 706. See Franks v. Nimmo, 796 F.2d 1230, 1239-40 (10th Cir.1986). The decision may be reversed if the physician was denied due process or if the decision was arbitrary, capricious or otherwise illegal. Heaney, 756 F.2d at 1219. Finally, a physician discharged for disability may seek a remedy, as Berry has, under the Federal Employees Compensation Act, 5 U.S.C. § 8101. Although these remedies do not guarantee full and independent compensation for constitutional violations suffered by a VA physician, they do indicate a congressionally-authorized and comprehensive remedial scheme sufficient to preclude additional forms of relief. “Where Congress has designed a program that provides what it considers adequate remedial mechanisms for constitutional violations, Bivens actions should not be implied.” Kotarski II, 866 F.2d at 312. To allow Berry’s action would eviscerate the Supreme Court’s holdings in Bush and Chilicky, which we cannot sanction. VI The Supreme Court has made clear the propriety of according great deference to Congress in devising remedial schemes for wrongs committed against employees of the federal government. When Congress has created a statutory remedy for potential harms, the courts must refrain from implying non-statutory causes of actions such as Bivens. In obeying the Court’s directive to show deference to Congress, we held in Kotarski II that if there is some statutory mechanism for remedying harm to a governmental employee, non-statutory claims are barred. Because Berry had several remedial mechanisms available to him, his Bivens claims are barred. Accordingly, the judgment is AFFIRMED. . In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), the Court held that federal officials acting under color of authority could be sued for violating plaintiff's Fourth Amendment rights. In subsequent cases, the Court has expanded Bivens to apply to other amendments. Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980) (Eighth" }, { "docid": "1019539", "title": "", "text": "courts. Id. The court then concluded that the DMS regulatory scheme constituted a special factor counseling against authorizing a damages remedy and accordingly dismissed plaintiffs Bivens claims. See id. at 1220. The Tenth Circuit followed the reasoning of Heaney in Franks v. Nimmo, 796 F.2d 1230 (10th Cir.1986), in which a VA physician asserted constitutional claims against VA officials, alleging that they had improperly treated him as a “probationary employee” in conducting termination procedures, or in the alternative, that they had failed to follow the proper procedures for termination of probationary employees. He sought damages for alleged deprivation of his rights to due process and free speech. The court held that “the implied cause of action Dr. Franks seeks to assert is barred by the rationale applied in Bush.” Franks, 796 F.2d at 1238. The court rejected the plaintiffs argument that Bush was inapposite because he was not a civil service employee, stating that “this argument is unpersuasive in view of the administrative procedures that Congress has provided to these [VA] employees, and the Court’s conclusion in Bush that the administrative remedy need not fully compensate the employee to be exclusive.” Id. at 1239. In reviewing the administrative procedures under Title 38 for probationary VA physicians, the Franks court noted that such physicians who are “separated from service ... may obtain judicial review of [that] administration decision” pursuant to the Administrative Procedure Act (“APA”). Id. at 1239. Under the APA, such a decision may be set aside by a federal court if it is “arbitrary or capricious, or unconstitutional,” and a physician who has been wrongfully discharged may obtain relief in that court in the form of reinstatement and backpay. Id. at 1239-40 (citations omitted). Finding that “[a]s in Bush, a plaintiff such as Dr. Franks has a forum in which to present constitutional claims, may receive judicial review of the administrative proceedings, and may obtain meaningful relief in the form of reinstatement and back pay,” the court concluded that Bush precluded his Bivens-type suit. Id. at 1240. The Ninth Circuit reached a similar conclusion in Berry v. Hollander, 925" }, { "docid": "1019541", "title": "", "text": "F.2d 311 (9th Cir.1991), in which a VA pathologist alleged that defendant VA employees had denied him his due process and free-speech rights in an “alleged conspiracy to drive [him] from his job” resulting from his charges of surgical malpractice. Berry, 925 F.2d at 313. Plaintiff in Berry contended that because defendants’ actions in disciplining him did not take place during a “statutorily authorized dismissal pro ceeding,” where the alleged wrongs might have been remedied in the course of routine review, he had no administrative remedy, and therefore Bush did not apply to bar his claims. Id. at 315. Rejecting that argument, the court noted that the plaintiff was entitled to, inter alia, certain grievance and hearing procedures under DMS regulations and judicial review under the APA, and stated that: Although these remedies do not guarantee full and independent compensation for constitutional violations suffered by a VA physician, they do indicate a con-gressionally-authorized and comprehensive remedial scheme sufficient to preclude additional forms of relief. “Where Congress has designed a program that provides what it considers adequate remedial mechanisms for constitutional violations, Bivens actions should not be implied.” To allow Berry’s [Bivens ] action would eviscerate the Supreme Court holdings in Bush and Chilicky, which we cannot sanction. Id. at 315-16 (quoting Kotarski v. Cooper, 866 F.2d 311, 312 (9th Cir.1989)). “[Cjourts must withhold their power to fashion damages remedies when Congress has put in place a comprehensive system to administer public rights, has ‘not inadvertently’ omitted damages remedies for certain claimants, and has not plainly expressed an intention that the courts preserve Bivens remedies.” Spagnola v. Mathis, 859 F.2d 223, 228 (D.C.Cir.1988). Following Heaney, Franks, and Berry, the Court concludes that such a system is in place in the instant case. See also Maxey v. Kadrovach, 890 F.2d 73, 75-76 (8th Cir. 1989); Daly-Murphy v. Winston, 820 F.2d 1470, 1478 (9th Cir.1987). Given that Dr. Newmark’s Bivens claims — of First and Fifth Amendment violations in Counts IV, V, and VI — arise out of an employment relationship with PVAMC, and that Congress has provided a remedial scheme to address" }, { "docid": "10143602", "title": "", "text": "alternative scheme and some indication that Congress deliberately elected not to include complete relief. Chilicky, 487 U.S. at 423, 108 S.Ct. at 2467-68; Saul v. United States, 928 F.2d 829, 837 (9th Cir.l991)(holding that the CSRA precludes even those Bivens claims for which the act prescribes no alternative remedy because it found no inadvertence by Congress in omitting the remedy). We have held that administrative remedies preclude a Bivens action even when that relief is incomplete. See Jones Intercable of San Diego v. Chula Vista, 80 F.3d 320, 326 (9th Cir.1996) (Bivens claim denied to cable operator who was limited to permanent injunctive relief but could not recover damages from city for past violation of his constitutional rights); Bricker, 22 F.3d at 873 {Bivens claim denied to employee at government-owned, contractor-operated nuclear facility because congressional failure to provide a damage remedy for such employees was not inadvertent and other administrative remedies were available); Berry v. Hollander, 925 F.2d 311, 315-16 (9th Cir. 1991) (“Although these remedies [a system of appeals for those in the Department of Medicine and Surgery, reviewable under the APA, as well as a remedy under the Federal Employees Compensation Act, 5 U.S.C. § 8101] do not guarantee full and independent compensation for constitutional violations suffered[,] ... [w]hen Congress has created a statutory remedy for potential harms, the courts must refrain from implying non-statutory causes of actions such as Bivens.”)', cf. Chilicky, 487 U.S. at 427-28, 108 S.Ct. at 2469-70 (where parties are restored to statutory entitlements that were unconstitutionally interrupted, the Constitution does not require additional damages remedy for the constitutional violation itself). Accordingly, we hold that Moore’s statutory right to APA review of her termination by the ASCS, limited though it may be, precludes her Bivens action. IV. Conclusion We AFFIRM the district court’s judgment that Moore’s Bivens action is precluded by her statutory right to judicial review under the APA. AFFIRMED. . The Federal Crop Insurance Reform and Department of Agriculture Reorganization Act of 1994, Pub.L. No. 103-354, 108 Stat. 3178 (1994), 7 U.S.C. §§ 6901-7014 (West Supp.1997), inter alia, reorganized the ASCS into" }, { "docid": "17679272", "title": "", "text": "the judgment.” 426 F.Supp. at 1309 n. 26. Thomas Funding Corp. v. United States, 15 Cl.Ct. at 499 n. 2. Therefore, the court, hereby, grants the defendant’s motion to dismiss the plaintiffs APA claim because this court lacks jurisdiction over the claim. Despite the jurisdictional defectiveness of the plaintiffs APA claim in this court, the plaintiffs APA claim is unlikely to be successful in any event. The APA, in 5 U.S.C. § 701, “provides that the action of ‘each authority of the Government of the United States,’ ... is subject to judicial review except where there is a statutory prohibition on review or where ‘agency action is committed to agency discretion by law.’” Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). Section 702 of the APA provides that “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” 5 U.S.C. § 702. “Any person ‘adversely affected or aggrieved’ by agency action, see § 702, including a ‘failure to act,’ is entitled to ‘judicial review thereof,’ as long as the action is a ‘final agency action for which there is no other adequate remedy in a court,’ see § 704.” Heckler v. Chaney, 470 U.S. 821, 828, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985). The scope of review undertaken by a court in reviewing the action of a government agency is outlined in 5 U.S.C. § 706, as follows: To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall— (1) compel agency action unlawfully withheld or unreasonably delayed; and (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; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of" }, { "docid": "14257152", "title": "", "text": "to a forum in which to air their claims of discrimination. They disagree over the forum and the vehicle: plaintiffs contend that they may obtain relief by suit commenced in district court under the Rehabilitation Act, while SSA insists that they must seek an administrative remedy under the Administrative Procedures Act, 5 U.S.C. §§ 701 et seq. (“APA”). We begin by examining the structures of the two statutes. The APA provides a mechanism for persons “suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action” to obtain judicial review and relief “other than money damages.” 5 U.S.C. § 702. A reviewing court has the power to “compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1). It may also “hold unlawful and set aside agency action ... found to be — (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; ... [or] (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 706(2). For agency action to be reviewable under the APA, it must be “final.” 5 U.S.C. § 704. In this case, finality would require that plaintiffs exhaust the administrative procedure set forth in 45 C.F.R. § 85 (“Enforcement of Non-Discrimination on the Basis of Handicap in Programs or Activities Conducted by the Department of Health and Human Services”). Section 504 of the Rehabilitation Act of 1973 (as amended) states: No otherwise qualified individual with handicaps in the United States ... shall, solely by reason of her or his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service. 29 U.S.C. § 794. Like the APA, the Rehabilitation Act may be used to obtain redress from the government. “Congress unequivocally expressed its intent [in section 504] to provide handicapped victims of government discrimination a private right of action for damages against the government discriminator.” Doe v." }, { "docid": "14257151", "title": "", "text": "30 days to amend their complaint. They did not do so; a final judgment was entered January 22, 1991. Plaintiffs timely appeal. JURISDICTION The district court in its Tentative Ruling concluded that it had no jurisdiction to hear the claim because federal question jurisdiction under 28 U.S.C. § 1331 is barred by 42 U.S.C. § 405(h). The district court erred. Section 405(h) provides that jurisdiction over cases “arising under” the Social Security Act can be had only upon the terms described in 42 U.S.C. § 405(g). Because plaintiffs’ claims are predicated on the Rehabilitation Act, they do not “arise under” the Social Security Act. Jurisdiction under 28 U.S.C. § 1331 was not precluded, nor was it precluded under 28 U.S.C. § 1361 (mandamus). Appellate jurisdiction over the final order of dismissal derives from 28 U.S.C. § 1291. STANDARD OF REVIEW Dismissals under Rule 12(b)(6) are matters of law, reviewed de novo. Klarfeld v. United States, 944 F.2d 583, 585 (9th Cir. 1991). DISCUSSION 1. STATUTORY SOURCES OF RELIEF The parties agree that plaintiffs are entitled to a forum in which to air their claims of discrimination. They disagree over the forum and the vehicle: plaintiffs contend that they may obtain relief by suit commenced in district court under the Rehabilitation Act, while SSA insists that they must seek an administrative remedy under the Administrative Procedures Act, 5 U.S.C. §§ 701 et seq. (“APA”). We begin by examining the structures of the two statutes. The APA provides a mechanism for persons “suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action” to obtain judicial review and relief “other than money damages.” 5 U.S.C. § 702. A reviewing court has the power to “compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1). It may also “hold unlawful and set aside agency action ... found to be — (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; ... [or] (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 706(2). For agency action" }, { "docid": "10143601", "title": "", "text": "S.Ct. 1649, 1655, 84 L.Ed.2d 714 (1981). It is well established that APA review is available to other federal employees who are not governed by the CSRA. See Guerrero v. Stone, 970 F.2d 626, 628 (9th Cir.1992) (APA review of decisions boards of correction of military records); Berry v. Hollander, 925 F.2d 311, 315 (9th Cir.1991) (APA review available to discharged VA physician); Garrett v. Lehman, 751 F.2d 997, 999 n. 1 (9th Cir.1985) (APA review of discharge of marine corporal). Moore argues that this administrative remedy cannot bar her Bivens action because Congress has not declared that such a remedy is a substitute for recovery under the Constitution or that it views it as equally effective. Carlson, 446 U.S. at 19, 100 S.Ct. at 1471-72. Moore is correct that judicial review of her claim under the APA does not automatically preclude her Bivens claim. But she is wrong in asserting that the adequacy of the remedy determines when an administrative remedy precludes a Bivens claim. A finding of preclusion is premised only on an alternative scheme and some indication that Congress deliberately elected not to include complete relief. Chilicky, 487 U.S. at 423, 108 S.Ct. at 2467-68; Saul v. United States, 928 F.2d 829, 837 (9th Cir.l991)(holding that the CSRA precludes even those Bivens claims for which the act prescribes no alternative remedy because it found no inadvertence by Congress in omitting the remedy). We have held that administrative remedies preclude a Bivens action even when that relief is incomplete. See Jones Intercable of San Diego v. Chula Vista, 80 F.3d 320, 326 (9th Cir.1996) (Bivens claim denied to cable operator who was limited to permanent injunctive relief but could not recover damages from city for past violation of his constitutional rights); Bricker, 22 F.3d at 873 {Bivens claim denied to employee at government-owned, contractor-operated nuclear facility because congressional failure to provide a damage remedy for such employees was not inadvertent and other administrative remedies were available); Berry v. Hollander, 925 F.2d 311, 315-16 (9th Cir. 1991) (“Although these remedies [a system of appeals for those in the Department" }, { "docid": "10143589", "title": "", "text": "complaint in federal district court, seeking damages under Bivens, reinstatement, and back pay. Defendants filed a motion for summary judgment, asserting that there were “special factors” that precluded the judicial creation of a Bivens remedy and that defendants were entitled to either qualified or absolute immunity for their roles in Moore’s termination. The district court granted the defendants’ motion. It dismissed Moore’s constitutional claims with prejudice, but held that Moore had a statutory right to judicial review pursuant to the Administrative Procedure Act, 5 U.S.C. §§ 701-706 (the “APA”), and granted her leave to file an amended complaint alleging a claim under the APA. The district court issued a partial final judgment under Rule 54(b) of the Federal Rules of Civil Procedure. This appeal followed. II. LEGAL FRAMEWORK Whether a Bivens remedy can be implied for ASCS employees of the USDA is a question of first impression in this circuit. Our analysis of this issue, however, is guided by the Supreme Court’s articulation of the factors that courts must consider when determining whether to create a Bivens remedy. In Bivens, the Supreme Court held that the victim of a Fourth Amendment violation committed by federal offi cers acting under color of their authority could bring an action under federal law for money damages against the officers. The Bivens Court observed that “[t]he present case involves no special factors counselling hesitation in the absence of affirmative action by Congress.” ' Bricker v. Rockwell Int’l Corp., 22 F.3d 871, 873 (9th Cir.1993) (citations omitted). More recently, the Court has “responded cautiously to suggestions that Bivens remedies be extended into new contexts.” Schweiker v. Chilicky, 487 U.S. 412, 421, 108 S.Ct. 2460, 2467, 101 L.Ed.2d 370 (1988). An express limitation on the creation of a Bivens claim can be found when Congress has provided an alternative remedy which it explicitly declares to be a substitute for recovery directly under the Constitution and views as equally effective. Carlson v. Green, 446 U.S. 14, 18-19, 100 S.Ct. 1468, 1471-72, 64 L.Ed.2d 15 (1980) (citing Bivens, 403 U.S. at 397, 91 S.Ct. at 2005; Davis v." }, { "docid": "15093337", "title": "", "text": "v. United States, 666 F.2d 960, 966 (5th Cir.), cert. denied, 459 U.S. 832, 103 S.Ct. 73, 74 L.Ed.2d 72 (1982); Contemporary Mission, Inc. v. U.S. Postal Serv., 648 F.2d 97, 104 n. 9 (2d Cir.1981). The Atomic Energy Act, which plaintiff alleges has been violated, contains no waiver of sovereign immunity. Because Nuclear Transport points to no statutory or judicial waiver of immunity that would allow it to pursue its damage claim against the United States, we find that the damage claim is barred by the doctrine of sovereign immunity. B. Nuclear Transport argues that a waiver of sovereign immunity for its claim for injunctive and declaratory relief is found in the Administrative Procedure Act (APA), 5 U.S.C. § 702, which provides: A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party. The United States may be named as a defendant in any such action, and a judgment or decree may be entered against the United States.... The government contends that waiver of sovereign immunity under the APA only applies where there exists no other adequate remedy in a court, 5 U.S.C. § 703, and that if plaintiff’s claim is characterized as an unconstitutional taking in violation of the Fifth Amendment, it would have an adequate remedy in the Court of Claims. Nuclear Transport argues that it is not alleging an unconstitutional taking under the Fifth Amendment. A taking claim implies that the government has a right to the property, but has not proceeded according to due process requirements. Nuclear Transport instead alleges the deprivation of property through" } ]

[ { "docid": "17789541", "title": "", "text": "Bhd. of Carpenters, 525 F.2d 508, 512-13 (2d Cir.1975) (court may review suggestion of lack of subject matter jurisdiction upon otherwise proper interlocutory appeal). DISCUSSION FIRREA’s anti-injunction provision, 12 U.S.C. § 1821(j), provides that: Except as provided in this section, no court may take any action, except at the request of the Board of Directors by regulation or order, to restrain or affect the exercise of powers or functions of the [RTC] as a conservator or a receiver. The district court interpreted the language of § 1821(j) to mean that no court may enjoin the RTC when it is exercising its receivership powers in a manner that is otherwise consistent with a party’s rights under state contract law. The court reasoned that although the RTC ordinarily could dispose of the mortgages in any manner it saw fit, and although the RTC is empowered to repudiate contracts entered into by an institution pre-receivership, once the RTC itself enters into a settlement contract it can be held to the agreement’s terms. The court concluded that the disposition of assets in violation of a post-receivership contract was beyond the RTC’s statutory powers — in effect ultra vires — and that the anti-injunction provision therefore did not shield the RTC from the court’s.equitable jurisdiction. We do not agree with the implicit limitation the district court reads into § 1821(j) that would give courts equitable jurisdiction to compel the RTC to honor a third party’s rights as against the RTC under state contract law. Such a limitation cannot be found in the statutory language. Section 1821(j) broadly and unequivocally states that “no court may take any action ... to restrain or affect the exercise of powers or functions of the [RTC].” Nor can the district court’s limitation be reconciled with § 1821(j)’s overall purpose. FIRREA’s anti-injunction provision is but part of a broader scheme enacted to allow the RTC expeditiously to wind up the affairs of defunct savings and loan institutions without judicial interference. See, e.g., 12 U.S.C. § 1821(d)(13)(C) (prohibiting courts from attaching or executing upon RTC assets); id. § 1825(b)(2) (prohibiting involuntary sale," } ]

[ { "docid": "22159083", "title": "", "text": "appellants were enjoined from sending or filing any further documents for the purpose of terminating the plan. B. PRELIMINARY INJUNCTION AGAINST APPELLANTS OTHER THAN RTC IN ITS CORPORATE CAPACITY RTC contends that a provision of FIRREA, 12 U.S.C.A. § 1821(j) (West 1989), prohibited the district court’s injunction in all its respects except as to RTC in its corporate capacity. Section 1821(j) reads: Except as provided in this section, no court may take any action, except at the request of the Board of Directors by regulation or order, to restrain or affect the exercise of powers or functions of the Corporation as a conservator or a receiver. RTC concedes that this provision does not affect orders running against it in its corporate capacity. Here again we note that, to the extent of a conflict between this provision and provisions of ERISA authorizing relief, § 1821(j) controls. Before confronting RTC’s contention, we initially address plaintiffs’ and PBGC’s broad challenge to the applicability of § 1821(j) to the district court’s order. We understand their argument to be that, while RTC as conservator and receiver is authorized to run the affairs of a troubled institution, including its personnel relation affairs, it is only authorized to run them in a legal manner. Thus, because the termination of the plan was illegal under ERISA, that termination was not among the “powers or functions of the Corporation as a conservator or a receiver.” We find no such limitation in the language of § 1821(j). Furthermore, plaintiffs’ and PBGC’s interpretation would undermine the purpose of the statute, namely, to permit RTC as conservator or receiver to function without judicial interference that would restrain or affect the exercise of its powers. See infra at 399-400. We therefore reject plaintiffs’ and PBGC’s broad challenge and move on to address RTC’s contention as to the applicability of § 1821(j) to the district court’s order. RTC’s argument first requires that we identify the powers of RTC as conservator and receiver. These powers are defined by FIRREA and for the most part are found at 12 U.S.C.A. § 1821(d)(2) (West 1989) which provides" }, { "docid": "14193692", "title": "", "text": "See Volges, 32 F.3d at 52. If this court allows Pyramid to proceed with its fifth cause of action in this case, that congressional scheme would surely be violated. For example, because the RTC gave Wind River a special warranty deed when it transferred to it the Snow Creek Parcel, it is likely that Wind River would require the RTC to defend that deed in any action where a party, such as Pyramid does here, seeks to challenge Wind River’s title. Such a result would by definition “restrain or affect” the RTC in violation of section 1821(j), as it would entrench the RTC in expensive and time-consuming litigation at the expense of fulfilling its statutory duties. Similarly, if this court were to entertain Pyramid’s fifth claim for relief in this ease, then future transactions might be unduly “chilled” as potential bidders of RTC assets might be wary of having the very type of relief imposed on them that Pyramid seeks to impose on Wind River now. This the court is not prepared to allow. Thus, for all of the foregoing reasons, this court finds that it lacks jurisdiction under section 1821(j) to grant.the type of relief Pyramid has requested in its fifth cause of action. Accordingly, this court grants Wind River’s motion to dismiss that claim with prejudice as a matter of law. IV. ORDER For the foregoing reasons, and good cause appearing, IT IS HEREBY ORDERED as follows: 1. Wind River’s motion to dismiss with prejudice Pyramid’s fifth cause of action is hereby granted. 2. This order shall serve as the order of the court and no further order need by prepared by counsel. . Western is a failed Phoenix, Arizona thrift. In May, 1990, the RTC was appointed receiver of Western's assets and liabilities, including the 51.84 acre Snow Creek Parcel at issue here. . 16 U.S.C.A. §§ 3501-3510 (West 1988 & Supp. 1994). . At no time during the RFP process did Wind River ever express an interest in becoming Park City's financial partner. . Pyramid claims that it expended more than $170,000 to bring the Snow" }, { "docid": "14193686", "title": "", "text": "the exercise of powers or junctions of the Corporation as a conservator or a receiver. 12 U.S.C.A. § 1821 (j) (West 1988) (emphasis added). Clearly, the disposition of a failed thrift’s assets, like the RTC’s sale of the Snow Creek Parcel to Wind River in this case, is one of the quintessential statutory powers of the RTC as a receiver. See id. § 1821(d)(2)(E) (giving the RTC the express power to “realize upon the assets of the institution”); Ward v. Resolution Trust Corp., 996 F.2d 99, 104 (5th Cir.1993) (per curiam) (holding that the “sale of property acquired by the RTC from a failed institution, or administered by the RTC as conservator or receiver of such an institution, is beyond cavil a statutory power and function of the RTC”). Equally clear is that section 1821(j) prohibits a federal court from granting a party any sort of equitable relief that would directly “restrain or affect” the RTC in carrying out its statutory powers. See, e.g., Carney v. Resolution Trust Corp., 19 F.3d 950, 956-58 (5th Cir.1994) (holding that section 1821(j) prevents a court from considering claims for declaratory and injunctive relief against the RTC); Ward, 996 F.2d at 104 (holding that section 1821(j) prevents a court from either enjoining or rescinding the RTC’s sale of property acquired from a failed thrift); United, Liberty Life Ins. Co. v. Ryan, 985 F.2d 1320, 1329 (6th Cir.1993) (holding that section 1821(j) prohibits a court from rescinding the RTC’s transfer of the assets of a failed thrift). Pyramid does not quibble with these authorities in opposing Wind River’s motion to dismiss here. Indeed, Pyramid’s argument in this case centers not on the concededly broad sweep of section 1821(j), but on whether section 1821(j) applies to the relief requested in Pyramid’s fifth cause of action at all. As noted supra, Pyramid’s fifth cause of action seeks injunctive relief requiring Wind River to transfer title in the Snow Creek Parcel to Pyramid in exchange for the purchase price to which Pyramid and the RTC had previously agreed. See Pyramid’s Complaint at ¶ 65. Pyramid contends that this" }, { "docid": "23561196", "title": "", "text": "FDIC clearly was acting in its corporate capacity. Appellants argue that the district court erred in dismissing the APA claim based upon section 1821(j) because the section does not preclude judicial intervention where the FDIC acts in its corporate capacity. Thus, appellants would have us interpret section 1821(j) to preclude only those orders directly against the FDIC as receiver or as conservator. We find, however, that the plain language of the statute is not so limited. Rather, the statute, by its terms, can preclude relief even against a third party, including the FDIC in its corporate capacity, where the result is such that the relief “restraints] or affect[s] the exercise of powers or functions of the [FDIC] as a conservator or a receiver.” 12 U.S.C. § 1821(j) (emphasis added). After all, an action can “affect” the exercise of powers by an agency without being aimed directly at it. We note that our holding is not inconsistent with our decision in Rosa v. RTC, 938 F.2d 383, 397, 400 (3d Cir.1991). In Rosa, we did not decide the reach of section 1821 (j) because the RTC conceded that the anti-injunction provision did not preclude the district court orders running against it in its corporate capacity. See Rosa, 938 F.2d at 397, 400. Thus, Rosa did not hold that section 1821(j) allows an injunction against the FDIC in its corporate capacity. Further, because the court did not discuss the issue, the nature of the district court orders running against the RTC in its corporate capacity is not clear; thus, it is unclear whether the order running against the RTC in its corporate capacity would have had the type of effect we now describe. We, therefore, find that Rosa does not control the issue which we now confront. Likewise, we note that the opinions of other courts of appeals do not speak directly to the issue at hand. See Bursik v. One Fourth St. N., Ltd., 84 F.3d 1395, 1397 (11th Cir.1996) (the section applies only if the RTC is acting in its capacity as receiver); Fischer v. RTC, 59 F.3d 1344, 1347" }, { "docid": "14193690", "title": "", "text": "Chief Judge Kelly held that enjoining a non-RTC defendant in connection with a tortious interference with contract claim would violate section 1821(j) just as surely as if the RTC were enjoined directly. Id. at *9. In so holding, Chief Judge Kelly rejected an argument that was remarkably similar to the one raised by Pyramid here. Chief Judge Kelly wrote: The statute states that the court may not take “any action” to restrain the receiver in its functions or powers. 12 U.S.C. § 1821(j). If an injunction against Bob’s were to be granted, the effect would be to enjoin RTC in its capacity as a receiver, the very result the statute prevents. There seems [to be] no reason to allow a request for injunctive relief to circumvent the express statutory language. Thus, the statute says the court cannot take “any action” to restrain the receiver, and this would apply to granting injunctive relief against Bob’s. Id. (emphasis added); see also Furgatch v. Resolution Trust Corp., 1993 WL 149084, at *2 (N.D.Cal. Apr. 30, 1993) (“Plaintiff contends that section 1821(j) is inapplicable in this case because he is attempting to enjoin Homefed and the trustee who is conducting the sale, not the RTC. However, enjoining these parties indirectly enjoins the RTC, which a district court has no power to do”). In this case, the RTC has already sold the Snow Creek Parcel to Wind River and Pyramid’s fifth claim for relief would now rescind that deal in its entirety and order Wind River to sell the property to Pyramid. Such relief would undoubtedly “restrain or affect” the RTC in the performance of its statutory duties just as surely as the cases mentioned above. Accordingly, this court is without power to order such a transaction. Finally, to read section 1821(j) as narrowly as Pyramid suggests would violate the clear intent of Congress in enacting the statute. As is abundantly clear from its legislative history, section 1821(j) is “but part of a broader scheme enacted to allow the RTC expeditiously to wind up the affairs of defunct savings and loan institutions without judicial interference.”" }, { "docid": "14193688", "title": "", "text": "relief does not violate section 1821(j)’s “restraining or affecting” language in any way, because “[hjaving already liquidated the property that is the subject of this litigation, and having realized the profits therefrom, RTC has entirely performed its role as receiver and has no remaining interest in the property.” See Pyramid’s (Substituted) Mem. in Opp’n to Mot. to Intervene at 2. The court must reject Pyramid’s narrow interpretation of section 1821(j), for several reasons. First, the plain language of the statute does not allow for such a limited reading. It provides that “no court may take any action ... to restrain or affect the exercise of powers or functions of the Corporation as a conservator or a receiver.” 12 U.S.C.A. § 1821(j) (West 1988) (emphasis added). Such broad and all-encompassing language evidences, in the court’s view, an intent by Congress to prohibit any interference with the RTC as a receiver — either directly or indirectly. Thus, to the extent that Pyramid attempts to confine section 1821(j)’s reach to only those cases where the RTC is directly interfered with, that attempt must be rejected as inconsistent with the statute itself. See Volges v. Resolution Trust Corp., 32 F.3d 50, 52 (2d Cir.1994) (refusing to narrow section 1821(j)’s reach in light of the statute’s broad and unequivocal language). Second, Pyramid’s narrow reading of section 1821(j) is controverted by the many federal courts around the United States which have also interpreted the statute. For example, in Telematics Int’l v. NEMLC Leasing Corp., 967 F.2d 703 (1st Cir.1992), Telematics, a private, non-RTC plaintiff, sought declaratory relief permitting it to attach a certificate of deposit in which an insolvent bank in FDIC receivership held a security interest. The First Circuit refused to entertain such relief under section 1821(j), however, because it “would have the same effect, from the FDIC’s perspective, as directly enjoining the FDIC from attaching the asset.” Id. at 707. Similarly, in Homeland Stores, Inc. v. Resolution Trust Corp., 1992 WL 319659 (D.Kan. Oct. 13, 1992), aff'd, 17 F.3d 1269 (10th Cir.), cert. denied, — U.S. -, 115 S.Ct. 317, 130 L.Ed.2d 279 (1994)," }, { "docid": "299229", "title": "", "text": "FDIC had a security interest because the attachment would ultimately have an effect upon the FDIC’s exercise of its powers as receiver). We agree with the reasoning in Hindes and find that Dittmer’s request for injunctive relief is barred by § 1821(j), even though the FDIC is no longer the holder of the note, because the relief requested — a declaration that the note is void as to Dittmer — affects the FDIC’s ability to function as receiver in the case. The “disposition of a failed [bank’s] assets ... is one of the quintessential statutory powers of the [FDIC] as a receiver.” Pyramid Constr. Co. v. Wind River Petroleum, Inc., 866 F.Supp. 513, 517 (D.Utah 1994). If an asset sold to a third-party purchaser is subject to dilution in a later judicial proceeding, there would be a substantial chilling effect upon the receiver’s ability to perform its statutory functions. In Pyramid, the court rejected the argument that § 1821(j) did not apply because a plaintiff sought relief against the receiver’s successor. The plaintiffs argument in Pyramid sounded much like Dittmer’s here — because the receiver had already liquidated the subject property and realized the profits therefrom, the receiver had no remaining interest in the property. Id. at 518. The Pyramid court disagreed, finding that the plain language of the statute reflected Congress’s intent to prohibit any interference, direct or indirect, with the functions of the receiver. Id. And, like Dittmer’s lawsuit, the Pyramid court found that the plaintiffs suit would have the effect of rescinding the transfer of property from the receiver to the purchasing company, a move that “would undoubtedly ‘restrain or affect’ the [receiver] in the performance of its statutory duties.” Id. at 519. Other lower courts are in accord with the reasoning of Hindes and Pyramid. See, e.g., Hoxeng v. Topeka Broadcomm, Inc., 911 F.Supp. 1323, 1334-35 (D.Kan.1996) (holding that the FDIC’s agent could assert § 1821 © to bar a claim for specific performance even when the FDIC was not, and could not have been, a party to the case); Furgatch v. Resolution Trust Corp., No." }, { "docid": "14193689", "title": "", "text": "interfered with, that attempt must be rejected as inconsistent with the statute itself. See Volges v. Resolution Trust Corp., 32 F.3d 50, 52 (2d Cir.1994) (refusing to narrow section 1821(j)’s reach in light of the statute’s broad and unequivocal language). Second, Pyramid’s narrow reading of section 1821(j) is controverted by the many federal courts around the United States which have also interpreted the statute. For example, in Telematics Int’l v. NEMLC Leasing Corp., 967 F.2d 703 (1st Cir.1992), Telematics, a private, non-RTC plaintiff, sought declaratory relief permitting it to attach a certificate of deposit in which an insolvent bank in FDIC receivership held a security interest. The First Circuit refused to entertain such relief under section 1821(j), however, because it “would have the same effect, from the FDIC’s perspective, as directly enjoining the FDIC from attaching the asset.” Id. at 707. Similarly, in Homeland Stores, Inc. v. Resolution Trust Corp., 1992 WL 319659 (D.Kan. Oct. 13, 1992), aff'd, 17 F.3d 1269 (10th Cir.), cert. denied, — U.S. -, 115 S.Ct. 317, 130 L.Ed.2d 279 (1994), Chief Judge Kelly held that enjoining a non-RTC defendant in connection with a tortious interference with contract claim would violate section 1821(j) just as surely as if the RTC were enjoined directly. Id. at *9. In so holding, Chief Judge Kelly rejected an argument that was remarkably similar to the one raised by Pyramid here. Chief Judge Kelly wrote: The statute states that the court may not take “any action” to restrain the receiver in its functions or powers. 12 U.S.C. § 1821(j). If an injunction against Bob’s were to be granted, the effect would be to enjoin RTC in its capacity as a receiver, the very result the statute prevents. There seems [to be] no reason to allow a request for injunctive relief to circumvent the express statutory language. Thus, the statute says the court cannot take “any action” to restrain the receiver, and this would apply to granting injunctive relief against Bob’s. Id. (emphasis added); see also Furgatch v. Resolution Trust Corp., 1993 WL 149084, at *2 (N.D.Cal. Apr. 30, 1993) (“Plaintiff contends" }, { "docid": "14193693", "title": "", "text": "for all of the foregoing reasons, this court finds that it lacks jurisdiction under section 1821(j) to grant.the type of relief Pyramid has requested in its fifth cause of action. Accordingly, this court grants Wind River’s motion to dismiss that claim with prejudice as a matter of law. IV. ORDER For the foregoing reasons, and good cause appearing, IT IS HEREBY ORDERED as follows: 1. Wind River’s motion to dismiss with prejudice Pyramid’s fifth cause of action is hereby granted. 2. This order shall serve as the order of the court and no further order need by prepared by counsel. . Western is a failed Phoenix, Arizona thrift. In May, 1990, the RTC was appointed receiver of Western's assets and liabilities, including the 51.84 acre Snow Creek Parcel at issue here. . 16 U.S.C.A. §§ 3501-3510 (West 1988 & Supp. 1994). . At no time during the RFP process did Wind River ever express an interest in becoming Park City's financial partner. . Pyramid claims that it expended more than $170,000 to bring the Snow Creek Parcel into compliance with Park City’s zoning and planning requirements during the eighteen months following its selection as Park City's financial partner, and that a substantial portion of those funds were spent to alleviate environmental damage caused by leaking petroleum at Wind River's gas station. . This offer was later revised downward to $1.7 million to compensate Pyramid for the estimated cost of alleviating environmental damage on the property. . Apparently, this was the first time that Wind River had ever declared an interest in exercising its rights under the 1965 lease agreement. . That same agreement also stated that Wind River’s contamination of its gas station site was a breach of the 1965 lease under which it claimed its right of first refusal. . Wind River’s special warranty deed provides, in part: Grantor hereby covenants with Grantee that Grantor will forever defend Grantee against claims of all persons claiming by, through, or under Grantor. See Special Warranty Deed, Doc. No. 00400773, Book No. 00794, Pg. No. 00499005 (on file with the Summit County," }, { "docid": "14193695", "title": "", "text": "Utah Recorder). . Pyramid's first and second causes of action state claims against Wind River for intentional interference with prospective economic relations and intentional interference with present economic relations respectively. See Pyramid's Complaint, ¶¶ 43-52. Pyramid’s third cause of action states a claim against Wind River for injurious falsehoods. Id. at ¶¶ 53-58. Neither Wind River nor the RTC challenges the viability of these causes of action at the present time. . As is more fully discussed infra, section 1821(j) prevents a court from granting a litigant any form of relief which might \"restrain or affect” the RTC in the exercise of its powers or functions as a receiver. See 12 U.S.C.A. § 1821© (West 1988). . As noted supra, Pyramid's fourth cause of action requested that the RTC’s sale of the Snow Creek Parcel to Wind River be rescinded and that the RTC be ordered to sell the parcel to Pyramid. Such a remedy clearly violates the statutory mandate of section 1821(j). See, e.g., Carney v. Resolution Trust Corp., 19 F.3d 950, 956-58 (5th Cir.1994) (holding that section 1821(j) deprives a district court of jurisdiction to issue declaratory and injunctive relief against the RTC); Ward v. Resolution Trust Corp., 996 F.2d 99, 104 (5th Cir.1993) (per curiam) (holding that section 182 l(j) bars a district court from enjoining or rescinding a sale by the RTC of the assets of a failed thrift). . Because of the disposition of this issue, the court need not determine whether the RTC should be allowed to intervene in this case or whether Wind River's “factual predicate/res judicata” argument also bars Pyramid from litigating its fifth cause of action. . Section 1821(j) originally applied solely to the FDIC. However, when Congress created the RTC in 1989, it gave the RTC the same rights and powers as those possessed by the FDIC under section 1821(j). See 12 U.S.C.A. § 1441a(b)(4) (West 1988); United Liberty Life Ins. Co. v. Ryan, 985 F.2d 1320, 1328 (6th Cir.1993). . Indeed, Pyramid even admits in its opposition papers that under section 1821(j), \"‘courts are generally not permitted to enjoin" }, { "docid": "14193682", "title": "", "text": "accepted” by the RTC. See Pyramid’s Complaint, ¶¶ 61-62. Pyramid’s fifth cause of action asks this court for preliminary and permanent injunctive relief “[preventing defendant Wind River from taking any action to make any physical changes, alterations, modifications, or improvements to the Snow Creek Parcel,” and “[Requiring defendant Wind River to transfer to plaintiff ... title to the Snow Creek Parcel.” Id. at ¶ 65. On June 27, 1994, the RTC filed both a motion to intervene and a motion to dismiss Pyramid’s fourth and fifth causes of action on the ground that the relief sought by Pyramid in those counts would “restrain or affect” the RTC in violation of 12 U.S.C.A. § 1821Q) and the jurisdictional bar thereunder. Soon thereafter, on July 8, 1994, Wind River filed a motion to dismiss Pyramid’s fourth and fifth causes of action on the same ground. Subsequently, on July 27,1994, Pyramid and Wind River stipulated to the dismissal of Pyramid’s fourth cause of action “with prejudice and on its merits” because of a belief by the parties that the relief requested therein would violate section 1821(j). This court then signed an order dismissing with prejudice Pyramid’s fourth cause of action on August 13, 1994. Wind River now argues that, in addition to its section 1821(j) argument noted supra, Pyramid’s fifth cause of action should be dismissed for two additional reasons. First, Wind River argues that because the factual basis of Pyramid’s fourth and fifth causes of action are identical, Pyramid’s dismissal of its fourth cause of action also “jettisoned the legal basis for the injunctive relief requested in its Fifth Cause of Action.” See Wind River’s Reply Mem. in Supp. of Wind River’s Mot. Dismiss Pl.’s Fourth and Fifth Causes of Action at 2-3. Second, Wind River argues that because Pyramid agreed to the dismissal of its fourth cause of action “with prejudice and upon its merits,” Pyramid is also barred from litigating its fifth cause of action under the doctrine of res judicata. Id. at 3-5. II. STANDARD OF REVIEW In determining whether to grant a motion to dismiss for failure to" }, { "docid": "14193691", "title": "", "text": "that section 1821(j) is inapplicable in this case because he is attempting to enjoin Homefed and the trustee who is conducting the sale, not the RTC. However, enjoining these parties indirectly enjoins the RTC, which a district court has no power to do”). In this case, the RTC has already sold the Snow Creek Parcel to Wind River and Pyramid’s fifth claim for relief would now rescind that deal in its entirety and order Wind River to sell the property to Pyramid. Such relief would undoubtedly “restrain or affect” the RTC in the performance of its statutory duties just as surely as the cases mentioned above. Accordingly, this court is without power to order such a transaction. Finally, to read section 1821(j) as narrowly as Pyramid suggests would violate the clear intent of Congress in enacting the statute. As is abundantly clear from its legislative history, section 1821(j) is “but part of a broader scheme enacted to allow the RTC expeditiously to wind up the affairs of defunct savings and loan institutions without judicial interference.” See Volges, 32 F.3d at 52. If this court allows Pyramid to proceed with its fifth cause of action in this case, that congressional scheme would surely be violated. For example, because the RTC gave Wind River a special warranty deed when it transferred to it the Snow Creek Parcel, it is likely that Wind River would require the RTC to defend that deed in any action where a party, such as Pyramid does here, seeks to challenge Wind River’s title. Such a result would by definition “restrain or affect” the RTC in violation of section 1821(j), as it would entrench the RTC in expensive and time-consuming litigation at the expense of fulfilling its statutory duties. Similarly, if this court were to entertain Pyramid’s fifth claim for relief in this ease, then future transactions might be unduly “chilled” as potential bidders of RTC assets might be wary of having the very type of relief imposed on them that Pyramid seeks to impose on Wind River now. This the court is not prepared to allow. Thus," }, { "docid": "14193685", "title": "", "text": "requested in Pyramid’s fifth cause of action. For the reasons discussed below, the court finds that such jurisdiction is indeed lacking, and accordingly grants Wind River’s motion to dismiss Pyramid’s fifth claim for relief. When Congress enacts a statute prohibiting a federal court from granting a certain type of remedy, that limitation is jurisdictional. See Rosewell v. LaSalle Nat’l Bank, 450 U.S. 503, 522, 101 S.Ct. 1221, 1234, 67 L.Ed.2d 464 (1981) (holding that prohibitions against enjoining or restraining IRS assessments in the federal Tax Injunction Act constitute limitations on federal district court jurisdiction). In this case, Wind River claims that the equitable relief Pyramid seeks in its fifth cause of action has been prohibited by Congress pursuant to 12 U.S.C.A. § 1821(j), and that this court therefore lacks jurisdiction to entertain it under the authority cited above. Section 1821(j) provides: (j) Limitation on court action Except as provided in this section, no court may take any action, except at the request of the Board of Directors by regulation or order, to restrain or affect the exercise of powers or junctions of the Corporation as a conservator or a receiver. 12 U.S.C.A. § 1821 (j) (West 1988) (emphasis added). Clearly, the disposition of a failed thrift’s assets, like the RTC’s sale of the Snow Creek Parcel to Wind River in this case, is one of the quintessential statutory powers of the RTC as a receiver. See id. § 1821(d)(2)(E) (giving the RTC the express power to “realize upon the assets of the institution”); Ward v. Resolution Trust Corp., 996 F.2d 99, 104 (5th Cir.1993) (per curiam) (holding that the “sale of property acquired by the RTC from a failed institution, or administered by the RTC as conservator or receiver of such an institution, is beyond cavil a statutory power and function of the RTC”). Equally clear is that section 1821(j) prohibits a federal court from granting a party any sort of equitable relief that would directly “restrain or affect” the RTC in carrying out its statutory powers. See, e.g., Carney v. Resolution Trust Corp., 19 F.3d 950, 956-58 (5th Cir.1994)" }, { "docid": "14193697", "title": "", "text": "any actions the RTC takes in its role as receiver or conservator.’ ” See Pyramid's (Substituted) Mem. in Opp'n to Mot. to Intervene at 10 (quoting Gross v. Bell Sav. Bank PA SA, 974 F.2d 403, 406 (3d Cir.1992)). . Pyramid's argument, pared to its basics, seems to be this: because Pyramid seeks injunctive relief against Wind River and not the RTC, such relief could not \"restrain or affect\" the RTC as a receiver and therefore could not violate section 1821(j). . Indeed, section 1821(d)(13)(C) of the same legislation prohibits the federal courts from attaching or executing upon the RTC’s assets. See 12 U.S.C.A. § 1821(d)(13)(C) (West 1988). Similarly, section 1825(b)(2) prohibits the federal courts from either foreclosing or imposing liens upon the RTC’s property. Id. § 1825(b)(2). . Pyramid argues that such a result is illusory here because \"[n]either the integrity of RTC’s title nor its ability to transfer that title are at stake.” See Pyramid's (Substituted) Mem. in Opp’n to Mot. to Intervene at 18. Pyramid's argument overlooks the fact that, while the RTC might indeed be free from any liability to Wind River under its special warranty deed, the RTC will be forced to expend countless resources to establish that proposition in court. . The court notes that Pyramid is not left without a remedy as a result of the decision issued today. For example, Pyramid remains free to prosecute the tort claims it has brought against Wind River in its first, second, and third causes of action. Similarly, Pyramid remains free to assert a damages claim against the RTC as part of the normal administrative claims process. See Ward v. Resolution Trust Corp., 996 F.2d 99, 104 (5th Cir.1993) (per curiam) (discussing this remedy)." }, { "docid": "14193687", "title": "", "text": "(holding that section 1821(j) prevents a court from considering claims for declaratory and injunctive relief against the RTC); Ward, 996 F.2d at 104 (holding that section 1821(j) prevents a court from either enjoining or rescinding the RTC’s sale of property acquired from a failed thrift); United, Liberty Life Ins. Co. v. Ryan, 985 F.2d 1320, 1329 (6th Cir.1993) (holding that section 1821(j) prohibits a court from rescinding the RTC’s transfer of the assets of a failed thrift). Pyramid does not quibble with these authorities in opposing Wind River’s motion to dismiss here. Indeed, Pyramid’s argument in this case centers not on the concededly broad sweep of section 1821(j), but on whether section 1821(j) applies to the relief requested in Pyramid’s fifth cause of action at all. As noted supra, Pyramid’s fifth cause of action seeks injunctive relief requiring Wind River to transfer title in the Snow Creek Parcel to Pyramid in exchange for the purchase price to which Pyramid and the RTC had previously agreed. See Pyramid’s Complaint at ¶ 65. Pyramid contends that this relief does not violate section 1821(j)’s “restraining or affecting” language in any way, because “[hjaving already liquidated the property that is the subject of this litigation, and having realized the profits therefrom, RTC has entirely performed its role as receiver and has no remaining interest in the property.” See Pyramid’s (Substituted) Mem. in Opp’n to Mot. to Intervene at 2. The court must reject Pyramid’s narrow interpretation of section 1821(j), for several reasons. First, the plain language of the statute does not allow for such a limited reading. It provides that “no court may take any action ... to restrain or affect the exercise of powers or functions of the Corporation as a conservator or a receiver.” 12 U.S.C.A. § 1821(j) (West 1988) (emphasis added). Such broad and all-encompassing language evidences, in the court’s view, an intent by Congress to prohibit any interference with the RTC as a receiver — either directly or indirectly. Thus, to the extent that Pyramid attempts to confine section 1821(j)’s reach to only those cases where the RTC is directly" }, { "docid": "14193694", "title": "", "text": "Creek Parcel into compliance with Park City’s zoning and planning requirements during the eighteen months following its selection as Park City's financial partner, and that a substantial portion of those funds were spent to alleviate environmental damage caused by leaking petroleum at Wind River's gas station. . This offer was later revised downward to $1.7 million to compensate Pyramid for the estimated cost of alleviating environmental damage on the property. . Apparently, this was the first time that Wind River had ever declared an interest in exercising its rights under the 1965 lease agreement. . That same agreement also stated that Wind River’s contamination of its gas station site was a breach of the 1965 lease under which it claimed its right of first refusal. . Wind River’s special warranty deed provides, in part: Grantor hereby covenants with Grantee that Grantor will forever defend Grantee against claims of all persons claiming by, through, or under Grantor. See Special Warranty Deed, Doc. No. 00400773, Book No. 00794, Pg. No. 00499005 (on file with the Summit County, Utah Recorder). . Pyramid's first and second causes of action state claims against Wind River for intentional interference with prospective economic relations and intentional interference with present economic relations respectively. See Pyramid's Complaint, ¶¶ 43-52. Pyramid’s third cause of action states a claim against Wind River for injurious falsehoods. Id. at ¶¶ 53-58. Neither Wind River nor the RTC challenges the viability of these causes of action at the present time. . As is more fully discussed infra, section 1821(j) prevents a court from granting a litigant any form of relief which might \"restrain or affect” the RTC in the exercise of its powers or functions as a receiver. See 12 U.S.C.A. § 1821© (West 1988). . As noted supra, Pyramid's fourth cause of action requested that the RTC’s sale of the Snow Creek Parcel to Wind River be rescinded and that the RTC be ordered to sell the parcel to Pyramid. Such a remedy clearly violates the statutory mandate of section 1821(j). See, e.g., Carney v. Resolution Trust Corp., 19 F.3d 950, 956-58 (5th" }, { "docid": "14193696", "title": "", "text": "Cir.1994) (holding that section 1821(j) deprives a district court of jurisdiction to issue declaratory and injunctive relief against the RTC); Ward v. Resolution Trust Corp., 996 F.2d 99, 104 (5th Cir.1993) (per curiam) (holding that section 182 l(j) bars a district court from enjoining or rescinding a sale by the RTC of the assets of a failed thrift). . Because of the disposition of this issue, the court need not determine whether the RTC should be allowed to intervene in this case or whether Wind River's “factual predicate/res judicata” argument also bars Pyramid from litigating its fifth cause of action. . Section 1821(j) originally applied solely to the FDIC. However, when Congress created the RTC in 1989, it gave the RTC the same rights and powers as those possessed by the FDIC under section 1821(j). See 12 U.S.C.A. § 1441a(b)(4) (West 1988); United Liberty Life Ins. Co. v. Ryan, 985 F.2d 1320, 1328 (6th Cir.1993). . Indeed, Pyramid even admits in its opposition papers that under section 1821(j), \"‘courts are generally not permitted to enjoin any actions the RTC takes in its role as receiver or conservator.’ ” See Pyramid's (Substituted) Mem. in Opp'n to Mot. to Intervene at 10 (quoting Gross v. Bell Sav. Bank PA SA, 974 F.2d 403, 406 (3d Cir.1992)). . Pyramid's argument, pared to its basics, seems to be this: because Pyramid seeks injunctive relief against Wind River and not the RTC, such relief could not \"restrain or affect\" the RTC as a receiver and therefore could not violate section 1821(j). . Indeed, section 1821(d)(13)(C) of the same legislation prohibits the federal courts from attaching or executing upon the RTC’s assets. See 12 U.S.C.A. § 1821(d)(13)(C) (West 1988). Similarly, section 1825(b)(2) prohibits the federal courts from either foreclosing or imposing liens upon the RTC’s property. Id. § 1825(b)(2). . Pyramid argues that such a result is illusory here because \"[n]either the integrity of RTC’s title nor its ability to transfer that title are at stake.” See Pyramid's (Substituted) Mem. in Opp’n to Mot. to Intervene at 18. Pyramid's argument overlooks the fact that, while the" }, { "docid": "14193681", "title": "", "text": "agreement. On or about December 28, 1993, the RTC informed Pyramid that Wind River had purchased the entire 51.84 acre Snow Creek Parcel from the RTC. Subsequently, on March 17,1994, the RTC conveyed the property to Wind River via a special warranty deed. That deed, which was duly recorded in the Summit County, Utah Recorder’s Office on March 23, 1994, requires the RTC to appear and defend Wind River against any challenge to its title in the Snow Creek Parcel. On April 22, 1994, Pyramid sued Wind River in this court asserting five causes of action against Wind River arising out of the aforementioned facts. Pyramid’s fourth and fifth causes of action are now the subject of this memorandum decision and order. Pyramid’s fourth cause of action seeks a declaration by this court that the RTC’s sale of the Snow Creek Parcel to Wind River is “void and of no legal force and effect,” and that Pyramid is “entitled to consummate its purchase of the Snow Creek Parcel under the terms previously offered to and accepted” by the RTC. See Pyramid’s Complaint, ¶¶ 61-62. Pyramid’s fifth cause of action asks this court for preliminary and permanent injunctive relief “[preventing defendant Wind River from taking any action to make any physical changes, alterations, modifications, or improvements to the Snow Creek Parcel,” and “[Requiring defendant Wind River to transfer to plaintiff ... title to the Snow Creek Parcel.” Id. at ¶ 65. On June 27, 1994, the RTC filed both a motion to intervene and a motion to dismiss Pyramid’s fourth and fifth causes of action on the ground that the relief sought by Pyramid in those counts would “restrain or affect” the RTC in violation of 12 U.S.C.A. § 1821Q) and the jurisdictional bar thereunder. Soon thereafter, on July 8, 1994, Wind River filed a motion to dismiss Pyramid’s fourth and fifth causes of action on the same ground. Subsequently, on July 27,1994, Pyramid and Wind River stipulated to the dismissal of Pyramid’s fourth cause of action “with prejudice and on its merits” because of a belief by the parties that" }, { "docid": "299228", "title": "", "text": "actions would certainly restrain or affect the FDIC’s powers to deal with the property it is charged with disbursing. “[A]n action can ‘affect’ the exercise of powers by an agency without being aimed directly at [the agency].” Hindes v. FDIC, 137 F.3d 148, 160 (3d Cir.1998). In Hindes, the Third Circuit held that the protections afforded to receivers in § 1821(j) extend to third parties. In rejecting the argument that § 1821(j) does not apply to a non-FDIC third party, the court stated, “the statute, by its terms, can preclude relief even against a third party, including the FDIC in its corporate capacity, where the result is such that the relief ‘restraints] or affect[s] the exercise of powers or functions of the [FDIC] as a conservator or a receiver.’ ” Id. (alterations in original) (quoting 12 U.S.C. § 1821(j)). Cf. Telematics Int’l, Inc. v. NEMLC Leasing Corp., 967 F.2d 703, 707 (1st Cir.1992) (holding that § 1821(j) applied to bar a claim seeking to attach a lien to a certificate of deposit in which the FDIC had a security interest because the attachment would ultimately have an effect upon the FDIC’s exercise of its powers as receiver). We agree with the reasoning in Hindes and find that Dittmer’s request for injunctive relief is barred by § 1821(j), even though the FDIC is no longer the holder of the note, because the relief requested — a declaration that the note is void as to Dittmer — affects the FDIC’s ability to function as receiver in the case. The “disposition of a failed [bank’s] assets ... is one of the quintessential statutory powers of the [FDIC] as a receiver.” Pyramid Constr. Co. v. Wind River Petroleum, Inc., 866 F.Supp. 513, 517 (D.Utah 1994). If an asset sold to a third-party purchaser is subject to dilution in a later judicial proceeding, there would be a substantial chilling effect upon the receiver’s ability to perform its statutory functions. In Pyramid, the court rejected the argument that § 1821(j) did not apply because a plaintiff sought relief against the receiver’s successor. The plaintiffs argument in" }, { "docid": "23561195", "title": "", "text": "of . 1989 (“FIR-REA”) establishes a comprehensive scheme for conservatorships and receiverships of insured financial institutions. See Richard B. Gallagher, Annotation, Construction and Application of Anti-Injunction Provision of Financial Institutions Reform, Recovery, and Enforcement Act (FIRREA) (12 U.S.C.A. § 1821(j)), 126 A.L.R. Fed. 43, 53 (1995). The FDIC may be appointed as a conservator or receiver of an insured financial institution if, inter alia, the institution becomes insolvent. See 12 U.S.C. § 1821(c); Gallagher, supra, at 53. FIRREA also includes an anti-injunction provision intended to permit the FDIC to perform its duties as conservator or receiver promptly and effectively without judicial interference. See 12 U.S.C. § 1821(j); Gallagher, supra, at 54.. Section 1821(j) provides in relevant part that [ejxcept as provided .in this section, no court may take any action, except at the request of the Board of Directors by regulation or order, to restrain or affect the exercise of powers or functions of the Corporation as a conservator or a receiver. 12 U.S.C. § 1821(j). In making the determinations and issuing the Notification, the FDIC clearly was acting in its corporate capacity. Appellants argue that the district court erred in dismissing the APA claim based upon section 1821(j) because the section does not preclude judicial intervention where the FDIC acts in its corporate capacity. Thus, appellants would have us interpret section 1821(j) to preclude only those orders directly against the FDIC as receiver or as conservator. We find, however, that the plain language of the statute is not so limited. Rather, the statute, by its terms, can preclude relief even against a third party, including the FDIC in its corporate capacity, where the result is such that the relief “restraints] or affect[s] the exercise of powers or functions of the [FDIC] as a conservator or a receiver.” 12 U.S.C. § 1821(j) (emphasis added). After all, an action can “affect” the exercise of powers by an agency without being aimed directly at it. We note that our holding is not inconsistent with our decision in Rosa v. RTC, 938 F.2d 383, 397, 400 (3d Cir.1991). In Rosa, we did not" } ]

[ { "docid": "16070601", "title": "", "text": "to the Court’s in personam jurisdiction over Gunstock. The plaintiffs failed to acknowledge that their discovery opportunity had lapsed without any evident attempt made by the plaintiffs to carry their burden of proof on the jurisdictional issue. Though plaintiffs had been afforded an opportunity to produce affirmative proof of jurisdictional prerequisites, they did not take advantage of this opportunity. Even if the plaintiffs had submitted affirmative proof of the defendant’s transaction of business in Massachusetts sufficient to satisfy § 3(a) of the long-arm statute, plaintiffs have failed to establish how the defendant’s alleged in-state activity gave rise to Heather Canning’s injury. Under the Massachusetts long-arm statute, the plaintiffs must establish not only that the defendant transacts business in state, but that the cause of action arises from the in-state activity. Marino v. Hyatt Corp., 793 F.2d 427, 428 (1st Cir.1986); Morse v. Walt Disney World Co., 675 F.Supp. at 43. The allegations advanced in plaintiffs’ memorandum opposing the defendant’s motion to dismiss do not establish a nexus between Gunstock’s alleged activities in Massachusetts and Heather Canning’s personal injury sufficient to satisfy the requirements of the long-arm statute. See, e.g., Gray v. O’Brien, 777 F.2d at 867 (plaintiff failed to establish how the defendant’s advertising in Massachusetts was related to his ski injury in New Hampshire). Based on the above, the plaintiffs have failed to carry the requisite burden regarding this Court’s in personam jurisdiction under the Massachusetts long-arm statute. It is therefore unnecessary to consider whether constitutional due process constraints would be satisfied by this Court’s exercise of personal jurisdiction over the defendant. It is also not necessary to consider the defendant’s alternative request for a change of venue. Accordingly, the defendant’s motion to dismiss for lack of personal jurisdiction should be granted. Order accordingly. . The plaintiffs also argue that this Court has personal jurisdiction over Gunstock under Mass.Gen.L.Ann. ch. 223 § 38 (West 1985). Plaintiffs, however, have not established facts necessary to support a finding that Gunstock’s activities in Massachusetts closely approximate the regular conduct of a domestic corporation. Compare Howse v. Zimmer Mfg. Co., Inc., 757 F.2d" } ]

[ { "docid": "8288977", "title": "", "text": "was abusing him at the time. Nor does he allege that any of them wrote a letter or did anything else concerning Curtis. III. INDIVIDUAL DEFENDANTS A. Legal Standard Where, as here, it has been challenged, Pettengill has the burden of show ing that the court has personal jurisdiction over each of the defendants. See McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Ticketmaster-New York v. Alioto, 26 F.3d 201, 207 n. 9 (1st Cir.1994); Tidgewell v. Loon Mountain Recreation Corp., 820 F.Supp. 630, 631 (D.Mass.1993). Since none of the Individual Defendants are alleged to be residents of Massachusetts, to own property here, or to have otherwise consented to the court’s jurisdiction, personal jurisdiction is only appropriate if the defendants fall within the Massachusetts long-arm statute, Mass. Gen. Laws ch. 223A, § 3, and exercising jurisdiction comports with the requirements of due process. See, e.g., World Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). On a motion to dismiss for lack of personal jurisdiction, courts most commonly apply a “prima facie” standard, under which “the plaintiff [must] proffer[] evidence that, if credited, is enough to support findings of all facts essential to personal jurisdiction.” Boit v. Gar-Tec Prods., Inc., 967 F.2d 671, 675 (1st Cir. 1992). “The prima facie showing of personal jurisdiction must be based on evidence of specific facts set forth in the record. The plaintiff must go beyond the pleadings and make affirmative proof.” Id. (citations and quotations omitted). The court must not act as a factfinder, instead “accept[ing] properly supported proffers of evidence by a plaintiff as true.” Id. However, it need not “credit conclusory allegations or draw farfetched inferences.” Ticketmaster-New York, 26 F.3d at 203. The parties implicitly agree that the prima facie standard should be employed to decide the Individual Defendants’ motions to dismiss and address it in their submissions. B. Long-Arm Statute While the parties focus their arguments primarily on the due process inquiry, that issue only becomes relevant if a statute authorizes personal jurisdiction. See" }, { "docid": "10719650", "title": "", "text": "not apply to limited liability companies. 10. Use of the Companies for Transaction of the Dominant Member Although limited liability companies do not have shareholders, the Plaintiffs assert that the Debtor repeatedly used Su Casa and Your Home for his own personal interests and activities, “many of which went beyond ‘any reasonable business usage.’ ” They point to the $13,080 spent by Su Casa for the Debtor to attend the Online Day Trading Academy which enabled the Debtor to make over $93,000 in 2009. In addition, the Plaintiffs rely upon the Debt- or’s use of Su Casa’s funds to pay for travel in Peru, Equador, and Colombia, as well as trips to Loon Mountain, Wachusett Mountain Ski Area and the Arlington The-atre. They add that the Debtor also used the companies “as piggy banks for his own personal expenses,” resulting in payments by the limited liability companies for his cell phone, Massachusetts General Hospital parking fees, pediatric bills, numerous restaurant and household expenses, charitable contributions to children’s soccer teams, sports equipment at Sports Authority, and New Balance shoes. They add that he used company credit cards for personal expenses and took loans from the company, not to mention use of the Yaris automobile. The Debtor contends that there was no evidence that Your Home and Su Casa were used for transactions for the benefit of their members. He states that he did not use the names of the companies for personal purposes and he established that the trip to South America was for business, as were the trips to New Hampshire and Arizona. In his view, except in a few instances, all expenditures had a legitimate business purpose, including the South American trip which was to explore business opportunities. 11.Use of the Corporation in Promoting Fraud The Plaintiffs argue that Su Casa and Your Home Mortgage were formed “with the purpose of targeting and placing low-income, limited-English speaking Latinos into homes with high cost mortgages they were unable to afford.” They note that when the Debtor was asked at his deposition, which was read into the record, whether mortgage brokers" }, { "docid": "8288976", "title": "", "text": "post-traumatic stress disorder, obsessive-compulsive disorder, and bipolar disorder. ¶¶ 93-95. Not until 2006, when he was undergoing therapy, did he realize that Curtis had sexually abused and harassed him, and that his psychiatric injuries were due to that abuse. ¶¶ 97-98. Apart from the allegations in the Amended Complaint, Pettengill states in his opposition to the Individual Defendants’ motions to dismiss that while the Boy Scouts have refused to give him access to any confidential files, including that of Curtis, he has located 59 confidential files on molesters in Massachusetts. They include 164 letters sent by Ernst to scout leaders in Massachusetts and 84 letters received from them between 1971 and 1991. Pettengill alleges that Ernst engaged in this correspondence “in consultation with Park and Anglim.” PL Opp. to Ind. Defs. Mot. to Dismiss at 2. He supports these allegations with redacted examples of confidential files, affidavits, deposition transcripts of the Individual Defendants from other cases, and other materials. Pettengill does not, however, allege that any of the Individual Defendants had actual knowledge that Curtis was abusing him at the time. Nor does he allege that any of them wrote a letter or did anything else concerning Curtis. III. INDIVIDUAL DEFENDANTS A. Legal Standard Where, as here, it has been challenged, Pettengill has the burden of show ing that the court has personal jurisdiction over each of the defendants. See McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Ticketmaster-New York v. Alioto, 26 F.3d 201, 207 n. 9 (1st Cir.1994); Tidgewell v. Loon Mountain Recreation Corp., 820 F.Supp. 630, 631 (D.Mass.1993). Since none of the Individual Defendants are alleged to be residents of Massachusetts, to own property here, or to have otherwise consented to the court’s jurisdiction, personal jurisdiction is only appropriate if the defendants fall within the Massachusetts long-arm statute, Mass. Gen. Laws ch. 223A, § 3, and exercising jurisdiction comports with the requirements of due process. See, e.g., World Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). On a motion to" }, { "docid": "7426726", "title": "", "text": "analysis does not end if the literal requirements of the long-arm statute are met; that is, an assertion of jurisdiction must also fall within the limits of the Constitution. Thus, meeting the conditions of the long-arm statute is a prerequisite to moving on to the constitutional due process considerations. Therefore, I must determine first whether exercising jurisdiction over MGM satisfies the Massachusetts long-arm statute, i.e., whether the claims in this case arise from MGM’s business activities in Massachusetts. WTC claims that its cause of action satisfies the first prong of the long-arm statute which states that, “[a] court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action in law or equity arising from the person’s (a) transacting business in this commonwealth...” Mass.Gen.Laws, c. 223A, § 3(a) (Emphasis added). In looking at the facts of this ease, I find that MGM “transacted business” and that such transaction of business gave rise to WTC’s claims against MGM such that the Massachusetts long-arm statute is satisfied. In short, this case involves a dispute over the contract between WTC and MGM and alleged misrepresentations made by MGM employees when WTC can-celled the convention. To satisfy the two requirements of § 3(a), WTC must show that 1) MGM transacted business in Massachusetts, and 2) WTC’s claim arose from MGM’s transaction of such business. Tatro v. Manor Care, Inc., 416 Mass. 763, 767, 625 N.E.2d 549, 551 (1994). WTC claims that MGM transacted business in Massachusetts for purpose of the long-arm statute by negotiating the terms of the contract with WTC, by soliciting from WTC future convention business and information regarding other Massachusetts businesses through representatives physically present in the Commonwealth, and by advertising within the Commonwealth. (# 8 at 7). WTC first alleges that MGM transacted business in Massachusetts for purposes of the long-arm statute by actively negotiating the terms of the contract with WTC. (# 8 at 8, Bardani Aff. at ¶¶ 12-25). WTC points specifically to at least four telephone calls, five emails, and three faxes sent by MGM to WTC in" }, { "docid": "8099936", "title": "", "text": "whether personal, private, or commercial. Bond Leather Co., Inc. v. Q.T. Shoe Mfg. Co., Inc. 764 F.2d 928, 931 (1st Cir.1985). As a result, this requirement is relatively easy to satisfy. In Bond Leather Co., for instance, an Ohio corporation guaranteed payment for credit extended by a Massachusetts corporation to a New Jersey corporation. In the course of this transaction, the Ohio corporation sent four letters and made one telephone call to the Massachusetts corporation. The First Circuit Court of Appeals held that this activity was sufficient to satisfy the statutory requirement of “transacting any business” in the state. Bond Leather Co., 764 F.2d at 932. In this case, the defendant sent information to travel agents in the state. The defendant accepted reservations and payments from the plaintiff in Massachusetts. The defendant also sent correspondence to the plaintiffs’ home in Massachusetts, including billing invoices, written confirmations, and promotional literature. These purposeful acts are sufficient to satisfy the requirement that the plaintiff transact business within the state. See also Knox v. Walt Disney World Co., No. 82-2980-K, slip op. (D.Mass. Feb. 15,1983); Marsella v. Walt Disney World Co., No. 84-3045-W, slip op. (D.Mass. Sept. 30, 1985). A more difficult question is presented in determining whether the plaintiff’s cause of action arises from the defendant’s in-state activities. In Marino v. Hyatt Corp., 793 F.2d 427 (1st Cir.1986), the plaintiff, a Massachusetts resident, was injured when she fell in a hotel operated by the defendant in Hawaii. The defendant clearly met the requirement of transacting business in Massachusetts, since the defendant operated several hotels in Massachusetts, regularly advertised and solicited business within the commonwealth, and contracted with the plaintiff in Massachusetts to reserve a room for her. Id. at 428. The court went on to note, however, that the plaintiff’s injuries did not arise from any of these activities. Id. at 430. In doing so, the court distinguished between cases for breach of contract and cases for negligence. While a breach of contract action could be said to arise from a contract to reserve a hotel room, a personal injury action does not." }, { "docid": "8099938", "title": "", "text": "Id. at 430. Compare Hahn v. Vermont Law School, 698 F.2d 48 (1st Cir.1983) (the “arising from” requirement is satisfied when the cause of action is for breach of contract and the business transacted was instrumental in the formation of that contract). The court noted that the reservation contract was immaterial to the plaintiff's slip-and-fall case. Marino, 793 F.2d at 430. This case is similar to Marino. The instate transactions on which jurisdiction is based were primarily for the purposes of soliciting business and reserving a room for the plaintiff. The connection between these transactions and the events which led to the plaintiffs’ injuries is too tenuous to say that the injuries “arose out of” the transactions. Because the plaintiffs cause of action for negligence does not arise out of the defendant’s transactions in Massachusetts, this court may not exercise jurisdiction under Mass.Gen.L. ch. 223A § 3(a). Accordingly, the defendant’s motion to dismiss for lack of jurisdiction should be granted. Order accordingly. . While these considerations are separate and distinct in theory, they often merge in practice. The Massachusetts Supreme Judicial Court has noted that the statute asserts jurisdiction to the limits allowed by the constitution. Good Hope Industries, Inc. v. Ryder Scott Co., 378 Mass. 1, 6, 389 N.E.2d at 79 (1979). Nevertheless, the exercise of jurisdiction under the statute must fail if the plaintiff does not satisfy at least one of the statutory requirements. Id. at 6, 389 N.E.2d at 79-80. . In addition to the activities listed above, the defendant also licensed other corporations to use its name in their advertising campaigns within Massachusetts. There is some question as to whether the licensing of others to use one’s name in an advertising campaign that is neither controlled nor paid for by the defendant constitutes transacting business in Massachusetts See Droukas v. Divers Training Academy, Inc., 375 Mass. 149, 153, 376 N.E.2d 548, 550 (1978) (there must be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum state). But see Knox v. Walt Disney World Co., No. 82-2980-K, slip" }, { "docid": "22599644", "title": "", "text": "is virtually no human activity within the land it drains except skiing at the privately owned Loon Mountain Ski Area. New Hampshire Department of Environmental Services (“NHDES”) regulations classify Loon Pond as a Class A waterbody, protected by demanding water quality standards under a variety of criteria, see N.H.Code Admin. R. Env-Ws 432.03, and as an Outstanding Resource Water (“ORW’), protected against any measurable long-term degradation by the State’s anti-degradation rules, see id. 437.06; 40 C.F.R. § 131.12(a)(3) (1995). It ranks in the upper 95th percentile of all lakes and ponds in northern New England for low levels of phosphorus, which results in limited plant growth and therefore high water clarity and higher total biological production. The pond súpports a rich variety of life in its ecosystem. Loon Pond also constitutes a major source of drinking water for the town of Lincoln 1,600 feet below it. A dam across the outlet of the Pond regu lates the flow of water from the Pond to Lincoln’s municipal reservoir. Loon Corp., defendant-intervenor herein, owns the Loon Mountain Ski Area, which has operated since the 1960s not far from Loon Pond. Prior to the permit revision that gave rise to this litigation, Loon Corp. held a special use permit to operate on 785 acres of WMNF land. That permit allowed Loon Corp. to draw water (“drawdown”) for snow-making from Loon Pond, as well as from the East Branch of the Pemigewasset River (“East Branch”) and from nearby Boyle Brook. In order to use water from Loon Pond, Loon Corp. also needed authorization from the Town of Lincoln and the State of New Hampshire. Beginning in 1974, Loon Corp. was authorized to pump snowmaking water from Loon Pond down to 18 inches below full level. A 1988 amendment to this agreement permitted drawdown below the 18-inch level on a case-by-case basis. Combined uses by Lincoln and Loon Corp. during the period governed by these agreements typically caused four- to six-foot fluctuations in the level of Loon Pond. In addition to being used as a source of water for snowmaking, Loon Pond has been the" }, { "docid": "8099935", "title": "", "text": "satisfied before jurisdiction may be asserted. When the defendant claims that it is not subject to jurisdiction in Massachusetts, the plaintiff has the burden of establishing facts sufficient to support the conferral of jurisdiction over the defendant. Droukas v. Divers Training Academy, Inc., 375 Mass. 149, 151 376 N.E.2d 548, 549 (1978); Lizotte v. Canadian John-Manville Co., Ltd., 387 F.2d 607, 608 (1st Cir.1967). The pertinent part of the Massachusetts long arm statute provides, “A Court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action in law or equity arising from the person’s (a) transacting any business in this commonwealth_” Mass. Gen.L. ch. 223A § 3 (1985). This statute itself requires a two-part analysis: (1) did the defendant engage in any business in Massachusetts; and if so, (2) did the plaintiff's cause of action arise out of that business? Marino v. Hyatt Corp., 793 F.2d 427, 428 (1st Cir.1986). The language “transacting any business” is to be construed broadly, and reaches any purposeful acts, whether personal, private, or commercial. Bond Leather Co., Inc. v. Q.T. Shoe Mfg. Co., Inc. 764 F.2d 928, 931 (1st Cir.1985). As a result, this requirement is relatively easy to satisfy. In Bond Leather Co., for instance, an Ohio corporation guaranteed payment for credit extended by a Massachusetts corporation to a New Jersey corporation. In the course of this transaction, the Ohio corporation sent four letters and made one telephone call to the Massachusetts corporation. The First Circuit Court of Appeals held that this activity was sufficient to satisfy the statutory requirement of “transacting any business” in the state. Bond Leather Co., 764 F.2d at 932. In this case, the defendant sent information to travel agents in the state. The defendant accepted reservations and payments from the plaintiff in Massachusetts. The defendant also sent correspondence to the plaintiffs’ home in Massachusetts, including billing invoices, written confirmations, and promotional literature. These purposeful acts are sufficient to satisfy the requirement that the plaintiff transact business within the state. See also Knox v. Walt Disney World Co., No." }, { "docid": "4003607", "title": "", "text": "that dismissal is required here, because they did not transact sufficient business in Massachusetts to justify personal jurisdiction. Shipley argues, however, that jurisdiction over defendants is proper because, in the course of their employment, defendants made regular trips, telephone calls, and mailings to Massachusetts in order to confer with Shipley personnel. In a diversity case, a federal court has jurisdiction only if a court of the state in which the federal court sits would have jurisdiction. Ealing Corp. v. Harrods Ltd., 790 F.2d 978, 981 (1st Cir.1986); Gray v. O’Brien, 777 F.2d 864, 866 (1st Cir.1985). A Massachusetts court may only exercise personal jurisdiction over a foreign defendant when it is authorized by state statute, and jurisdiction is consistent with due process. Ealing Corp., 790 F.2d at 981. The applicable statute is Mass.Gen.L. ch. 223A, § 3, which provides, in relevant part: A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action in law or equity arising from the person’s (a) transacting any business in this commonwealth; (b) contracting to supply services or things in this commonwealth; (c) causing tortious injury by an act or omission in this commonwealth; (d) causing tortious injury in this commonwealth by an act or omission outside this commonwealth if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this commonwealth.... Mass.Gen.Laws Ann. ch. 223A, § 3 (West 1985). Part (a) of the statute, the “transacting business” clause, is to be construed broadly. Nova Biomedical Corp. v. Moller, 629 F.2d 190, 193-94 (1st Cir.1980). Indeed, the First Circuit has held that mailing four letters and making one phone call to Massachusetts satisfied the “transacting business” requirement of § 3(a). See Bond Leather Co., Inc. v. Q.T. Shoe Mfg. Co., Inc., 764 F.2d 928, 932 (1st Cir.1985). In order for such activity to satisfy the whole of § 3(a), however, the cause of action must have arisen from the transacted business. Marino v. Hyatt Corp.," }, { "docid": "7595950", "title": "", "text": "that Gray did not establish facts which would support the valid exercise of personal jurisdiction under the state long-arm statute, it is unnecessary to reach the question of whether the exercise of jurisdiction under Massachusetts law is consistent with basic constitutional due process requirements. American Freedom Train Foundation v. Spurney, 747 F.2d 1069, 1075 (1st Cir.1984). Gray argues that the court has in personam jurisdiction over Sugarloaf under Mass.Gen.Laws Ann. ch. 223A, ■§ 3(a) which reads: “A court may exercise personal jurisdiction over a person, who directly acts or by an agent, as to a cause of action in law or equity arising from the person’s ... transacting any business in the commonwealth ____” The phrase “transacting any business in the commonwealth” must be read together with the prior phrase “cause of action in law or equity arising from.” Singer v. Piaggio & C., 420 F.2d 679, 681 (1st Cir.1970); see also American Freedom Train, 747 F.2d at 1074; Nova Biomedical, 629 F.2d at 192-93. The question on appeal, therefore, is whether the district court erred in finding that Gray had not established that his injury arose from defendant’s transacting business within the state of Massachusetts. See Hahn, 698 F.2d at 50-51. Although the “transacting of any business” clause should be construed broadly “and applies to any purposeful acts by an individual, whether personal, private, or commercial,” Ross v. Ross, 371 Mass. 439, 358 N.E.2d 437, 439 (1976); Nova Biomedical, 629 F.2d at 193-94, the exercise of jurisdiction under the Massachusetts long-arm statute will nonetheless fail if the cause of action did not arise from defendant’s transaction of business in Massachusetts. Mas Marques v. Digital Equipment Corp., 637 F.2d 24, 28 (1st Cir.1980); compare Hahn, 698 F.2d at 50-51. Here, plaintiff has asserted that Sugarloaf advertised its ski facility in Massachusetts with the intent of attracting potential customers, and that Sugarloaf and plaintiff, as publisher of a regional magazine based in New Hampshire, had a promotional arrangement, independent of any Massachusetts contact, whereby Sugarloaf provided Gray with ski lift tickets in hopes that Gray would publish a favorable article in" }, { "docid": "16070597", "title": "", "text": "MEMORANDUM CAFFREY, Senior District Judge. The plaintiffs, residents of Massachusetts, have brought this negligence action against the Gunstock Area Commission (“Gunstock”), a New Hampshire corporation. Jurisdiction in this case is based on diversity of citizenship. The case is now before the Court on the defendant’s motion to dismiss for lack of personal jurisdiction, pursuant to Fed.R.Civ.P. 12(b)(2). The defendant asks, in the alternative, for a change of venue to the United States District Court for the District of New Hampshire, pursuant to 28 U.S.C. § 1404. On March 7, 1987, the minor plaintiff, Heather Canning, was injured as a result of a fall while skiing on the defendant’s premises in Laconia, New Hampshire. The plaintiffs argue that the injury was caused by defendant’s alleged negligence, including a failure to provide adequate ski instruction and insufficient trail grooming. The defendant points out that the injury occurred exclusively within the state of New Hampshire, and argues that the plaintiffs’ cause of action does not arise out of any business transaction, solicitation, or minimum contacts of the defendant with Massachusetts. The defendant accordingly asks the Court to dismiss plaintiffs’ complaint for lack of personal jurisdiction over Gunstock. In a diversity action where the defendant has challenged personal jurisdiction, the district court must look to the law of the forum state to determine whether the jurisdictional requirements are satisfied. Hahn v. Vermont Law School, 698 F.2d 48, 49 (1st Cir.1983); Morse v. Walt Disney World Co., 675 F.Supp. 42, 43 (D.Mass. 1987). The Massachusetts long-arm statute, Mass.Gen.L.Ann. ch. 223A § 3 (West 1985), imposes restraints on the Court’s exercise of jurisdiction over a non-resident in addition to the due process requirements under the United States Constitution. Gray v. O’Brien, 777 F.2d 864, 866 (1st Cir.1985); Carlson Corp. v. University of Vermont, 380 Mass. 102, 105, 402 N.E.2d 483 (1980). A two-pronged analysis therefore applies: (1) does the long-arm statute authorize jurisdiction over the non-resident defendant, and (2) if so, would the exercise of jurisdiction under the circumstances be consistent with basic due process requirements mandated by the United States Constitution? Morse v. Walt Disney" }, { "docid": "7595946", "title": "", "text": "PER CURIAM. This is a personal injury diversity action in which plaintiff sought damages for injuries he sustained in a ski accident on March 4, 1982, allegedly caused by defendants’ negligent conduct. Plaintiff-appellant, Stephen L. Gray, is a New Hampshire resident. Defendants-appellees are the Sugar-loaf Mountain Corporation (Sugarloaf), a Maine corporation with a principal place of business in Kingfield, Maine, and Michael T. O’Brien, a Massachusetts resident. On February 8, 1985, pursuant to defendant Sugarloaf’s motion under Federal Rule of Civil Procedure 12(b)(2), the district court dismissed the complaint as to Sugarloaf because plaintiff failed to establish in personam jurisdiction over defendant under the Massachusetts long-arm statute, Mass. Gen.Laws Ann. ch. 223A, § 3(a). After denying plaintiff’s motions to reconsider and to transfer the case to the district court in Maine, the court entered final judgment pursuant to Federal Rule of Civil Procedure 54(b). It is from this judgment that Gray appeals. We affirm. There is no dispute over the facts. At the time of the injury, Gray was the pub lisher of a weekly periodical known as the Seacoast Scene which was regularly distributed throughout Essex County, Massachusetts. Gray called a representative of Sugarloaf from his New Hampshire office in reference to a standing promotional invitation which he had received to the effect that if Gray was ever in the vicinity of Sugarloaf, a ski facility in Kingfield, Maine, to “stop by and say hello” or “to call in advance.” After Gray told the Sugarloaf representative that he was interested in skiing there for a week, he was told that he should stop by and see the representative who would reserve ski passes for him. This Gray did. Four days later, while skiing, Gray sustained several fractured neck vertebrae when he was involved in a collision with defendant O’Brien. Although Sugarloaf advertises in the Commonwealth of Massachusetts, notably in the Boston Globe and the Boston Herald, Sugarloaf has never advertised in the Seacoast Scene nor did Gray secure any business or advertisements from Sugarloaf as the result of his visit in March, 1982. Prior to his ski trip, the" }, { "docid": "7595951", "title": "", "text": "erred in finding that Gray had not established that his injury arose from defendant’s transacting business within the state of Massachusetts. See Hahn, 698 F.2d at 50-51. Although the “transacting of any business” clause should be construed broadly “and applies to any purposeful acts by an individual, whether personal, private, or commercial,” Ross v. Ross, 371 Mass. 439, 358 N.E.2d 437, 439 (1976); Nova Biomedical, 629 F.2d at 193-94, the exercise of jurisdiction under the Massachusetts long-arm statute will nonetheless fail if the cause of action did not arise from defendant’s transaction of business in Massachusetts. Mas Marques v. Digital Equipment Corp., 637 F.2d 24, 28 (1st Cir.1980); compare Hahn, 698 F.2d at 50-51. Here, plaintiff has asserted that Sugarloaf advertised its ski facility in Massachusetts with the intent of attracting potential customers, and that Sugarloaf and plaintiff, as publisher of a regional magazine based in New Hampshire, had a promotional arrangement, independent of any Massachusetts contact, whereby Sugarloaf provided Gray with ski lift tickets in hopes that Gray would publish a favorable article in his magazine on the ski facility which, if he did, would be read in Essex County, Massachusetts. Plaintiff has failed to establish how Sugarloaf’s advertising in Massachusetts publications is related to his injury at the ski facility in Maine. By his own statement in the pleadings, plaintiff “was skiing at the defendant’s ski area as a direct result of Sugarloaf’s desire to promote its resort in the plaintiffs magazine.” The business dealings, if any, between plaintiff and defendant were initiated in New Hampshire with plaintiff’s telephone call to defendant and culminated in his skiing in Maine. It was plaintiff who contacted defendant to take advantage of the promotional arrangement. He did not go to Maine in response to any Massachusetts advertising by defendant. Jurisdiction under Mass.Gen.Laws Ann. ch. 233A, § 3(a) cannot be based on a hope that an article published by a New Hampshire resident favorable to a Maine defendant will appear in a magazine which will be distributed in Massachusetts. This is much too slippery a slope for a jurisdictional footing. Affirmed. Costs" }, { "docid": "23704218", "title": "", "text": "States District Court for the District of Massachusetts. On August 12, Hyatt moved to dismiss for lack of personal jurisdiction over it. The district court granted Hyatt’s motion on October 17, 1985, and this appeal followed. II. The central issue on this appeal is whether the district court erred in deciding that it lacked personal jurisdiction over defendant Hyatt under the Massachusetts long-arm statute, Mass.Gen.Laws ch. 223A, § 3(a) (1984). Section 3 provides in relevant part, Transactions or conduct for personal jurisdiction A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action in law or equity arising from the person’s (a) transacting any business in this commonwealth; ____ There seems little doubt that Hyatt, a foreign corporation headquartered in Chicago, “transaet[s] ... business in th[e] commonwealth” within the meaning of section 3(a). The complaint alleges, and Hyatt does not dispute, that among the hotels Hyatt owns and operates is one in Cambridge, Massachusetts, and that Hyatt regularly advertises and solicits business within the Commonwealth. See, e.g., Bond Leather Co. v. Q.T. Shoe Manufacturing Co., 764 F.2d 928, 932 (1st Cir.1985); Ross v. Ross, 371 Mass. 439, 441, 358 N.E.2d 437, 439 (1976). But it is not enough for the purposes of section 3(a) that a defendant transact business in Massachusetts. The cause of action itself must “aris[e] from” the defendant’s transacting of business in Massachusetts. We find no merit in plaintiffs’ argument that this court, in effect, read the “arising from” language out of the statute by our decision in Nova Biomedical Corp. v. Moller, 629 F.2d 190 (1st Cir.1980). That case merely held that the “arising from” requirement was not essential to a finding that the assertion of personal jurisdiction over a defendant comported with due process. Id. at 193 n. 3. The correct principle of Massachusetts law remains, as we most recently stated in Gray v. O’Brien, 777 F.2d 864 (1st Cir.1985), Although the “transacting of any business” clause should be construed broadly “and applies to any purposeful acts by an individual, whether personal, private, or" }, { "docid": "17059277", "title": "", "text": "28 U.S.C. §§ 1332(a) & 1441(a), and a nonevidentiary hearing, the action was dismissed for lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2). II DISCUSSION A. The Breach of Contract Claim In a diversity case, personal jurisdiction over a nonresident defendant is constrained both by the long-arm statute of the forum state and the Due Process Clause of the Fourteenth Amendment. . See Ticketmaster-New York, Inc. v. Alioto, 26 F.3d 201, 204 (1st Cir.1994). Massachusetts law permits Commonwealth courts to assert jurisdiction “over a person, who acts directly or by an agent, as to a cause of action in law or equity arising from the person’s ... transacting any business in this commonwealth _” Mass. Gen. Laws ch. 228A, § 3(a) (emphasis added). The “transacting business” test under section 3(a) is designed to identify deliberate, as distinguished from fortuitous, contacts with the forum by the nonresident party, see, e.g., Good Hope Indus., Inc. v. Ryder Scott Co., 378 Mass. 1, 389 N.E.2d 76, 82 (1979), with a view to determining whether “ ‘the possible need to invoké the benefits and protections of the forum’s laws was reasonably foreseeable_Id. (quoting Product Promotions, Inc. v. Cousteau, 495 F.2d 483, 496 (5th Cir.1974)). Often, the “transacting business” test is importantly informed by ascertaining whether the nonresident party initiated or solicited the business transaction in Massachusetts. For instance, the Massachusetts Supreme Judicial Court (“SJC”) has held that a California corporation transacted business in Massachusetts by systematically advertising its California hotel in Massachusetts. See Tatro v. Manor Care, Inc., 416 Mass. 763, 625 N.E.2d 549, 551-52 (1994); see also Hahn v. Vermont Law Sch., 698 F.2d 48, 51 (1st Cir.1983) (nonresident law school transacted business by sending application for admission and notice of acceptance to plaintiff in Massachusetts); New Hampshire Ins. Guar. Ass’n v. Markem Corp., 424 Mass. 344, 676 N.E.2d 809, 812-13 (1997) (nonresident insured did not transact business by mailing premium payments to Massachusetts, since Massachusetts-based insurer solicited insurance business in New Hampshire). An Ashworth affidavit — attesting that Lyle had proposed, in March 1991, to serve as Ashworth’s" }, { "docid": "15139369", "title": "", "text": "Pharmaceutical Corp., 619 F.2d 902, 904-05 (1st Cir.1980) (emphasis added) (citing A.H. Thomas Co. v. Superior Court, 98 P.R.R. 864, 870 (1970)). Hence, in order to establish in personam jurisdiction over Concorde, Pizarro must establish that Concorde’s negligence “arose out of” Concorde’s contacts with Puerto Rico, i.e., the newspaper advertisements. The advertisements, however, have no connection with the negligent act of the employee that allegedly caused the injury. Pizarro alleges that they would not have lodged at the Aruba Concorde if they had not seen the advertisements. Assuming that the allegation is true, it still cannot be said that the negligent act “arose out of” Concorde’s placing of the advertisements in El Nuevo Día. A case that is helpful in answering the question presented here is Marino v. Hyatt Corp., 793 F.2d 427 (1st Cir.1986). In the Marino case, which involved similar facts and a similar long arm statute, this court determined that a negligent act at a hotel in one state did not “arise from” the making of reservations in another state. In Marino, the plaintiffs, residents of Massachusetts, made reservations and entered into a contract to stay at a Hawaii hotel, owned by a defendant corporation that was not a resident of Massachusetts. The reservations were made and the contract was entered into in Massachusetts. See id. at 427. While the plaintiffs were at defendant’s hotel in Hawaii, one of the plaintiffs slipped and fell, and suffered physical injuries. Alleging that the defendant was negligent, the plaintiffs sued the defendant in the United States District Court for the District of Massachusetts. The plaintiffs claimed jurisdiction under the Massachusetts long arm statute which conferred in personam jurisdiction “ ‘over a person, who acts directly or by an agent, as to a cause of action in law or equity arising from the person’s ... transacting any business in this commonwealth....’” Id. at 428 (emphasis added) (quoting Mass.Gen.L. ch. 223A, § 3(a) (1984)). The defendant moved to dismiss, and the district court granted the motion. On appeal, we affirmed, and noted that to accept plaintiff’s argument “would be to render the" }, { "docid": "4003608", "title": "", "text": "business in this commonwealth; (b) contracting to supply services or things in this commonwealth; (c) causing tortious injury by an act or omission in this commonwealth; (d) causing tortious injury in this commonwealth by an act or omission outside this commonwealth if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this commonwealth.... Mass.Gen.Laws Ann. ch. 223A, § 3 (West 1985). Part (a) of the statute, the “transacting business” clause, is to be construed broadly. Nova Biomedical Corp. v. Moller, 629 F.2d 190, 193-94 (1st Cir.1980). Indeed, the First Circuit has held that mailing four letters and making one phone call to Massachusetts satisfied the “transacting business” requirement of § 3(a). See Bond Leather Co., Inc. v. Q.T. Shoe Mfg. Co., Inc., 764 F.2d 928, 932 (1st Cir.1985). In order for such activity to satisfy the whole of § 3(a), however, the cause of action must have arisen from the transacted business. Marino v. Hyatt Corp., 793 F.2d 427, 428 (1st Cir.1986). Thus, § 3(a) requires both that defendants transact business in Massachusetts and that the cause of action at issue arose from that activity. II. Defendants concede that they made some visits and reports to Massachusetts to consult with Shipley personnel, and that they mailed back their employment contracts to Massachusetts after they signed them. Defendants argue that these activities were required by Shipley as employment duties and, therefore, they do not constitute the purposeful conduct that would satisfy § 3(a). In essence, defendants are relying on the “fiduciary shield” doctrine, that protects an individual from jurisdictional consequences because of acts performed in his capacity as a corporate representative. See Johnson Creative Arts, Inc. v. Wool Masters, Inc., 573 F.Supp. 1106 (D.Mass.1983). Defendants’ argument is unavailing. No Massachusetts court has ever recognized the fiduciary shield doctrine as a limitation on the reach of the long-arm statute. Id. at 1111. Indeed, no Massachusetts court has ever recognized the doctrine at all. See Yankee Group, Inc. v. Yamashita, 678 F.Supp. 20, 22" }, { "docid": "19032791", "title": "", "text": "MEMORANDUM AND ORDER BARBADORO, Chief Judge. Plaintiffs in this citizen-suit enforcement action seek to compel Loon Mountain Recreation Corporation (“Loon”) to pay civil penal ties to the United States stemming from violations of the Federal Water Pollution Control Act, 33 U.S.C.A. §§ 1251 et seq. (West 1986 & Supp.1998), commonly known as the Clean Water Act (“CWA”). Loon moves to dismiss plaintiffs’ claim, arguing that the action no longer presents a justicia-ble case or controversy. I agree and, accordingly, grant Loon’s motion to dismiss. I. BACKGROUND Loon operates a ski area in northern New Hampshire. Because part of the ski area is located in the White Mountain National Forest, Loon’s operations require a special-use permit issued by the United States Forest Service. See 16 U.S.C.A. § 497(b) (West Supp.1995). In 1986, Loon asked the Forest Service to amend the permit to allow it to expand its ski operations. In 1993, after several years of review, the Forest Service issued a Record of Decision (“ROD”) approving a revised version of Loon’s expansion plan. The plan approved by the ROD authorized Loon to increase its use of Loon Pond as a water source in its snow-making operations. The plan also contemplated that Loon would replace water taken from the pond during the snow-making season by twice annually refilling the pond with water from the East Branch of the Pemigewasset River (the “East Branch”). Additionally, it authorized Loon to continue its past practice of routinely discharging water from its snow-making pipes into Loon Pond. At various times, these discharges have included water from Loon Pond, as well as the East Branch and Boyle Brook, both of which serve as additional sources of snow-making water. Plaintiff Roland Dubois filed this action challenging Loon’s expansion plan. Dubois was joined in his claims by intervenor Restore: The North Woods (“Restore”), an environmental organization. Loon intervened as a defendant. Plaintiffs’ complaint alleged, among other things, that the plan violated the CWA in that Loon was able to discharge pollutants (contained in the water taken from the East Branch and Boyle Brook) into Loon Pond without first obtaining" }, { "docid": "8099937", "title": "", "text": "82-2980-K, slip op. (D.Mass. Feb. 15,1983); Marsella v. Walt Disney World Co., No. 84-3045-W, slip op. (D.Mass. Sept. 30, 1985). A more difficult question is presented in determining whether the plaintiff’s cause of action arises from the defendant’s in-state activities. In Marino v. Hyatt Corp., 793 F.2d 427 (1st Cir.1986), the plaintiff, a Massachusetts resident, was injured when she fell in a hotel operated by the defendant in Hawaii. The defendant clearly met the requirement of transacting business in Massachusetts, since the defendant operated several hotels in Massachusetts, regularly advertised and solicited business within the commonwealth, and contracted with the plaintiff in Massachusetts to reserve a room for her. Id. at 428. The court went on to note, however, that the plaintiff’s injuries did not arise from any of these activities. Id. at 430. In doing so, the court distinguished between cases for breach of contract and cases for negligence. While a breach of contract action could be said to arise from a contract to reserve a hotel room, a personal injury action does not. Id. at 430. Compare Hahn v. Vermont Law School, 698 F.2d 48 (1st Cir.1983) (the “arising from” requirement is satisfied when the cause of action is for breach of contract and the business transacted was instrumental in the formation of that contract). The court noted that the reservation contract was immaterial to the plaintiff's slip-and-fall case. Marino, 793 F.2d at 430. This case is similar to Marino. The instate transactions on which jurisdiction is based were primarily for the purposes of soliciting business and reserving a room for the plaintiff. The connection between these transactions and the events which led to the plaintiffs’ injuries is too tenuous to say that the injuries “arose out of” the transactions. Because the plaintiffs cause of action for negligence does not arise out of the defendant’s transactions in Massachusetts, this court may not exercise jurisdiction under Mass.Gen.L. ch. 223A § 3(a). Accordingly, the defendant’s motion to dismiss for lack of jurisdiction should be granted. Order accordingly. . While these considerations are separate and distinct in theory, they often merge" }, { "docid": "16070600", "title": "", "text": "evidence to support each of the relevant jurisdictional prerequisites.” Id. at 55. Though we recognize that this standard requires only a threshold showing, North American Video Corp. v. Leon, 480 F.Supp. 213, 215-16 (D.Mass. 1979), we find that the plaintiffs have failed to meet this burden in the present case. Discovery regarding the issue of personal jurisdiction was to be completed by September 10, 1988. At the time the parties presented arguments before this Court at a jurisdictional hearing on September 15, plaintiffs’ counsel had not conducted any discovery on the jurisdictional issue. In response to the defendant’s motion to dismiss and the supporting memorandum, the plaintiffs submitted a memorandum in opposition to Gunstock’s motion the day of the hearing. Plaintiffs’ memorandum was not accompanied by affidavits or other competent evidence on the jurisdictional issue. The memorandum merely advanced bare allegations regarding the defendant’s promotional activities, advertising, and ticket sales in Massachusetts. Despite the September 10 discovery deadline on the jurisdictional issue, plaintiffs’ memorandum asserted that subsequent pre-trial discovery would document the plaintiffs’ allegations as to the Court’s in personam jurisdiction over Gunstock. The plaintiffs failed to acknowledge that their discovery opportunity had lapsed without any evident attempt made by the plaintiffs to carry their burden of proof on the jurisdictional issue. Though plaintiffs had been afforded an opportunity to produce affirmative proof of jurisdictional prerequisites, they did not take advantage of this opportunity. Even if the plaintiffs had submitted affirmative proof of the defendant’s transaction of business in Massachusetts sufficient to satisfy § 3(a) of the long-arm statute, plaintiffs have failed to establish how the defendant’s alleged in-state activity gave rise to Heather Canning’s injury. Under the Massachusetts long-arm statute, the plaintiffs must establish not only that the defendant transacts business in state, but that the cause of action arises from the in-state activity. Marino v. Hyatt Corp., 793 F.2d 427, 428 (1st Cir.1986); Morse v. Walt Disney World Co., 675 F.Supp. at 43. The allegations advanced in plaintiffs’ memorandum opposing the defendant’s motion to dismiss do not establish a nexus between Gunstock’s alleged activities in Massachusetts and Heather" } ]

[ { "docid": "22625764", "title": "", "text": "IJ determined that Kucana was removable and scheduled a hearing to evaluate his eligibility for asylum. When Kucana failed to appear for the hearing, the IJ immediately ordered his removal in absentia. Kucana filed a motion to reopen, explaining that he had missed his hearing because he had overslept. The IJ denied the motion, and the BIA affirmed in 2002. Kucana did not seek judicial review, nor did he leave the United States. Kucana filed a second motion to reopen his removal proceedings in 2006, contending that conditions in Albania had worsened. The BIA denied relief; it concluded that conditions in Albania had actually improved since 1997. Arguing that the BIA had abused its discretion in denying his motion, Kucana filed a petition for review in the Seventh Circuit. In a fractured decision, the Seventh Circuit dismissed the petition for lack of jurisdiction. Kucana v. Mukasey, 533 F. 3d 534, 539 (2008). The court held that 8 U.S.C. § 1252(a)(2)(B)(ii) bars judicial review not only of administrative decisions made discretionary by statute, but also “when the agency’s discretion is specified by a regulation rather than a statute.” 533 F. 3d, at 536. In so ruling, the Sev enth Circuit created a split between itself and other Courts of Appeals, all of them holding that denials of reopening motions are reviewable in court. Judge Ripple concurred dubitante. He acknowledged that the court was following an earlier decision, Ali v. Gonzales, 502 F. 3d 659 (CA7 2007), but “suggested] that, had Congress intended to deprive th[e] court of jurisdiction ..., it would have done so explicitly, as it did in 8 U. S. C. § 1252(a)(2)(B)(i).” 533 F. 3d, at 540. The court, he concluded, should revisit both All and Kucana and “chart a course ... more closely adher[ing] to the statutory language chosen and enacted by Congress.” 533 F. 3d, at 540. Judge Cudahy dissented. Given the absence of “specific [statutory] language entrusting the decision on a motion to reopen to the discretion of the Attorney General,” ibid, (internal quotation marks omitted), he saw no impediment to the exercise of jurisdiction" } ]

[ { "docid": "22780587", "title": "", "text": "are not relevant to his persecution claim. We separately note that the respondent may address a request for humanitarian parole for medical treatment to the DHS, as requests for deferred action are within the jurisdiction of DHS, not the Immigration Courts or this Board.” (AR at 4.) The BIA concluded that Pllumi had “not presented an exceptional situation which would warrant reopening” and declined to exercise its authority to reopen his case sua sponte. Pllumi has petitioned for review of the BIA’s decision that he failed to demonstrate changed country conditions such that he would be eligible for reopening under 8 C.F.R. § 1003.2(c)(3)(ii). Alternatively, he contends that his petition should be granted because the BIA’s refusal to sua sponte reopen his proceedings is predicated on an error of law. II. Standard of Review In immigration cases, we review a denial of a motion to reopen or a motion to reconsider for abuse of discretion, regardless of the underlying basis of the alien’s request for relief. INS v. Doherty, 502 U.S. 314, 323-24, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992); Ezeagwuna v. Ashcroft, 325 F.3d 396, 409 (3d Cir.2003). We give the BIA’s decision broad deference and generally do not disturb it unless it is “arbitrary, irrational, or contrary to law.” Filja v. Gonzales, 447 F.3d 241, 251 (3d Cir.2006) (citation and quotation omitted). However, motions that ask the BIA to sua sponte reopen a case are of a different character. Because such motions are committed to the unfettered discretion of the BIA, we lack jurisdiction to review a decision on whether and how to exercise that discretion. Calle-Vujiles v. Ashcroft, 320 F.3d 472, 475 (3d Cir.2003). Nevertheless, in Mahmood v. Holder the United States Court of Appeals for the Second Circuit suggested that there is jurisdiction to remand to the BIA for reconsideration when the BIA’s decision to decline to exercise its sua sponte authority is based on a misperception of the relevant law. 570 F.3d 466, 469 (2d Cir.2009). In Mahmood, the petitioner, a native of Pakistan, filed for an adjustment of status after his marriage to a" }, { "docid": "22558184", "title": "", "text": "first child / a second child pursuant to the provincial family-planning regulations?,” the answer stated, “An IUD insertion is mandatory upon birth of a first child; sterilization upon birth of a second child.” The BIA summarily denied Guo’s second motion to reopen on the ground that she had not demonstrated changed circumstances. The BIA characterized the documents as “new,” rather than “not [previously] available” as required by the applicable regulations and, without any evident attention to the content of the documents, merely concluded that “the applicant has failed to show any change in Chinese policy.” See 8 C.F.R. § 1003.2(c)(3)(ii). This appeal followed. Discussion We review the BIA’s denial of a motion to reopen for abuse of discretion. Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.2005) (per curiam). Since the BIA has broad discretion to grant or deny motions to reopen, in reviewing such a motion, “we are precluded from passing on the merits of the underlying exclusion proceedings,” including adverse credibility determinations. Paul v. Gonzales, 444 F.3d 148, 153 (2d Cir.2006) (citation and internal quotation marks omitted). Our review is instead confined to whether the denial of the motion to reopen constituted an abuse of discretion, and in that regard, we do not revisit an IJ’s adverse credibility finding. Id. The BIA concluded that since Guo did not appeal the IJ’s finding that the prospect of her facing forcible sterilization was not credible, her CAT claim was fatally undermined since it rested upon the same facts found unbelievable. Guo’s principal contention is that this conclusion constituted an abuse of discretion because under our decision in Ramsameachire v. Ashcroft, 357 F.3d 169 (2d Cir.2004), an adverse credibility determination made for the purpose of an asylum claim cannot serve as the sole basis for denying a CAT claim. The heart of Guo’s CAT claim is that she will face forcible sterilization upon return to China and that sterilization constitutes torture within the meaning of CAT. See 8 C.F.R. § 208.18(a)(5), Guo maintains that, to deny her CAT claim, the BIA was required to revisit her contention that she would face" }, { "docid": "22638893", "title": "", "text": "discretion. See INS v. Abudu, 485 U.S. 94, 109-10, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988). We will disturb the BIA’s denial of a motion to reopen or to reconsider only if it was “arbitrary, irrational, or contrary to law.” Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir.2004) (internal citation omitted). In ruling on questions of law, we review the BIA’s legal conclusions de novo. Smriko v. Ashcroft, 387 F.3d 279, 282 (3d Cir.2004). We review factual determinations under a “substantial evidence” standard, which requires us to treat findings of fact as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Ambartsoumian v. Ashcroft, 388 F.3d 85, 89 (3d Cir.2004). III. If an alien or his counsel of record has been provided with written notice of a removal proceeding, and the alien does not attend, he “shall be ordered removed in absentia if the [DHS] establishes by clear, unequivocal, and convincing evidence that the written notice was so provided and that the alien is removable[.]” 8 U.S.C. § 1229a(b)(5)(A) (1952) (amended 2000). The removal order may be rescinded only if the alien (1) files a motion to reopen within 180 days of the issuance of the removal order, and (2) demonstrates that his failure to appeal* was due to “exceptional circumstances.” Id. at (b)(5)(C)(i); see also Bejar v. Ashcroft, 324 F.3d 127, 131 (3d Cir.2003). There is no indication in the statute that the 180-day time limitation is jurisdictional. The statute does explain that “exceptional circumstances” are those “circumstances (such as serious illness of the alien or serious illness or death of the spouse, child, or parent of the alien, but not including less compelling circumstances) beyond the control of the alien.” 8 U.S.C. § 1229a(e)(1). A. Equitable Tolling Borges concedes, as he must, that his 2003 motion to reopen was well outside of the 180-day window for seeking rescission of his February 3, 1998 in absentia order of removal, and he has never argued to the contrary. Respondent, however, has continually misconstrued what Borges has consistently argued is" }, { "docid": "13101122", "title": "", "text": "to the BIA, challenging the IJ’s adverse credibility finding and contending that the IJ’s role in questioning him violated his due process right to a neutral arbiter. The BIA dismissed the appeal on May 80, 2008. Like the IJ, the BIA was troubled that Abulashvili’s asylum application did not claim that the root of his problems in Georgia could have been due to his father’s political activism. The BIA also rejected Abulashvili’s claim that his due process rights had been violated. The BIA concluded that the IJ was “ferreting out ... the facts” and “aequir ing clarity in [Abulashvili’s] testimony.” (A.R.421) We thereafter granted Abulashvili’s motion to stay removal. Abulashvili then filed a motion to reopen with the BIA based on changed country conditions, which the BIA denied because it was untimely. This petition for review followed. The petition apparently does not challenge the denial of Abulashvili’s untimely asylum application. (See Pet’s Brief, at ll). Rather, Abulashvili only challenges the denial of his claim for withholding of removal and relief pursuant to the CAT. II. Jurisdiction and Standard of Review The BIA has jurisdiction over motions to reopen removal proceedings pursuant to 8 C.F.R. § 1003.2(a). We have jurisdiction over Abulashvili’s petition for review pursuant to 8 U.S.C. § 1252. “We review a final order of the BIA denying a motion to reopen for abuse of discretion.” Mahmood v. Gonzales, 427 F.3d 248, 250 (3d Cir.2005) (citation omitted). Under this standard, we may reverse the BIA’s denial of a motion to reopen if it is “arbitrary, irrational, or contrary to law.” Zheng v. Att’y Gen., 549 F.3d 260, 265 (3d Cir.2008). Because the BIA’s original order of removal adopted the findings of the IJ and discussed the reasons behind the IJ’s decision, we review the decisions of both the IJ and the BIA. See Zheng v. Gonzales, 417 F.3d 379, 381 (3d Cir.2005). “Adverse credibility determinations are factual findings subject to substantial evidence review.” Tarrawally v. Ashcroft, 338 F.3d 180, 184 (3d Cir.2003). We will defer to and uphold the IJ’s adverse credibility determination if it is “supported by reasonable," }, { "docid": "7376014", "title": "", "text": "to reopen the proceedings sua sponte. Alzaarir submits a petition for review of the BIA’s decision. We have jurisdiction pursuant to 8 U.S.C. § 1252(a). Review of the BIA’s decision to deny a motion to reopen is under a highly deferential abuse of discretion standard. See Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir.2004). The discretionary decision is not disturbed unless it is found to be arbitrary, irrational, or contrary to law. See id. We will deny the petition for review because we cannot say the BIA’s decision was arbitrary, irrational, or contrary to law. An alien faces number and time limitations on filing motions to reopen. Generally, an alien may file only one motion to reopen. See 8 U.S.C. § 1229a(c)(7)(A) (listing an exception not relevant here). Also, most motions to reopen must be filed no later than 90 days after the date of the final administrative decision. See 8 U.S.C. § 1229a(c)(7)(A); 8 C.F.R. § 1003.2(c)(2). Alzaarir presented his second motion to reopen to the BIA more than four and a half years after the BIA affirmed the IJ’s order in his case. The time limit for filing a motion to reopen is subject to equitable tolling, and perhaps the numerical limit is as well. See Borges v. Gonzales, 402 F.3d 398, 406 (3d Cir.2005); Luntungan v. Attorney Gen. of the United States, 449 F.3d 551, 557 & n. 15 (3d Cir.2006). Ineffective assistance of counsel can serve as a basis for equitable tolling if substantiated and accompanied by a showing of due diligence. See Mahmood v. Gonzales, 427 F.3d 248, 252 (3d Cir.2005). Due diligence must be exercised over the entire period for which tolling is desired. See Rashid v. Mukasey, 533 F.3d 127, 132 (2d Cir.2008). “This includes both the period of time before the ineffective assistance of counsel was or should have been discovered and the period from that point until the motion to reopen is filed.” Id. Alzaarir requested tolling because of Helal’s alleged ineffectiveness, which he discovered in June 2005, years before he filed his second motion to reopen. At that point," }, { "docid": "11309423", "title": "", "text": "note any efforts to authenticate it. Lin also failed to file a new application for asylum. The BIA held that Lin did not satisfy his burden of showing prima facie eligibility for relief, and it denied his motion to reopen. In particular, it noted that there was no indication of how Lin had acquired the new documents from Chinese sources, nor had Lin made any attempt to authenticate them. The BIA’s denial was ultimately based on the totality of the circumstances, which included Lin’s failure to file a new application for asylum, his reliance on unauthenticated evidence, and the IJ’s prior adverse credibility determination. This timely petition for review followed. II. Discussion We review for abuse of discretion a decision declining to reopen removal proceedings. INS v. Doherty, 502 U.S. 314, 323-24, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992); Ezeagwuna v. Ashcroft, 325 F.3d 396, 409 (3d Cir.2003). Under that standard, we give the BIA’s decision broad deference and generally do not disturb it unless it is “arbitrary, irrational, or contrary to law.” Filja v. Gonzales, 447 F.3d 241, 251 (3d Cir.2006) (citation and internal quotation marks omitted). We also note at the outset that “[m]otions for reopening of immigration proceedings are disfavored,” Doherty, 502 U.S. at 323, 112 S.Ct. 719, and that “[granting such motions too freely will permit endless delay of deportation by aliens creative and fertile enough to continuously produce new and material facts sufficient to establish a prima facie case,” INS v. Abudu, 485 U.S. 94, 108, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988) (internal quotation marks omitted). There are three substantive grounds upon which the BIA may deny a motion to reopen immigration proceedings. First, a motion may be denied when the movant fails to establish a prima facie case for the relief sought. Id. at 104, 108 S.Ct. 904. Second, it may be denied when the movant fails to introduce previously unavailable and material evidence. Id.; see also 8 C.F.R. § 1003.2(c) (“A motion to reopen proceedings shall not be granted unless it appears to the [BIA] that evidence sought to be offered is" }, { "docid": "15338398", "title": "", "text": "but did not specify when to grant a motion to reopen, and “[t]he granting of a motion to reopen is thus discretionary”); see also 8 C.F.R. § 1003.2(a) (\"The decision to grant or deny a motion to reopen ... is within the discretion of the Board ....”). We have thus continued to review the BIA’s decisions to reopen for abuse of discretion after IIRIRA, as we did before. See Laboski v. Ashcroft, 387 F.3d 628, 631 (7th Cir.2004) (citing Awad v. Ashcroft, 328 F.3d 336, 341 (7th Cir.2003)); see also Pelinkovic v. Ashcroft, 366 F.3d 532, 536 (7th Cir.2004). Ms. Fessehaye submits that, in codifying procedures for a motion to reopen, IIRIRA changed the degree of deference that we owe to the BIA’s decision, and for support she cites discussion in Medina-Morales v. Ashcroft, 371 F.3d 520 (9th Cir.2004). We cannot accept this argument. The question presented in Medina-Morales was whether the discretion to grant or deny motions to reopen, vested in the Attorney General through 8 U.S.C. § 1229a(c)(7), was such that the decision was unreviewable under 8 U.S.C. § 1252(a)(2)(B)(ii). Having found jurisdiction, the Ninth Circuit proceeded to review the BIA’s decision for abuse of discretion. Nothing in Medina-Morales indicates that we ought to modify our review of the BIA's discretion in this case. See, e.g., Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir.2004) (\"[0]ur review is highly deferential: we review the denial of a motion to reopen for abuse of discretion. Discretionary decisions of the [Board] will not be disturbed unless they are found to be arbitrary, irrational, or contrary to law.” (internal quotation marks and citation omitted)). . The BIA also may deny a motion to reopen after, \"a determination that even if these requirements were satisfied, the movant would not be entitled to the discretionary grant of relief which he sought.” See Awad, 328 F.3d at 341. There is no indication in the record that the BIA would have refused to grant asylum to Ms. Fessehaye even if she had proven entitlement to that relief. . 8 C.F.R. § 208.13(b)(2)(i) provides that: (i) An" }, { "docid": "167704", "title": "", "text": "397 (7th Cir.2000) (review of motion to reopen or reconsider confined to issues raised in that motion.) In his motion Simtion instead argued that country conditions had changed since the IJ’s 1995 order denying him asylum; he contended that because the 2000 election “brought former communist secretary, Ion Iliescu, back to power,” his fears of persecution were realistic again. Simtion attached to his motion the State Department’s Country Report on Human Rights Practices for 2001 for Romania, The State Department’s 2001 Annual Report on Religious Freedom in Romania, and several articles. The BIA thought that Simtion’s motion was more properly characterized as a motion to reconsider, but it analyzed the motion under both standards. The BIA said that to the extent that Simtion was seeking reconsideration, he failed to point to any errors of law or fact to justify relief. And to the extent that he was seeking to reopen his proceedings, his motion was barred because he had previously filed a motion to reopen, and he could not claim the benefit of an exception allowing an applicant to reapply for asylum based on new evidence of changed country conditions. The BIA said that in August 2002 when it affirmed the IJ’s denial of asylum, it had already considered all of the changed country conditions that Simtion was raising in his motion. The matter before us is limited to the BIA’s denial of Simtion’s “motion to reopen.” See Sankarapillai v. Ashcroft, 330 F.3d 1004, 1005-06 (7th Cir.2003) (time limit for filing petition for review is jurisdictional). The BIA thought it was really a motion to reconsider, but then analyzed it under both standards. The two motions are described at 8 C.F.R. § 1003.2. A motion to reconsider should specify “errors of fact or law in the prior Board decision.” 8 C.F.R. § 1003.2(b); see also Ahmed v. Ashcroft, 388 F.3d 247, 249-50 (7th Cir. 2004). A motion to reopen “shall state the new facts that will be proven at a hearing to be held if the motion is granted.” 8 C.F.R. § 1003.2(c); Ahmed, 388 F.3d at 250. Motions to" }, { "docid": "15338399", "title": "", "text": "was unreviewable under 8 U.S.C. § 1252(a)(2)(B)(ii). Having found jurisdiction, the Ninth Circuit proceeded to review the BIA’s decision for abuse of discretion. Nothing in Medina-Morales indicates that we ought to modify our review of the BIA's discretion in this case. See, e.g., Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir.2004) (\"[0]ur review is highly deferential: we review the denial of a motion to reopen for abuse of discretion. Discretionary decisions of the [Board] will not be disturbed unless they are found to be arbitrary, irrational, or contrary to law.” (internal quotation marks and citation omitted)). . The BIA also may deny a motion to reopen after, \"a determination that even if these requirements were satisfied, the movant would not be entitled to the discretionary grant of relief which he sought.” See Awad, 328 F.3d at 341. There is no indication in the record that the BIA would have refused to grant asylum to Ms. Fessehaye even if she had proven entitlement to that relief. . 8 C.F.R. § 208.13(b)(2)(i) provides that: (i) An applicant has a well-founded fear of persecution if: (A) The applicant has a fear of persecution in his or her country of nationality or, if stateless, in his or her country of last habitual residence, on account of race, religion, nationality, membership in a particular social group, or political opinion; (B) There is a reasonable possibility of suffering such persecution if he or she were to return to that country; and (C) He or she is unable or unwilling to return to, or avail himself or herself of the protection of, that country because of such fear. . As relevant here, 8 C.F.R. § 208.13(b)(2)(iii) limits the Immigration Judge's scope of review in certain cases. When an applicant “establishes that there is a pattern or practice in his or her country ... of persecution of a group of persons similarly situated ... on account of race, religion, nationality, membership in a particular social group, or political opinion,” id. § 208.13(b)(2)(iii)(A), and \"establishes his or her own inclusion in, and identification with, such group of persons" }, { "docid": "22735511", "title": "", "text": "sterilized and would not have more children in the future because he has already had two sons. Id. at 65-66. In addition to the affidavit and letter, Chen submitted other documents to demonstrate changed circumstances in China since the time of his original application for asylum. Several documents are the same as ones that Zheng submitted in support of his motion, including: (1) the State Department’s 2004 and 2005 Country Reports; (2) the Consular Information Sheet dated May 29, 2003; (3) the Congressional Executive Commission Report for 2005; (4) Aird’s September 23, 2002 testimony to Congress; (5) Wu’s December 14, 2004 testimony to Congress; and (6) the same two newspaper articles from 2005. But Chen also included documents not included with Zheng’s motion: (1) a document by the Administrative Office of the National Population and Family Planning Committee, dated March 14, 2006; (2) a document that Chen describes as the “Changle City Family Planning Q & A Handbook”; and (3) the Congressional Executive Commission Report for 2006. On June 29, 2007, the BIA denied Chen’s motion to reopen his case and on July 23, 2007, Chen filed the petition now before us to review the BIA’s decision and order. III. JURISDICTION AND STANDARD OF REVIEW Zheng and Chen correctly assert that the BIA had jurisdiction under 8 C.F.R. § 1003.2(c). We have jurisdiction over the present petitions for review pursuant to 8 U.S.C. § 1252. We review the denial of a motion to reopen for abuse of discretion. Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir.2004). We will not disturb the BIA’s decisions “unless they are found to be arbitrary, irrational, or contrary to law.” Id. (internal citations and quotation marks omitted). IV. DISCUSSION The general criteria governing motions to reopen set forth in 8 C.F.R. § 1003.2(c)(1) provide that: A motion to reopen proceedings shall state the new facts that will be proven at a hearing to be held if the motion is granted and shall be supported by affidavits or other evidentiary material. A motion to reopen proceedings for the purpose of submitting an application for relief" }, { "docid": "23543049", "title": "", "text": "country conditions and had not demonstrated a prima facie case for CAT relief. Zhu thereafter filed a petition for review. II. The BIA had jurisdiction under 8 C.F.R. § 1003.2 to review Zhu’s motion to reopen, and we have jurisdiction to review the BIA’s decision pursuant to 8 U.S.C. § 1252(a)(1). We review the denial of a motion to reopen for an abuse of discretion. Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir.2004) Thus, the BIA’s ultimate decision is entitled to “broad deference,” Ezeagwuna v. Ashcroft, 325 F.3d 396, 409 (3d Cir.2003) (internal quotation marks omitted), and “will not be disturbed unless [it is] found to be arbitrary, irrational, or contrary to law.” Guo, 386 F.3d at 562 (internal quotation marks and citation omitted). Similarly, we review the BIA’s evidentiary rulings deferentially. See Cheng v. Att’y Gen., 623 F.3d 175, 182 (3d Cir.2010). III. With limited exceptions, a motion to reopen must be filed within ninety days of the date of entry of a final administrative order. 8 C.F.R. § 1003.2(c)(2). To obtain relief based on an untimely motion to reopen, Zhu had to provide material evidence of changed conditions in China that could not have been discovered or presented during the previous proceeding. See 8 C.F.R. § 1003.2(c)(3)(h). Here, the BIA denied Zhu’s motion to reopen her removal proceedings because it found: (1) “[h]er evidence is not sufficient to establish a material change in circumstances or country conditions ‘arising in the country of nationality’ so as to create an exception to the time and number limitations for filing another late motion to reopen to apply for asylum,” and (2) she “has not demonstrated a prima facie case for protection under [CAT].” App. 6. To determine if the BIA abused its discretion in finding that Zhu did not present evidence to establish a material change in country conditions, we must determine if the BIA meaningfully considered the evidence and arguments Zhu presented. Zheng v. Att’y Gen., 549 F.3d 260, 266 (3d Cir.2008). This does not mean that the BIA is required to expressly parse each point or discuss each" }, { "docid": "23543048", "title": "", "text": "China’s enforcement of its population control policies in her home region. See App. 11-1143. These documents purportedly come from the U.S. government, Chinese government websites, Chinese governmental entities or officials, and international media outlets. She contends that these documents show that the United States Department of State’s May 2007 “China: Profile of Asylum Claims and Country Conditions” (the “2007 Profile”), which the BIA had previously relied upon concerning treatment of those who violate the population control policies, does not reflect current conditions in China. Among other things, Zhu asserts that these documents show that foreign-born children now count for family planning purposes and new programs have been implemented in her home province that more strictly enforce population controls. Zhu also provided an affidavit from an expert opining about the authenticity of four documents purporting to embody population control enforcement measures from Changle City, which is approximately thirty kilometers from Zhu’s hometown of Guantou. On March 28, 2013, the BIA denied Zhu’s motion to reopen, concluding that she had failed to establish a material change in country conditions and had not demonstrated a prima facie case for CAT relief. Zhu thereafter filed a petition for review. II. The BIA had jurisdiction under 8 C.F.R. § 1003.2 to review Zhu’s motion to reopen, and we have jurisdiction to review the BIA’s decision pursuant to 8 U.S.C. § 1252(a)(1). We review the denial of a motion to reopen for an abuse of discretion. Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir.2004) Thus, the BIA’s ultimate decision is entitled to “broad deference,” Ezeagwuna v. Ashcroft, 325 F.3d 396, 409 (3d Cir.2003) (internal quotation marks omitted), and “will not be disturbed unless [it is] found to be arbitrary, irrational, or contrary to law.” Guo, 386 F.3d at 562 (internal quotation marks and citation omitted). Similarly, we review the BIA’s evidentiary rulings deferentially. See Cheng v. Att’y Gen., 623 F.3d 175, 182 (3d Cir.2010). III. With limited exceptions, a motion to reopen must be filed within ninety days of the date of entry of a final administrative order. 8 C.F.R. § 1003.2(c)(2). To obtain relief" }, { "docid": "22061855", "title": "", "text": "be subject to future torture in Guinea.” Id. Concluding that Fadiga had therefore “failed to demonstrate prima facie eligibility” for withholding under either section 241(b)(3) of INA or Article III of the CAT, and that he thus could not establish “that he has been prejudiced by the actions of his former attorney,” the BIA dismissed Fadiga’s appeal and denied his motion to reopen. Id. Fadiga filed a timely petition for review in this court, and he now challenges the final order of removal on the ground that the BIA erroneously denied his motion to reopen as to withholding of removal under the INA and protection under the CAT. II. JURISDICTION AND SCOPE OF REVIEW The Immigration Court had jurisdiction over Fadiga’s application for asylum, withholding of removal and protection under the CAT pursuant to 8 C.F.R. § 1208.2(b). The BIA had jurisdiction to review the IJ’s decision under 8 C.F.R. § 1003.1(b) and was authorized to consider Fadiga’s motion to reopen pursuant to 8 C.F.R. § 1003.2(c)(4). See Korytnyuk v. Ashcroft, 396 F.3d 272, 282 (3d Cir.2005) (motion to reopen filed during pendency of appeal is properly heard by BIA). We have jurisdiction to review final orders of removal under 8 U.S.C. § 1252(a)(1). See Voci v. Gonzales, 409 F.3d 607, 612 (3d Cir.2005). Because “there is no ‘final order’ until the BIA acts,” Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d Cir.2001), we review only the decision of the BIA, “absent special circumstances not present here.” Id. at 545. “[W]e review the [BIA’s] denial of a motion to reopen for abuse of discretion.” Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir.2004). “Under the abuse of discretion standard, the Board’s decision must be reversed if it is arbitrary, irrational, or contrary to law.” Sevoian v. Ashcroft, 290 F.3d 166, 175 (3d Cir.2002) (internal quotation marks omitted). However, we review de novo the Board’s determination of an underlying procedural due process claim. See Bonhometre v. Gonzales, 414 F.3d 442, 447 (3d Cir.2005), cert. denied, — U.S. -, 126 S.Ct. 1362, 164 L.Ed.2d 72 (2006); De Leon-Reynoso v. Ashcroft, 293 F.3d" }, { "docid": "22061856", "title": "", "text": "(3d Cir.2005) (motion to reopen filed during pendency of appeal is properly heard by BIA). We have jurisdiction to review final orders of removal under 8 U.S.C. § 1252(a)(1). See Voci v. Gonzales, 409 F.3d 607, 612 (3d Cir.2005). Because “there is no ‘final order’ until the BIA acts,” Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d Cir.2001), we review only the decision of the BIA, “absent special circumstances not present here.” Id. at 545. “[W]e review the [BIA’s] denial of a motion to reopen for abuse of discretion.” Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir.2004). “Under the abuse of discretion standard, the Board’s decision must be reversed if it is arbitrary, irrational, or contrary to law.” Sevoian v. Ashcroft, 290 F.3d 166, 175 (3d Cir.2002) (internal quotation marks omitted). However, we review de novo the Board’s determination of an underlying procedural due process claim. See Bonhometre v. Gonzales, 414 F.3d 442, 447 (3d Cir.2005), cert. denied, — U.S. -, 126 S.Ct. 1362, 164 L.Ed.2d 72 (2006); De Leon-Reynoso v. Ashcroft, 293 F.3d 633, 635 (3d Cir.2002). Since claims of ineffective assistance of counsel in immigration proceedings are grounded in the “Fifth Amendment right to due process,” Zheng v. Gonzales, 422 F.3d 98, 106 (3d Cir.2005); see infra Part III.A, we think that such claims should be reviewed de novo. Finally, questions of law, such as whether the BIA applied the correct legal standard in considering the motion to re open and the underlying claim of denial of due process, are also reviewed de novo. See Borges v. Gonzales, 402 F.3d 398, 404 (3d Cir.2005). III. DISCUSSION On this petition for review, Fadiga contends that the BIA “erroneously concluded that the Petitioner’s applications had not been prejudiced by the ineffective assistance of his counsel.” Petr.’s Br. 7. Fadiga argues that the alleged errors of counsel in failing to prepare him for the hearing or to inform him of the types of evidence that might be helpful to his application were “fundamental” and “deprived [him] of any real opportunity to produce evidence to substantiate and corroborate his claims.” Petr.’s" }, { "docid": "16998763", "title": "", "text": "“maintain religious freedom.” For support, Salim submitted over 100 pages of evidence documenting the rising violence against Indonesian Christian communities. Salim additionally presented a sworn personal declaration attesting to his fear of returning to Indonesia as a Catholic, as well as a letter from his sister in Jakarta describing the. recent targeting of their local church. On May 8, 2013, in a page-long opinion, the BIA denied Salim’s motion to reopen as untimely. According to the BIA, Salim had failed to meet the changed country conditions exception because the material attached to his motion was “largely cumu lative of the evidence presented when this case was last before the Immigration Judge.” Furthermore, the BIA stated that, “[t]here is nothing in the evidence submitted that relates specifically to the respondent.” Finally, the BIA noted that while Salim’s motion was based on his fear of persecution as a Catholic, he had “previously indicated that he is a Buddhist.” Salim timely petitioned for review of the BIA’s decision, and the instant petition for review followed. II. Standard of Review We review the denial of a motion to reopen for abuse of discretion. Perez v. Mukasey, 516 F.3d 770, 773 (9th Cir. 2008). We review the BIA’s determination of legal questions de novo, and factual findings for substantial evidence. Bhasin v. Gonzales, 423 F.3d 977, 983 (9th Cir. 2005). III. Analysis A. Changed Country Conditions Judicial review of a motion to reopen serves as a “safety valve” in the asylum process. Fernandez v. Gonzales, 439 F.3d 592, 602 (9th Cir. 2006) (citation omitted). Such oversight “ensurefs] that the BIA lives by its rules and at least considers new information” bearing on applicants’ need for and right to relief. Pilica v. Ashcroft, 388 F.3d 941, 948 (6th Cir. 2004). Salim’s case demonstrates the importance of this authority. Here, the BIA committed both legal and factual error when it declared that Salim’s motion to reopen, filed on an entirely distinct ground from his prior request for relief, was “cumulative” of the information presented at his previous hearing. To meet the changed country conditions exception, a petitioner’s" }, { "docid": "22735512", "title": "", "text": "motion to reopen his case and on July 23, 2007, Chen filed the petition now before us to review the BIA’s decision and order. III. JURISDICTION AND STANDARD OF REVIEW Zheng and Chen correctly assert that the BIA had jurisdiction under 8 C.F.R. § 1003.2(c). We have jurisdiction over the present petitions for review pursuant to 8 U.S.C. § 1252. We review the denial of a motion to reopen for abuse of discretion. Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir.2004). We will not disturb the BIA’s decisions “unless they are found to be arbitrary, irrational, or contrary to law.” Id. (internal citations and quotation marks omitted). IV. DISCUSSION The general criteria governing motions to reopen set forth in 8 C.F.R. § 1003.2(c)(1) provide that: A motion to reopen proceedings shall state the new facts that will be proven at a hearing to be held if the motion is granted and shall be supported by affidavits or other evidentiary material. A motion to reopen proceedings for the purpose of submitting an application for relief must be accompanied by the appropriate application for relief and all supporting documentation. A motion to reopen proceedings shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing .... Although a motion to reopen “must be filed no later than 90 days after the date on which the final administrative decision was rendered in the proceeding sought to be reopened,” 8 C.F.R. § 1003.2(c)(2), the 90-day limitation does not apply if the movant seeks reopening “based on changed circumstances arising in the country of nationality or in the country to which deportation has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii). The Supreme Court has set forth three bases on which the BIA can deny a motion to reopen: First, it may hold that the movant has failed to establish a prima" }, { "docid": "22319359", "title": "", "text": "BIA’s February 23, 2004 order denying Filja’s motion to reopen. II. Jurisdiction and Standard of Review We have jurisdiction of the Filjas’ petition under 8 U.S.C. § 1252, which grants federal courts of appeals jurisdiction to review final orders of the BIA. We must uphold the BIA’s factual findings if they are “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 480, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). We review the BIA’s conclusions of law de novo. We review the BIA’s denial of a motion to reopen for abuse of discretion, Lu v. Ashcroft, 259 F.3d 127, 131 (3d Cir.2001), and review its underlying factual findings related to the motion for substantial evidence. Sevoian v. Ashcroft, 290 F.3d 166, 170 (3d Cir.2002). The BIA’s denial of a motion to reopen may only be reversed if it is “arbitrary, irrational, or contrary to law.” Id. at 174 (internal quotation marks omitted). III. Discussion A. Timeliness' of Petition to Reopen: The IJ held the Filjas’ asylum hearing on June 28, 1996, denying asylum and withholding of deportation on January 16,1997. In June 1997, the Socialist Party returned to power in Albania. On March 19, 2002, the BIA dismissed the Filjas’ appeal. On October 9, 2003, the Filjas moved under 8 C.F.R. § 1003.2(c)(3)(ii) to reopen and to remand to the IJ to reapply for asylum and withholding of deportation due to changed country conditions and to apply for relief under the CAT. The BIA held that the motion to reopen was untimely, interpreting § 1003.2(c) as requiring that, although the country conditions in Albania had changed subsequent to the date of the IJ’s 1997 decision, the motion should have been made prior to the BIA’s March 19, 2002 decision. Under the applicable regulation, a motion to reopen removal proceedings “must be filed no later than 90 days after the date on which the final administrative decision was rendered in the proceeding sought to be reopened.” 8 C.F.R. § 1003.2(c)(2). Excepted from this time limitation set forth in paragraph (c)(2) are" }, { "docid": "13101123", "title": "", "text": "Jurisdiction and Standard of Review The BIA has jurisdiction over motions to reopen removal proceedings pursuant to 8 C.F.R. § 1003.2(a). We have jurisdiction over Abulashvili’s petition for review pursuant to 8 U.S.C. § 1252. “We review a final order of the BIA denying a motion to reopen for abuse of discretion.” Mahmood v. Gonzales, 427 F.3d 248, 250 (3d Cir.2005) (citation omitted). Under this standard, we may reverse the BIA’s denial of a motion to reopen if it is “arbitrary, irrational, or contrary to law.” Zheng v. Att’y Gen., 549 F.3d 260, 265 (3d Cir.2008). Because the BIA’s original order of removal adopted the findings of the IJ and discussed the reasons behind the IJ’s decision, we review the decisions of both the IJ and the BIA. See Zheng v. Gonzales, 417 F.3d 379, 381 (3d Cir.2005). “Adverse credibility determinations are factual findings subject to substantial evidence review.” Tarrawally v. Ashcroft, 338 F.3d 180, 184 (3d Cir.2003). We will defer to and uphold the IJ’s adverse credibility determination if it is “supported by reasonable, substantial, and probative evidence on the record considered as a whole,” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992), but such findings must be based on inconsistencies and improbabilities that “go to the heart of the asylum claim.” Id.; see also Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002). III. Discussion A. The Motion to Reopen Although Abulashvili’s motion to reopen was untimely, the BIA may nonetheless consider the motion if it was “based on changed country conditions arising in the country of nationality.” 8 C.F.R. § 1003.2(c)(2). Under these circumstances, an alien must: (1) produce evidence demonstrating that conditions have changed in his country of nationality; (2) demonstrate that this evidence is material; and (3) establish that the evidence was not available and could not have been presented at the previous proceeding. Id.; see also Zheng v. Att’y Gen., 549 F.3d 260, 265 (3d Cir.2008). Here, the BIA found that Abulashvili had met the first and third factors, but not the second. Specifically, the BIA determined there" }, { "docid": "22339310", "title": "", "text": "country condition and that his position as a former local leader of the Jatiya Party made it likely that he would be persecuted if returned to Bangladesh. The Board denied his motion to reopen in a three-paragraph order, which concluded that Shardar had “not adequately demonstrated that his situation is appreciably different from the dangers faced by all his countrymen,” and that he had “failed, to establish [that] materially changed country conditions exist in Bangladesh.” Shardar filed a timely petition for review of the Board’s order. II. Jurisdiction and Standard of Review The BIA has jurisdiction over motions to. reopen removal proceedings under 8 C.F.R. § 1003.2(a). Our Court has jurisdiction over Shardar’s petition for review under 8 U.S.C. § 1252. Cruz v. Att’y Gen., 452 F.3d 240, 246 (3d Cir.2006) (“Congress has explicitly granted federal courts the power to review ‘any final order of removal’ under 8 U.S.C. § 1252(a)(1). Implicit in this jurisdictional grant is the authority to review the denial of a motion to reopen any such final order.”). “We review the BIA’s denial of a motion to reopen for abuse of discretion ... and review its underlying factual findings related to the motion for substantial evidence.” Filja v. Gonzales, 447 F.3d 241, 251 (3d Cir.2006) (internal citation omitted). Its “denial of a motion to reopen may only be reversed if it is ‘arbitrary, irrational, or contrary to law.’ ” Id. (quot ing Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir.2002)). III. Discussion A. Introduction The resolution of this appeal turns on two related but analytically distinct issues: (1) whether Shardar has presented evidence of changed country conditions sufficient to allow him to file a motion to reopen more than 90 days after the Board rejected his claims; and (2) whether the new evidence Shardar has presented and the prior evidence in the record together show that he has a reasonable likelihood of prevailing on his asylum claim, ie., whether he has presented a prima facie case for ' asylum. The first is a threshold question: does the new evidence show a change in country conditions" }, { "docid": "22638892", "title": "", "text": "had not made, and determined that Borges had failed in some unspecified way to comply, as an initial matter, with Lozada and that this “fundamental defect” could not be remedied by his “subsequent” compliance. The BIA did not address Borges’s argument that the 180-day requirement should be equitably tolled because of fraud. Finally, the BIA concluded, based on the competing affidavits of Borges and Placeres, that Placeres’s denial that he told Ivan to tell Borges not to appear at the February 3 removal hearing had the “ring of truth” and, thus, that Borges had not established the prejudice component of his ineffective assistance of counsel claim. Al-2. Borges timely appealed to this Court, and on April 22, 2004, we issued a stay of removal pending appeal. II. We have jurisdiction under 8 U.S.C. § 1252(a) (1952) (amended 1996). We review the denial of a motion to reopen under an abuse of discretion standard. Shardar v. Ashcroft, 382 F.3d 318, 324 (3d Cir.2004). The denial of a motion to reconsider is also reviewed for abuse of discretion. See INS v. Abudu, 485 U.S. 94, 109-10, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988). We will disturb the BIA’s denial of a motion to reopen or to reconsider only if it was “arbitrary, irrational, or contrary to law.” Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir.2004) (internal citation omitted). In ruling on questions of law, we review the BIA’s legal conclusions de novo. Smriko v. Ashcroft, 387 F.3d 279, 282 (3d Cir.2004). We review factual determinations under a “substantial evidence” standard, which requires us to treat findings of fact as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Ambartsoumian v. Ashcroft, 388 F.3d 85, 89 (3d Cir.2004). III. If an alien or his counsel of record has been provided with written notice of a removal proceeding, and the alien does not attend, he “shall be ordered removed in absentia if the [DHS] establishes by clear, unequivocal, and convincing evidence that the written notice was so provided and that the alien is" } ]

[ { "docid": "22113609", "title": "", "text": "here. Mr. Dorris cannot show any error by the district court in fixing his sentence. Thus, under either standard of review, his claim must fail. B. APPRENDI Mr. Dorris faces an uphill battle in arguing his sentence to be in error for failing to charge his previous felonies. Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), held prior felony convictions as mere sentence enhancements, not elements of an offense. Despite the Apprendi majority’s failure to overturn Almendarez-Torres, Apprendi, 120 S.Ct. at 2362, Mr. Dorris argues Almendarez-Torres was effectively overruled in Apprendi. He cites for this proposition Justice Thomas’ concurrence in Apprendi, , the dissenters in Almendarez-Torres, several intervening concurrences and dissents, and the Apprendi majority’s criticism of Almenda-rez-Torres, Nevertheless, Almendarez-Torres has not been overruled and directly controls our decision in this case. Mr. Dorris argues he makes his appeal in part to preserve his argument for the Supreme Court. He has done so, but that does not warrant this Court to grant him relief. See Agostini v. Felton, 521 U.S. 203, 237, 117 S.Ct. 1997, 138 L.Ed.2d 391 (“If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.”). Further, Apprendi itself carves out an exception for previous convictions: “other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 120 S.Ct. at 2362-63 (emphasis added). In doing so, the majority explained use of a prior conviction to increase a defendant’s sentence does not implicate the same con cerns as other sentencing enhancements because the defendant’s previous conviction was accompanied by all the procedural safeguards required in a criminal prosecution. Apprendi, 120 S.Ct. at 2362. Mr. Dorris’ Apprendi claim must fail accordingly. AFFIRMED. . See United States v. Gateward, 84 F.3d 670 (3d Cir.1996);" } ]

[ { "docid": "2787214", "title": "", "text": "Supreme Court held that prior convictions were not among the sentence-enhancers that must be submitted to a jury and proved beyond a reasonable doubt. Id. at 490, 120 S.Ct. 2348; see also Campbell, 300 F.3d at 212-13. In so doing, the Court left undisturbed that portion of Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), which treated prior convictions as sentencing factors, rather than offense elements. Although appellants point to justice Thomas’s concurring opinion in Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) that questioned the continuing viability of Almendarez-Torres, “[w]e have ruled with a regularity bordering on the monotonous, that given the explicit exception and force of Almendarez-Torres, the rationale of Apprendi does not apply to sentence-enhancement provisions based upon prior criminal convictions.” United States v. Ivery, 427 F.3d 69, 74-75 (1st Cir.2005)(internal quotations and citations omitted). Here, the district court had before it the appellants’ generalized stipulation that they had previously been convicted of a felony punishable by more than one year as well as the PSRs which specifically noted that the appellants had previously pled guilty to using a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1). The appellants attempt to shrug off the yoke of Apprendi, Almendarez-Torres, and Mejia by arguing that Shepard limits the district court’s consideration to a charging document, written plea agreement or plea colloquy. We disagree. Shepard involved a determination whether certain predicate offenses were “crimes of violence,” within the meaning of the ACCA. Given the factual inquiry involved, the Court limited the type of fact-finding that could be permissibly conducted by the trial judge. Shepard, 544 U.S. at 24-26, 125 S.Ct. 1254. Here, by contrast, the district court needed only to find that the prior convictions were under section 924(c), a fact which was both undisputed by the defendants and readily apparent from the PSR. Cf. United States v. Brown, 510 F.3d 57, 74-75 (1st Cir.2007) (district court may not rely solely on factual assertions in PSR if defendant contests" }, { "docid": "23388172", "title": "", "text": "530 U.S. at 487, 120 S.Ct. 2348. The Court has justified this “departure” on the ground that the defendant in Almendarez-Torres “did not challenge the accuracy of [the prior conviction] in his case” and that the prior conviction arose “pursuant to proceedings with substantial procedural safe guards of their own.” Id. at 488, 120 S.Ct. 2348. The Court reasoned that these twin protections “mitigated the due process and Sixth Amendment concerns otherwise implicated in allowing a judge to determine a ‘fact’ increasing punishment beyond the maximum of the statutory range.” Id. Four Justices dissented in Almendarez-Torres. Justice Thomas, who joined the Almendarez-Torres majority, has subsequently stated that he believes the case was wrongly decided. See Shepard v. United States, 544 U.S. 13, 28, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) (Thomas, J., concurring). Moreover, the Supreme Court’s recent characterizations of the Sixth Amendment are difficult, if not impossible, to reconcile with Almendarez-Torres’s lonely exception to Sixth Amendment protections. See Alleyne, 133 S.Ct. at 2160 (“any facts that increase the prescribed range of penalties to which a criminal defendant is exposed are elements of the crime” that a jury must find beyond a reasonable doubt (quotation marks omitted)); Shepard, 544 U.S. at 25, 125 S.Ct. 1254 (“[T]he Sixth and Fourteenth Amendments guarantee a jury standing between a defendant and the power of the State, and they guarantee a jury’s finding of any disputed fact essential to increase the ceiling of a potential sentence.”). Notwithstanding these recent cases, however, Almendarez-Torres remains good law, and we may not disregard it unless and until the Supreme Court holds to the contrary. See Agostini v. Felton, 521 U.S. 203, 237, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997) (if a Supreme Court precedent directly controls, “yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to [the Supreme] Court the prerogative of overruling its own decisions” (quotation marks omitted)). But even as we reject McDowell’s Sixth Amendment claim, we feel bound to acknowledge its force. The rationales justifying the Almendarez-Torres exception" }, { "docid": "22090344", "title": "", "text": "aggravating factors on which the judge relied in sentencing Butler was established in a manner consistent with the Sixth Amendment, Butler’s sentence does not violate the Constitution. Any additional factfinding was relevant only to selection of a sentence within the statutory range. 2. Probation and the “Prior Conviction” Exception. The trial court imposed an upper term sentence on Butler based on two aggravating factors: his victim was particularly vulnerable, and he was on probation at the time he committed the assault. The State argues that Butler’s sentence does not violate the Constitution because the fact that Butler was on probation at the time of the crime was found in a manner consistent with the Constitution. We cannot agree with the State’s premise — ’that the narrow exception for prior convictions extends to a defendant’s probationary status at the time of the instant crime. In Almendarez-Torres, the Supreme Court determined that the fact of a prior conviction for an aggravated felony need not be pleaded in an indictment or proved to a jury beyond a reasonable doubt. 523 U.S. at 247, 118 S.Ct. 1219. Subsequent sentencing cases, however, have substantially undermined the basis for this conclusion. Distinguishing Almendarez-Torres, Apprendi characterized the “prior conviction” exception as at best “an exceptional departure from” historic sentencing practice, 530 U.S. at 487, 120 S.Ct. 2348, and observed that it is “arguable that Almen-darez-Torres was incorrectly decided, and that a logical application of our reasoning today should apply if the recidivist issue were contested,” id. at 489-90, 120 S.Ct. 2348. See also id. at 518-19, 120 S.Ct. 2348 (Thomas, J., concurring) (concluding that Almendarez-Torres was wrongly decided); Shepard v. United States, 544 U.S. 13, 27-28, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) (Thomas, J., concurring in part and in the judgment) (observing that “a majority of the Court now recognizes that Al-mendarez-Torres was wrongly decided” and suggesting that, “in an appropriate case, this Court should consider Almenda-rez-Torres’ continuing viability”). Nonetheless, the Supreme Court has not overruled the Almendarez-Torres exception for prior convictions, continuing to hold that “[o]ther than the fact of a prior conviction, any fact" }, { "docid": "23216120", "title": "", "text": "the jury beyond a reasonable doubt. As we explain below, the Government is not required to do so (indeed, it is not required to charge them in the indietment) under current Supreme Court precedent. This issue is controlled by Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), which held that prior convictions that increase the statutory maximum for an offense are not elements of the offense and thus may be determined by the District Court by a preponderance of the evidence. See id. at 243, 118 S.Ct. 1219 (“[R]ecidivism ... is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence.”). This holding was preserved in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (emphasis added)), and Booker, 543 U.S. at 244, 125 S.Ct. 738 (same). Moreover, we have held expressly that the Almendarez-Torres exception survived Booker and its antecedents. See United States v. Ordaz, 398 F.3d 236, 241 (3d Cir.2005) (noting “a tension between the spirit of Blakely [v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004),] and Booker that all facts that increase the sentence should be found by a jury and the Court’s decision in Almenda-rez-Torres, which upholds sentences based on facts found by judges rather than juries,” but concluding that “[t]he holding in Almendarez-Torres remains binding law, and nothing in Blakely or Booker holds otherwise”). Coleman contends, however, that the Supreme Court’s decision in Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), decided two weeks after our decision in Ordaz, calls into question the continuing validity of Almenda-rez-Torres, and he urges us to rely on Shepard as authority to limit Almendarez-Torres to its facts and deem it inapplicable to his Sixth Amendment challenge. We rejected precisely this argument in a non-precedential opinion earlier this" }, { "docid": "1789709", "title": "", "text": "had just been deported, regardless of what name he was using at the time, and he therefore needed the Attorney General’s contemporaneous permission before he could legally re-enter. 8 U.S.C. § 1326(a). If Garcia had been deported under his real name, his green card likely would have been revoked, and in any event obviously would not constitute such permission. He can gain no advantage from having deceived the INS about his identity. C. The Almendarez-Torres Issue Garcia argues that his conviction must be vacated because the district court did not submit to the jury the question of his underlying 1995 drug conviction. He argues that the district court was required to do so because Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), in which the Supreme Court held that the prior conviction is a mere sentencing factor for § 1326(b) purposes, id. at 235, 118 S.Ct. 1219, has been overruled by subsequent case law. He relies on Justice Thomas’ concurrence in Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), which stated that in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and subsequent Sixth Amendment jurisprudence, “a majority of the Court now recognizes that Almendarez-Torres was wrongly decided.” Shepard, 125 S.Ct. at 1264 (Thomas, J., concurring in part and concurring in the judgment). As an initial matter, we note that Garcia seems to be mixing apples and oranges in challenging his conviction on this basis. The cases upon which he relies largely go to whether a judge may consider a prior conviction for sentencing purposes when that conviction has not been found by a jury beyond a reasonable doubt. See id. (“Innumerable criminal defendants have been unconstitutionally sentenced under the flawed rule of Almendarez-Torres ....”) (emphasis added). Perhaps Garcia is making a sentencing argument. Either way, however, Garcia’s argument fails. Garcia stipulated to the pri- or conviction at trial: his counsel not only affirmatively told the jury about the fact of a prior conviction and agreed to the entry into" }, { "docid": "22558028", "title": "", "text": "deported subsequent to a conviction for a crime of violence, the court increased Beng’s offense level by sixteen levels. The court also found that Beng was in Criminal History Category III. With an adjusted offense level of twenty-four, the court calculated Beng’s Guideline range to be sixty-three to seventy-eight months. The district judge sentenced Beng to seventy months in prison followed by three years of supervised release. Beng timely appealed. II. Discussion A. Challenges to Almendarez-Torres and 8 U.S.C. § 1826(b) We first dispose of two of Beng’s sentencing challenges, which are foreclosed by our case law. Under § 1326(b)(2), the maximum penalty for illegal reentry is increased from two years to twenty years in prison if the defendant was previously removed subsequent to a conviction for an aggravated felony. In Almendarez-Torres, the Supreme Court held that “subsection [ (b) of 8 U.S.C. § 1326] is a penalty provision, which simply authorizes a court to increase the sentence for a recidivist. It does not define a separate crime. Consequently, neither the statute nor the Constitution requires the- Government to charge the factor that it mentions, an earlier conviction, in the indictment.” 523 U.S. at 226-27,118 S.Ct. 1219. On appeal, Beng abandons his claim that Almendarez-Torres implicitly has been overruled by subsequent Supreme Court precedent, but renews his argument that recent decisions of the Supreme Court limit Almendarez-Torres’s holding to cases where a defendant has admitted his prior convictions during a guilty plea. He cites Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), and Dretke v. Haley, 541 U.S. 386, 124 S.Ct. 1847, 158 L.Ed.2d 659 (2004), in support. Because Beng did not admit his prior convictions, and because they were neither charged in his indictment nor proved to a jury, he asserts that they could not be used to enhance his offense level or calculate his Criminal History Category. Beng makes a separate but related argument that 8 U.S.C. § 1326(b) is unconstitutional because it permits a judge to increase a defendant’s statutory-maximum sentence for a § 1326 .violation from two years to ten" }, { "docid": "22090345", "title": "", "text": "doubt. 523 U.S. at 247, 118 S.Ct. 1219. Subsequent sentencing cases, however, have substantially undermined the basis for this conclusion. Distinguishing Almendarez-Torres, Apprendi characterized the “prior conviction” exception as at best “an exceptional departure from” historic sentencing practice, 530 U.S. at 487, 120 S.Ct. 2348, and observed that it is “arguable that Almen-darez-Torres was incorrectly decided, and that a logical application of our reasoning today should apply if the recidivist issue were contested,” id. at 489-90, 120 S.Ct. 2348. See also id. at 518-19, 120 S.Ct. 2348 (Thomas, J., concurring) (concluding that Almendarez-Torres was wrongly decided); Shepard v. United States, 544 U.S. 13, 27-28, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) (Thomas, J., concurring in part and in the judgment) (observing that “a majority of the Court now recognizes that Al-mendarez-Torres was wrongly decided” and suggesting that, “in an appropriate case, this Court should consider Almenda-rez-Torres’ continuing viability”). Nonetheless, the Supreme Court has not overruled the Almendarez-Torres exception for prior convictions, continuing to hold 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, 530 U.S. at 490, 120 S.Ct. 2348 (emphasis added); see also Booker, 543 U.S. at 244, 125 S.Ct. 738; Blakely, 542 U.S. at 301, 124 S.Ct. 2531. Concommittantly, we have repeatedly recognized our obligation to apply the Almen- darez-Torres exception, unless and until it is rejected by the Supreme Court. See, e.g., United States v. Lopez, 500 F.3d 840, 848 (9th Cir.2007), cert. denied, — U.S. -, 128 S.Ct. 950, 169 L.Ed.2d 782 (2008); United States v. Diaz-Argueta, 447 F.3d 1167, 1170 (9th Cir.2006); United States v. Weiland, 420 F.3d 1062, 1079 n. 16 (9th Cir.2005). We are left, then, with the task of determining the outer bounds of the “prior conviction” exception after Apprendi. We find some guidance in Shepard, which addressed the kind of evidence on which a court may rely in determining whether a prior conviction constitutes a crime of violence for purposes of the Armed Career" }, { "docid": "22134112", "title": "", "text": "denied, — U.S. -, 126 S.Ct. 221, 163 L.Ed.2d 193 (2005). Here, we find no error, plain or otherwise. First, Martinez’s constitutional arguments are premised, in part, on the assumption that his uncharged prior convictions cannot be used to increase his statutory maximum sentence or his guidelines range. Martinez acknowledges that his position conflicts with Almendarez-Torres v. United States. See Almendarez-Torres v. United States, 523 U.S. 224, 247, 118 S.Ct. 1219, 1233, 140 L.Ed.2d 350 (1998) (concluding that prior convictions need not be pled in an indictment or proved to a jury beyond a reasonable doubt to trigger enhanced statutory máxi-mums under 8 U.S.C. § 1326). Martinez argues that Almendarez-Torres has been undermined by subsequent Supreme Court decisions such as Apprendi, Blakely, Booker, and, most recently, Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 1262-63, 161 L.Ed.2d 205 (2005). While those recent decisions “may arguably cast doubt on the future prospects of AlmendarezTorres’s holding regarding prior convictions, the Supreme Court has not explicitly overruled Almendarez-Torres. As a result, we must follow Almendarez-Torres.” United States v. Camacho-Ibarquen, 410 F.3d 1307, 1316 n. 3 (11th Cir.), cert. denied, — U.S. —, 126 S.Ct. 457, 163 L.Ed.2d 347 (2005). Therefore, Apprendi and Blakely did not preclude the district court from enhancing Martinez’s sentence based on uncharged prior convictions. Second, this Court has already rejected the due process arguments Martinez makes. See United States v. Duncan, 400 F.3d 1297, 1307 (11th Cir.), cert. denied, — U.S. —, 126 S.Ct. 432, 163 L.Ed.2d 329 (2005) (concluding that the defendant’s due process rights were not violated where, at the time the defendant committed the offense, the United States Code and the guidelines advised the defendant of the statutory maximum sentence and “that a judge would engage in fact-finding to determine his sentence and could impose up to” the statutory maximum sentence). At the time Martinez committed his offense in 2003, 8 U.S.C. § 1326(b)(2) ad vised Martinez that, if he was convicted of being found in the United States after having been convicted of an aggravated felony and then removed from the United States," }, { "docid": "21097050", "title": "", "text": "jury was entitled to “choose among various reasonable constructions of the evidence.” See United States v. Robinson, 161 F.3d 463, 472 (7th Cir.1998) (quoting United States v. Rose, 12 F.3d 1414, 1420 (7th Cir.1994)). B. Findings as to Criminal History Stevens’s sentence of 240 months’ imprisonment exceeded the otherwise applicable statutory maximum of 120 months. See 18 U.S.C. § 924(a)(2). Stevens faced a higher sentence because of the Armed Career Criminal Act, 18 U.S.C. § 924(e) (the “Act”). The Act provides that a defendant who is found to be a felon in possession “and has three previous convictions ... for a violent felony ... committed on occasions different from one another ... shall be ... imprisoned not less than fifteen years.” The district judge made a factual finding that Stevens had three previous qualifying felonies. Stevens argues his Sixth Amendment rights were violated because the three convictions were not presented to a grand jury for indictment or submitted to the jury for fact-finding as an element of the offense in the instant case. Stevens properly concedes the law is clearly against him. In Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), the Supreme Court “held that the existence of a prior conviction need not be alleged in the indictment or proven to a jury as an element of the offense, but rather may be determined by the judge at sentencing, even if the prior conviction increases the statutory maximum sentence that may be imposed on the defendant.” United States v. Williams, 410 F.3d 397, 401 (7th Cir.2005) (citing Almendarez-Torres). As we have noted, Almendarez-Torres remains intact, notwithstanding the subsequent decisions in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). See id. at 402; see also Shepard v. United States, 544 U.S. 13, 24-26, 37-38, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) (acknowledging the continuing validity of Almendarez-Torres) (plurality and dissenting" }, { "docid": "22558029", "title": "", "text": "requires the- Government to charge the factor that it mentions, an earlier conviction, in the indictment.” 523 U.S. at 226-27,118 S.Ct. 1219. On appeal, Beng abandons his claim that Almendarez-Torres implicitly has been overruled by subsequent Supreme Court precedent, but renews his argument that recent decisions of the Supreme Court limit Almendarez-Torres’s holding to cases where a defendant has admitted his prior convictions during a guilty plea. He cites Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), and Dretke v. Haley, 541 U.S. 386, 124 S.Ct. 1847, 158 L.Ed.2d 659 (2004), in support. Because Beng did not admit his prior convictions, and because they were neither charged in his indictment nor proved to a jury, he asserts that they could not be used to enhance his offense level or calculate his Criminal History Category. Beng makes a separate but related argument that 8 U.S.C. § 1326(b) is unconstitutional because it permits a judge to increase a defendant’s statutory-maximum sentence for a § 1326 .violation from two years to ten or twenty years, in violation of Apprendi. In adopting the PSR’s recommendations, the court effectively increased Beng’s maximum potential sentence to twenty years, based on § 1326(b)(2). Our decision in United States v. Rodriguez-Lara, 421 F.3d 932, 949-50 (9th Cir.2005), affirming the continued validity of Almendarez-Torres and rejecting a challenge to § 1326(b), forecloses these arguments. See also United States v. Lopez-Torres, 443 F.3d 1182, 1185 (9th Cir.2006) (“We have repeatedly rejected [the] argument [that subsequent cases undermine the holding in Almendarez-Torres ], and do so again here.”); United States v. Quintana-Quintana, 383 F.3d 1052 (9th Cir.2004) (reaffirming the constitutionality of 8 U.S.C. § 1326(b) in the wake of Apprendi and Blakely), cert. denied, 543 U.S. 1130, 125 S.Ct. 1100, 160 L.Ed.2d 1085 (2005). B. Preservation >of Error Although Beng’s Sixth Amendment arguments fail, we hold that his invocation of them in district court was sufficient to preserve a challenge to the nonconstitu-tional error identified in Booker, i.e., the fact that Beng was sentenced under the mandatory Guidelines system. 1. Apprendi and its progeny give" }, { "docid": "22134111", "title": "", "text": "the § 3553(a) factors or to discuss each of the § 3553(a) factors.” Scott, 426 F.3d at 1329. Martinez’s argument that his criminal history was disproportionately emphasized likewise fails. Martinez admitted that his criminal history had been correctly scored. Furthermore, contrary to Martinez’s claim in his brief, Espinosa-Echavarria did not testify at the sentencing hearing that those offenses were false or exaggerated. Espi-nosa-Echavarria’s testimony consisted only of a request that the judge place Martinez in a facility as near to her as possible so that she could visit him while he was in custody. In short, nothing in the record convinces us that Martinez’s sentence was unreasonable in light of the § 3553(a) factors. C. Martinez’s Constitutional Claims On appeal, Martinez for the first time raises arguments that his sentence violated the Due Process Clause and the principles of Apprendi and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). We review his newly raised constitutional arguments for plain error. United States v. Fields, 408 F.3d 1356, 1360 (11th Cir.), cert. denied, — U.S. -, 126 S.Ct. 221, 163 L.Ed.2d 193 (2005). Here, we find no error, plain or otherwise. First, Martinez’s constitutional arguments are premised, in part, on the assumption that his uncharged prior convictions cannot be used to increase his statutory maximum sentence or his guidelines range. Martinez acknowledges that his position conflicts with Almendarez-Torres v. United States. See Almendarez-Torres v. United States, 523 U.S. 224, 247, 118 S.Ct. 1219, 1233, 140 L.Ed.2d 350 (1998) (concluding that prior convictions need not be pled in an indictment or proved to a jury beyond a reasonable doubt to trigger enhanced statutory máxi-mums under 8 U.S.C. § 1326). Martinez argues that Almendarez-Torres has been undermined by subsequent Supreme Court decisions such as Apprendi, Blakely, Booker, and, most recently, Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 1262-63, 161 L.Ed.2d 205 (2005). While those recent decisions “may arguably cast doubt on the future prospects of AlmendarezTorres’s holding regarding prior convictions, the Supreme Court has not explicitly overruled Almendarez-Torres. As a result, we must follow Almendarez-Torres.” United" }, { "docid": "23567457", "title": "", "text": "408, 440 (6th Cir.1999) (affirming the district court’s overruling of Batson challenge where prosecutor was unaware that stricken jurors were African-American). We affirm the District Court. E. Twenty-Year Mandatory Sentence on Basis of Prior Drug Conviction Watford contends that the 20-year mandatory sentence of 21 U.S.C. § 841(b)(l)(A)(iii) is unconstitutional on its face and as applied by the District Court. Specifically, Watford argues that the fact of his prior drug conviction was neither admitted nor proven to the jury beyond a reasonable doubt, and that its use in increasing his sentencing range violates the Sixth Amendment, as recognized in Apprendi. He characterizes contrary Supreme Court precedent as “most likely ready to be overruled.” (Appellant’s Br. 47.) See Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002); Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). We review a criminal defendant’s constitutional challenge to his sentence de novo, and we review the district court’s underlying factual determinations under the “clearly erroneous” standard. United States v. Henderson, 209 F.3d 614, 617 (6th Cir.2000); Lloyd, 10 F.3d at 1220. Watford’s argument has no merit. In Apprendi, the Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490, 120 S.Ct. 2348 (emphasis added); see also United States v. Booker, 543 U.S. 220, 244, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) (reaffirming same). Although at least one Supreme Court Justice has since criticized the prior conviction exception to the Sixth Amendment, see Shepard v. United States, 544 U.S. 13, 28, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) (Thomas, J„ concurring in part and concurring in the judgment), this Court continues to recognize its viability. See, e.g., United States v. Barnett, 398 F.3d 516, 524-25 (6th Cir.2005). We are bound by the Supreme Court’s statements in Apprendi and Booker until and unless they are revised by the Supreme Court. Therefore, we reject Watford’s argument" }, { "docid": "3044746", "title": "", "text": "sufficiency challenge, to say nothing of the plain error standard that applies in this case, there was sufficient evidence for the jury to find, beyond a reasonable doubt, that Diaz possessed the firearm and ammunition. C. Sentencing Enhancement Diaz also protests the ACCA sentencing enhancement applied by the dis trict court, arguing that his Sixth Amendment rights were violated because the enhancement was based on prior convictions that were never presented to the jury and proved beyond a reasonable doubt. Constitutional challenges to ACCA enhancements are subject to de novo review. See United States v. Duval, 496 F.3d 64, 80 (1st Cir.2007). We hold, as we have held before, that this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 226-27, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998)(holding that fact of prior conviction for sentencing purposes need not be proved to jury beyond reasonable doubt). See United States v. Earle 488 F.3d 537, 549 (1st Cir.2007); Ivery, 427 F.3d at 74-75. Diaz notes that Justice Thomas, in a recent concurrence, cast doubts on the continuing viability of Almendarez-Torres. See Shepard v. United States, 544 U.S. 13, 27-28, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005)(Thomas, J., concurring). Diaz relies on a line of Supreme Court cases from Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), to Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), through Shepard and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), to buttress his argument. This court has rejected nearly identical arguments in the past, however, observing that “[t]he Shepard majority noted the possibility that Apprendi may eventually be extended to require proof of prior convictions to a jury, but cautioned that this ‘is up to the future to show.’ ... [B]oth Blakely and Booker recognized the continued viability of the Almendarez-Torres exception.” Ivery, 427 F.3d at 75 (quoting Shepard, 544 U.S. at 26 n. 5, 125 S.Ct. 1254). Unless and until a majority of the Supreme Court decides otherwise, Almendarez-Torres continues to be binding precedent upon this" }, { "docid": "21097051", "title": "", "text": "concedes the law is clearly against him. In Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), the Supreme Court “held that the existence of a prior conviction need not be alleged in the indictment or proven to a jury as an element of the offense, but rather may be determined by the judge at sentencing, even if the prior conviction increases the statutory maximum sentence that may be imposed on the defendant.” United States v. Williams, 410 F.3d 397, 401 (7th Cir.2005) (citing Almendarez-Torres). As we have noted, Almendarez-Torres remains intact, notwithstanding the subsequent decisions in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). See id. at 402; see also Shepard v. United States, 544 U.S. 13, 24-26, 37-38, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) (acknowledging the continuing validity of Almendarez-Torres) (plurality and dissenting opinions). In light of the current status of the law, Stevens’s claim must fail. Unless or until the Supreme Court overrules Almendarez-Torres, “the district court does not violate a defendant’s Sixth Amendment right to a jury trial by making findings as to his criminal record that expose him to greater criminal penalties.” Williams, 410 F.3d at 402 (citations omitted).' Stevens makes clear that his real intent is to preserve his right to seek review of this issue by the Supreme Court. We note Stevens timely raised the issue both before us and the district court, and his counsel admirably presented to us his argument on the subject. III. CONCLUSION For the reasons set forth above, Stevens’s convictions and sentence are Affirmed. . The testimony indicated the gun could not remain in its position while the vehicle was in motion. . Stevens does not dispute he has three prior violent felony convictions." }, { "docid": "21291881", "title": "", "text": "less than fifteen years.” The district court does not violate a defendant’s Sixth Amendment right to a jury trial by making findings as to his criminal record that expose him to greater criminal penalties. United States v. Williams, 410 F.3d 397, 402 (7th Cir.2005). In Almendarez-Torres v. United States, the Supreme Court held that recidivism used to enhance a defendant’s penalty need not be found beyond a reasonable doubt, but instead is a sentencing factor. 523 U.S. 224, 239, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). As we noted in United States v. Stevens, 453 F.3d 963, 967 (7th Cir.2006), Almendarez-Torres remains intact, notwithstanding subsequent decisions. See, e.g., Apprendi v. New Jersey, 530 U.S. 466, 489, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (holding that “[o]ther than the fact of a prior conviction, any fact that increases the prescribed maximum must be submitted to a jury and proven beyond a reasonable doubt”); Shepard v. United States, 544 U.S. 13, 24-26, 37-38, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) (acknowledging the continuing validity of Almendarez-Torres); see also United States v. Skidmore, 254 F.3d 635, 642 (7th Cir.2001) (holding that an enhancement under 18 U.S.C. § 924(e)(1) based on a defendant’s three prior violent felonies is proper under Apprendi). Furthermore, we have held that unless and until the Supreme Court chooses to overrule Almendarez-Torres, we are bound by it. Stevens, 453 F.3d at 967; United States v. Morris, 293 F.3d 1010, 1012 (7th Cir.2002); see, e.g., United States v. Browning, 436 F.3d 780, 782 (7th Cir.2006) (holding that the continued authority of Almendarez-Torres is not for us to decide). With respect to Hendrix’s argument that the Act’s requirement that the crimes be committed “on occasions different from one another” goes beyond the fact of a prior conviction, and should be determined by a jury, we have already rejected this argument in United States v. Schlifer, 403 F.3d 849, 852 (7th Cir.2005). According ly, the district court’s determination from the PSR that Hendrix had three previous convictions to satisfy the Armed Career Criminal Act is not impermissible factfind-ing, and Hendrix’s sentence does not" }, { "docid": "23388171", "title": "", "text": "Apprendi 530 U.S. at 478, 120 S.Ct. 2348 (quoting In re Winship, 397 U.S. 358, 361—62, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)) (alteration in original). Because an ACCA enhancement increases both a defendant’s statutory maximum and mandatory minimum penalties, the Sixth Amendment would seem to require the Government to prove an ACCA predicate felony beyond a reasonable doubt. The Supreme Court, however, has recognized an exception to the general Sixth Amendment rule: a jury need not find the “fact of a prior conviction” beyond a reasonable doubt. Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. Instead, the Court has held that the Sixth Amendment permits a judge to find the fact of a prior conviction by a mere preponderance of the evidence, even if this fact raises the statutory maximum or minimum penalty for the current offense. Almendarez-Torres v. United States, 523 U.S. 224, 247, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). The Supreme Court has since described the Almendarez-Torres holding as “at best an exceptional departure” from the normal Sixth Amendment rule. Apprendi 530 U.S. at 487, 120 S.Ct. 2348. The Court has justified this “departure” on the ground that the defendant in Almendarez-Torres “did not challenge the accuracy of [the prior conviction] in his case” and that the prior conviction arose “pursuant to proceedings with substantial procedural safe guards of their own.” Id. at 488, 120 S.Ct. 2348. The Court reasoned that these twin protections “mitigated the due process and Sixth Amendment concerns otherwise implicated in allowing a judge to determine a ‘fact’ increasing punishment beyond the maximum of the statutory range.” Id. Four Justices dissented in Almendarez-Torres. Justice Thomas, who joined the Almendarez-Torres majority, has subsequently stated that he believes the case was wrongly decided. See Shepard v. United States, 544 U.S. 13, 28, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) (Thomas, J., concurring). Moreover, the Supreme Court’s recent characterizations of the Sixth Amendment are difficult, if not impossible, to reconcile with Almendarez-Torres’s lonely exception to Sixth Amendment protections. See Alleyne, 133 S.Ct. at 2160 (“any facts that increase the prescribed range of penalties to which" }, { "docid": "22158321", "title": "", "text": "crime to 20 years if the alien has previously been convicted of an aggravated felony. Almendarez-Torres involved an alien who, like Vargas, had been indicted under § 1326(a) and sentenced under § 1326(b)(2). Almendarez-Torres, 523 U.S. at 227, 118 S.Ct. 1219. The alien challenged his sentence, essentially claiming subsection (b)(2) constituted its own crime and not simply a sentencing factor under subsection (a). Id. Consequently, he argued he could not be sentenced to up to 20 years in prison as permitted in subsection (b)(2) because a key element of the subsection (b)(2) crime — -the existence of a past aggravated felony — was not charged in his indictment. Id. Instead, he claimed the maximum sentence he could face was the two years set forth in subsection (a). Id. (The District Court had sentenced the alien to 85 months’ imprisonment. Id.) In rejecting the alien’s claim, the Supreme Court held that subsection (b)(2) set forth a sentencing factor for the subsection (a) offense. Id. at 235, 118 S.Ct. 1219. As a result, the fact of the alien’s multiple prior convictions was not an element of the subsection (a) crime and it did not have to be charged in the alien’s indictment to be factored into his sentence. Id. The holding of Almendarez-Torres has since been questioned by the Supreme Court. See, e.g., Apprendi v. New Jersey, 530 U.S. 466, 489, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (explaining “it is arguable that Almendarez-Torres was incorrectly decided”); Shepard v. United States, 544 U.S. 13, 27, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) (Thomas, J., concurring) (arguing “a majority of the Court now recognizes that Almendarez-Torres was wrongly decided”). Despite these questions, the Supreme Court has yet to overrule the case. As a consequence, it continues to bind our decisions. See Ordaz, 398 F.3d at 241 (explaining “[t]he holding in Almendarez-Torres remains binding law”). Vargas concedes that the holding in Almendarez-Torres is fatal to his Fifth Amendment claim (involving his indictment), and he admits raising the issue only to preserve it for further review. He maintains, however, that Almendarez-Tor-res does not address his" }, { "docid": "21291880", "title": "", "text": "between the police and the accused plays an indicative role in the determination of whether the statement was the result of compelled influence.”). We conclude that Hendrix’s statements were made voluntarily and were not the result of interrogation by Officer Moore. D. Sentencing. In challenging his sentence, Hendrix first argues that sentencing him under 18 U.S.C. § 924(e), the Armed Career Criminal Act (the “Act”), in the absence of jury findings as to the nature of his criminal history, violates his Sixth Amendment right to a jury trial. Hendrix asserts that the Act’s requirement that the crimes be committed “on occasions different from one another” goes beyond the fact of a prior conviction and is not subject to Ap-prendi’s exception for prior convictions, and therefore should be determined by a jury. The Act provides that a defendant who is found to violate 18 U.S.C. § 922(g) “and has three previous convictions ... for a violent felony or serious drug offense or both, committed on occasions different from one another ... shall be ... imprisoned not less than fifteen years.” The district court does not violate a defendant’s Sixth Amendment right to a jury trial by making findings as to his criminal record that expose him to greater criminal penalties. United States v. Williams, 410 F.3d 397, 402 (7th Cir.2005). In Almendarez-Torres v. United States, the Supreme Court held that recidivism used to enhance a defendant’s penalty need not be found beyond a reasonable doubt, but instead is a sentencing factor. 523 U.S. 224, 239, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). As we noted in United States v. Stevens, 453 F.3d 963, 967 (7th Cir.2006), Almendarez-Torres remains intact, notwithstanding subsequent decisions. See, e.g., Apprendi v. New Jersey, 530 U.S. 466, 489, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (holding that “[o]ther than the fact of a prior conviction, any fact that increases the prescribed maximum must be submitted to a jury and proven beyond a reasonable doubt”); Shepard v. United States, 544 U.S. 13, 24-26, 37-38, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) (acknowledging the continuing validity of Almendarez-Torres); see" }, { "docid": "22370979", "title": "", "text": "of prior convictions under § 924(e) need not be charged in an indictment and proven to a jury. Consequently, the question before us now is whether our holding in Dorris remains good law after the Supreme Court’s decision in United States v. Booker, — U.S. —, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We conclude that it does. The majority opinion in Booker does not mention Almendarez-Torres, much less overrule it. Indeed, the Court explicitly confirmed the prior conviction exception, stating: “we reaffirm our holding in Apprendi: Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.” Id. at 756. Furthermore, Apprendi’s reason for excepting prior convictions remains as valid after Booker as it was before. In previous criminal proceedings, a defendant received sufficient procedural protections to alleviate any Sixth Amendment concerns about using convictions stemming from those proceedings for sentencing. Moore argues that recent Supreme Court decisions portend the demise of Almendarez-Torres. Indeed, in a recent concurring opinion, Justice Thomas stated that Almendarez-Torres “has been eroded by this Court’s subsequent Sixth Amendment jurisprudence, and a majority of the Court now recognizes that Almendarez-Torres was wrongly decided.” Shepard v. United States, 544 U.S. —, 125 S.Ct. 1254, 1263, — L.Ed.2d — (2005) (Thomas, J., concurring). He urges that “in an appropriate case, this Court should consider Almendarez-Torres’ continuing viability.” Id. Although the Court may overrule Almendarez-Torres at some point in.the future, it has not done so, we will not presume to do so for the Court, and we are bound by existing precedent to hold that the Almendarez-Torres exception to the rule announced in Apprendi and extended to the Guidelines in Booker remains good law. See Agostini v. Felton, 521 U.S. 203, 237, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997) (“if a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of" }, { "docid": "22278793", "title": "", "text": "to warrant treating any facts supporting application of the statute as elements of a new offense requiring proof to a jury. In Apprendi itself, however, the Supreme Court created a specific exception to this rule for “the fact of a prior conviction.” Apprendi v. New Jersey, 530 U.S. at 490, 120 S.Ct. 2348. This exception preserved the holding in Almendarez-Torres v. United States, 523 U.S. 224, 239-47, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), which stated that, where a statute provides for an enhanced penalty based on a defendant’s pri- or convictions, the fact of those convictions is a sentencing factor to be determined by the court rather than a jury. Although the continued viability of Almendarez-Torres has been questioned, see Shepard v. United States, 544 U.S. at 27-28, 125 S.Ct. at 1264 (Thomas, J., concurring in part and concurring in judgment) (suggesting that a majority of the Supreme Court now views Almendarez-Torres as inconsistent with Apprendi), the Supreme Court has not reversed its holding, see generally United States v. Booker, 543 U.S. 220, 244, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) (reaffirming Apprendi rule in terms including Almendarez-Torres exception: “Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt” (emphasis added)); cf. Dretke v. Haley, 541 U.S. 386, 395, 124 S.Ct. 1847, 158 L.Ed.2d 659 (2004) (“We have not extended [In re ] Winship’s protections to proof of prior convictions used to support recidivist enhancements.”). Thus, Almen-darez-Torres continues to bind this court in its application of Apprendi. See United States v. Estrada, 428 F.3d 387, 390 (2d Cir.2005) (applying Almendarez-Torres exception post-Booker)] United States v. Santiago, 268 F.3d 151, 155 (2d Cir.2001). With this understanding of the law, we identify no Sixth Amendment error in the district court’s findings as to the fact of Snype’s prior state robbery convictions. Four of our sister circuits have considered this question and reached the same conclusion." } ]

[ { "docid": "19538501", "title": "", "text": "its judgment; and its judgment is to be guided by sound legal principles.\" Martin, 546 U.S., at 139, 126 S.Ct. 704 (quoting United States v. Burr, 25 F.Cas. 30, 35 (No. 14,692d) (C.C.D.Va.1807) (Marshall, C.J.); alteration omitted). Thus, although there is \"no precise rule or formula\" for awarding damages under § 284, a district court's \"discretion should be exercised in light of the considerations\" underlying the grant of that discretion. Octane Fitness, 572 U.S., at ----, 134 S.Ct., at 1756 (quoting Fogerty, 510 U.S., at 534, 114 S.Ct. 1023 ). Awards of enhanced damages under the Patent Act over the past 180 years establish that they are not to be meted out in a typical infringement case, but are instead designed as a \"punitive\" or \"vindictive\" sanction for egregious infringement behavior. The sort of conduct warranting enhanced damages has been variously described in our cases as willful, wanton, malicious, bad-faith, deliberate, consciously wrongful, flagrant, or-indeed-characteristic of a pirate. See supra, at 1928 - 1930. District courts enjoy discretion in deciding whether to award enhanced damages, and in what amount. But through nearly two centuries of discretionary awards and review by appellate tribunals, \"the channel of discretion ha[s] narrowed,\" Friendly, Indiscretion About Discretion, 31 Emory L.J. 747, 772 (1982), so that such damages are generally reserved for egregious cases of culpable behavior. B The Seagate test reflects, in many respects, a sound recognition that enhanced damages are generally appropriate under § 284 only in egregious cases. That test, however, \"is unduly rigid, and it impermissibly encumbers the statutory grant of discretion to district courts.\" Octane Fitness, 572 U.S., at ----, 134 S.Ct., at 1755 (construing § 285 of the Patent Act). In particular, it can have the effect of insulating some of the worst patent infringers from any liability for enhanced damages. 1 The principal problem with Seagate 's two-part test is that it requires a finding of objective recklessness in every case before district courts may award enhanced damages. Such a threshold requirement excludes from discretionary punishment many of the most culpable offenders, such as the \"wanton and malicious pirate\"" } ]

[ { "docid": "17675718", "title": "", "text": "grant summary judgment that it is not liable for willful infringement. Determining willfulness is a highly fact-based endeavor. In this case, it is undisputed that by October 2014 Lilly was aware of the *124 patent and UroPep’s assertion that the patent read on tadalafil. Lilly argues that it had good faith reasons to believe that the patent did not read on tadalafil and .that the patent was invalid. The Court recognizes that, the arguments Lilly has made in its summary judgment motions of noninfringement and invalidity provide some support for its contention that it was at least not clear that the patent was both valid and infringed. The Supreme Court has made clear, however, that the issue of willfulness turns not on the objective reasonableness of the defendant’s conduct,-but on the defendant’s subjective beliefs. Halo Elecs., Inc. v. Pulse Elecs., Inc., — U.S. —, 136 S.Ct. 1923, 1933, 196 L.Ed.2d 278 (2016) (“The subjective willfulness of a patent infringer, intentional or knowing, may warrant enhanced damages, without regard to whether his infringement was objectively reckless.”). A jury might well conclude' fi’om the objective evidence' regarding the disputed claim construction and invalidity issues that Lilly did not subjectively believe it was infringing a valid patent. See WesternGeco L.L.C. v. ION Geophysical Corp., 837 F.3d 1358, 1363 (Fed. Cir. 2016) (even after Halo, the objective reasonableness of the accused infringer’s positions can still be relevant to the section 284 issue). But Lilly has offered no other summary judgment evidence going to the subjective beliefs of its decisionmakers. Given the state of the evidence presented on summary judgment, the Court cannot conclude at this juncture that it would be unreasonable for a jury to find that Lilly knew the ’124 patent was both valid and infringed. The Court therefore DENIES Lilly’s motion for summary judgment of no willfulness. With that said, the Court is mindful of the Supreme Court’s admonition that case íaw has channeled the courts’ discretion in granting enhanced damages under section 284 of the Patent Act, limiting the award of such damages “to egregious cases of misconduct beyond typical infringement.”" }, { "docid": "21815395", "title": "", "text": "lost profits is set aside; Presidio is only entitled to receive a reasonable royalty award. Because the jury instructions and verdict form only directed the jury to consider a reasonable royalty award if Presidio had not proven it was entitled to lost profits, the jury did not return a finding about a reasonable royalty rate. Under these circumstances, a new trial is needed to determine the reasonable royalty award. IV Next, we address the issue of enhanced damages. The jury found that ATC willfully infringed the ’356 patent, and the district court denied judgment as a matter , of law of no willful infringement. Despite the jury finding of willfulness, the-district court declined to award enhanced damages. We review the determination not to award enhanced damages for abuse of discretion. WBIP, LLC v. Kohler, Co., 829 F.3d 1317, 1339 (Fed. Cir. 2016) (citing Halo Elecs., Inc. v. Pulse Elecs., Inc., -. U.S -, 136 S.Ct. 1923, 1934, 195 L.Ed.2d 278 (2016)). In patent infringement cases, district courts have discretion to “increase damages up to three times the amount found or assessed.” 35 U.S.C. § 284; Halo, 136 S.Ct. at 1931. Enhanced damages are generally only appropriate in egregious cases of misconduct, such as willful, wanton, or hialicious behavior. Halo, 136 S.Ct. at 1932. But an award of enhanced damages does not necessarily flow from a willfulness finding. Id.; WBIP, 829 F.3d at 1341 n.13. Discretion remains with the court to determine whether the conduct is sufficiently egregious to warrant enhanced damages. WBIP, 829 F.3d at 1341 n.13. In determining whether enhanced damages are appropriate, courts should consider the overall circumstances of the case. Halo, 136 S.Ct. at 1933. The district court here appropriately analyzed ATC’s culpability only during the period beginning when the reexamination certificate issued on December 8, 2015. The district court noted that at that-point, ATC and Presidio were already involved in the present litigation, and ATC had been selling the 550 capacitors ■ for almost six years without a finding of infringement. At that point, ATC had received the district court’s claim construction order and developed defense" }, { "docid": "16419177", "title": "", "text": "every casé before district courts may award enhanced damages.” Id. In particular, the Court rejected Seagate’s strict requirement that a patentee prove the objective unreasonableness of an in-fringer’s defenses. Id.; see WBIP, LLC v. Kohler Co., No. 15-1038, 829 F.3d 1317, 1341, 2016 WL 3902668, at *15 (Fed. Cir. July 19, 2016) (under Halo, “[pjroof of an objectively reasonable litigation-inspired defense to infringement is no' longer a defense to willful infringement”). At the same time, Halo did not disturb the substantive standard for the second prong of Seagate, subjective willfulness. Rather, Halo emphasized that subjective willfulness alone — i.e., proof that the defendant acted despite a risk of infringement that was “ ‘either known or so obvious that it should have been known to the accused infringer,’ ” Halo, 136 S.Ct. at 1930 (quoting Seagate, 497 F.3d at 1371) — can support an award of enhanced damages. “The subjective willfulness of a patent infringer, intentional or knowing, may warrant enhanced damages, without regard to whether his infringement was objectively reckless.” Id. at 1933; see also id. at 1930 (describing the second prong of Seagate as an evaluation of the infringer’s “subjective knowledge”). Additionally, the Court stressed throughout Halo that, if willfulness is established, the question of enhanced damages must be left to the district court’s discretion. So too, Halo stressed that “[ajwards of enhanced damages ... are not to be meted out in a typical infringement case, but are instead designed as a ‘punitive’ or ‘vindictive’ sanction for egregious infringement behavior.” Id. at 1932. “[N]one of this is to say that enhanced damages must follow a finding of egregious misconduct. As with any exercise of discretion, courts should continue to take into account the particular circumstances of each case in deciding whether to award damages, and in what amount. Section 284 permits district courts to exercise their discretion in a manner free from the inelastic constraints of the Seagate test.” Id. at 1933-34. On remand from the Supreme Court, our couyt recently reconsidered enhanced damages in the case of Halo itself and, in returning the issue to the district court," }, { "docid": "11969713", "title": "", "text": "criticized the objective recklessness requirement, reasoning that it “excludes from discretionary punishment many of the most culpable offenders,” and faulted the requirement for “making dis-positive the ability of the infringer to muster a reasonable (even though unsuccessful) defense at the infringement trial.” 136 S.Ct. at 1932,1932-33. Halo explained 'that an infringer’s subjective bad faith alone could support an enhanced damages award.’ Id. at 1933. Moreover, Halo made clear that it is the infringer’s state of mind at the time of the challenged conduct that' matters, without regard to any later reasonable defense at trial. Id. In this case, the jury was instructed that it must find by a preponderance of the evidence that Campbell’s infringement of the ’476 Patent ivas egregious measured against Campbell’s knowledge at the time of the infringement. 7 Tr. 93. The jury was also told that “egregious conduct” could be described’ as “willful, wanton, malicious, bad faith, deliberate, consciously •wrongful, flagrant, or characteristic of a pirate..” Id. The jury was then instructed that it must consider the totality of the circumstances when determining whether Campbell acted egregiously, including whether Campbell intentionally copied Polara’s technology covered by the ’476 Patent, whether Campbell made a good-faith effort to avoid infringing the patent, whether Campbell reasonably believed it had a defense to infringement at the time it engaged in the infringing conduct, or whether Campbell relied on a legal opinion that was well supported and believable. Id. at 94-95. Campbell’s motion for judgment as, a matter of law raises two primary arguments with respect to the jury’s willfulness finding. First, Campbell argues that the jury’s verdict was tainted by the. Court’s instructions and counsel’s remarks about Judge Carney’s infringement ruling. Dkt. 450 at 66-68. Second, Campbell argues that the evidence does not support the jury’s finding of willfulness. Id. at 68-80. Neither argument is persuasive. a. The Court’s Instructions and Polara’s Arguments In its initial instructions, the Court told the jury about Judge Carney’s infringement finding but warned the jurors that Judge Carneas infringement determination should have “absolutely no impact” on its deliberations: In proceedings before trial it was" }, { "docid": "10154097", "title": "", "text": "issues. Dr. Barry moves for enhanced damages under 35 U.S.C. § 284 and attorney’s fees under 35 U.S.C. § 285. Dkt. 431. Medtronic opposes both motions. Dkt. 437. The court concludes that an enhancement of 20% of the total final damages award is merited. But because the court finds this case is not “exceptional” pursuant to 35 U.S.C. § 285, Dr. Barry’s motion for attorney’s fees is denied. Each issue is addressed in turn below. I. ENHANCED DAMAGES A. Legal Framework Section 284 of the Patent Act states that a court “may increase the damages up to three times the amount found or assessed” when actual damages are awarded for infringement. 35 U.S.C. § 284. It is up to a district court to decide whether to increase damages, and if so, by how much. Halo Elecs., Inc. v. Pulse Elecs., Inc., — U.S. -, 136 S.Ct. 1923, 1935-36, 195 L.Ed.2d 278 (2016). The type of conduct justifying enhancement was described by the Supreme Court as “willful, wanton, malicious, bad-faith, deliberate, consciously' wrongful, flagrant, or—indeed—characteristic of a pirate.” Id. at 1932. In this case, the jury was carefully instructed on willfulness and on Dr. Barry’s burden of proof. Dkt. 414 at 19-20. The jury was instructed that it must find “wanton disregard for Dr. Barry’s patent rights” or that infringement “is in bad faith, deliberate, or flagrant.” The jury was given a list of factors to consider. Medtronic did not object to the instruction. Med-tronic asserted there was no substantial evidence to support.the jury’s finding and moved for judgment as a matter of law, ■but the court disagreed , and denied Med-tronic’s motion. The jury’s finding of willfulness is a sufficient predicate under Halo to raise: the issue of enhanced damages. Halo, 136 S.Ct. at 1934. However, a finding of willfulness does‘not require that a district court enhance damages. Id. at 1933. The court must take “into account the particular circumstances of each case” and assiduously consider whether “the egregiousness of the defendant’s conduct based on all the facts and circumstances” warrants enhancement. See id. at 1933; see also Read Corp." }, { "docid": "16998809", "title": "", "text": "to “show by clear and convincing evidence that the infringer acted despite an objectively high likelihood that its actions constituted infringement of a valid patent.” Seagate, 497 F.3d at 1371. Second, with the “threshold objective standard” satisfied, the patentee was required to “also demonstrate that this objectively-defined risk (determined by the record developed in the infringement proceeding) was either known or so obvious that it should have been known to the accused infringer.” Id. The Supreme Court has now rejected the Seagate test as “unduly rigid” and inconsistent with “the statutory grant of discretion to district courts” to enhance damages under' § 284. Halo, 136 S.Ct. at 1932 (internal quotation marks omitted). In particular, the Court rejected the clear- and-convincing standard of proof, as well as the tripartite framework for appellate review. Id. at 1934. The Court also rejected Seagate’s requirement of “a finding of objective recklessness in every case before district courts may award enhanced damages.” Id. at 1932. Such a threshold requirement, the Court explained, “excludes from discretionary punishment many of the most culpable offenders, such as the Vanton and malicious pirate’ who intentionally infringes another’s patent — with no doubts about its validity or any notion of a defense — for no purpose other than to steal the patentee’s business.” Id. Rather, “[t]he subjective willfulness of a patent infringer, intentional or knowing, may warrant enhanced damages.” Id. at 1933. Moreover, the Court held that Section 284 allows district courts to exercise their discretion in deciding whether to award enhanced damages, which “are generally reserved for egregious cases of culpable behavior” beyond “typical infringement.” Id. at 1932; see also id. at 1933-34 (“Section 284 allows district courts to punish the full range of culpable behavior. Yet none of this is to say that enhanced damages must follow a finding of egregious misconduct. ... [S]ueh punishment should generally be reserved for egregious cases typified by willful misconduct.”). Here, the jury awarded Halo $1.5 million in reasonable royalty damages with respect to products that were delivered in the United States. The jury also found that it was highly probable that" }, { "docid": "8043756", "title": "", "text": "to determine whether to award enhanced damages. 136 S.Ct. at 1933-34 (“Section 284 permits district courts to exercise their discretion in a manner free from the inelastic constraints of the Sea-gate test.”). Accordingly, “[t]he subjective willfulness of a patent infringer, intentional or knowing, may warrant enhanced damages, without regard to whether his infringement was objectively reckless.” Id. 136 S.Ct. at 1926; see SOCIEDAD ESPANOLA DE ELECTROMEDICINA Y CALIDAD, S.A., v. BLUE RIDGE X-RAY CO., INC., DRGERM USA INC., & DRGEM CORP., No. 1:10-CV-00159-MR, 2016 WL 3661784, at *2 (W.D.N.C. July 8, 2016) (“Thus, in Halo, the Supreme Court [] overruled the objective prong of Sea-gate, leaving the issue of willfulness as solely a factual issue which can readily be addressed by a jury.”). Additionally, as explained in the Final Judgment, Halo “disavowed the burden of proof prescribed by Seagate and opted for the lesser preponderance of the evidence standard for a patentee to prove an alleged infringer’s recklessness.” PPC Broadband, Inc. v. Corning Optical Commc’ns RF, LLC, 193 F.Supp.3d 133, 143, 2016 WL 3365437, at *5 (N.D.N.Y. June 16, 2016) (citing id. at 148, at *9). Enhanced damages “are not to be meted out in a typical infringement case, but are instead designed as a ‘punitive’ or ‘vindictive’ sanction for egregious behavior. The sort of conduct warranting enhanced damages has been variously described in our cases as willful, wanton, malicious, bad-faith, deliberate, consciously wrongful, flagrant, or—indeed—characteristic of a pirate.” Halo, 136 S.Ct. at 1932. “[Although there is ‘no precise rule or formula’ for awarding damages under § 284, a district court’s ‘discretion should be exercised in light of the considerations’ underlying the grant of that discretion.” Halo, 136 S.Ct. at 1932 (citations omitted). That is, “[a]s with any exercise of discretion, courts should ... take into account the particular circumstances of each case in deciding whether to award damages, and in what amount ... [and] ‘be guided by [the] sound legal principles’ developed over nearly two centuries of application and interpretation of the Patent Act.” Halo, 136 S.Ct. at 1933, 1935 (quoting Martin v. Franklin Capital Corp., 546 U.S. 132," }, { "docid": "20687327", "title": "", "text": "that is appropriate.” WBIP, 829 F.3d at 1341 n.13. Awards for enhanced damages “are not to be meted out in a typical infringement case, but are instead designed as a ‘punitive’ or ‘vindictive’ sanction for egregious infringement behavior.” Halo, 136 S.Ct. at 1932. The Supreme Court has described the conduct giving rise to enhanced damages as “willful, wanton, malicious, bad-faith, deliberate, consciously wrongful, flagrant, or — indeed—characteristic of a pirate.” Id. In Read, 970 F.2d 816, the Federal Circuit provided a list of factors for trial courts to consider when deciding whether to award enhanced damages. Id. at 827. After Halo’s elimination of “rigid formulas,” trial courts now look to the Read factors as “useful guideposts” even though they “are no longer the sole set of criteria” that can be considered. Finjan, Inc. v. Blue Coat Sys., Inc., 2016 WL 3880774, at *16 (N.D. Cal. July 18, 2016). The Read factors include: (1) whether the infringer deliberately copied the ideas or design of another; (2) whether the infringer, when he knew of the other’s patent protection, investigated the scope of the patent and formed a good-faith belief that it was invalid or that it was not infringed; (3) the infringer’s behavior as a party to the litigation; (4) defendant’s size, and financial condition; (5) closeness of the case; (6) duration of defendant’s misconduct; (7) remedial action by the defendant; (8) defendant’s motivation to harm, and (9) -whether defendant attempted to conceal its misconduct. Read, 970 F.2d at 827. The Court addresses each Read factor in turn, and then discusses whether, on balance, an award of enhanced damages is warranted in the instant case. 1. Deliberate Copying of Ideas or Design of Another Evidence of copying weighs in favor of enhanced damages. See Polara, 2017 WL 754609 at *25 (finding that circumstantial evidence of copying “favors an award of - enhanced damages”). As discussed above, the record contains evidence that Samsung copied Apple’s slide-to-unlock feature. On appeal, Samsung did not even dispute that it copied Apple’s slide-to-unlock feature. Apple, 839 F.3d at 1054 (“Samsung does not dispute in its briefing that" }, { "docid": "20687303", "title": "", "text": "infringer’s subjective bad faith alone may support an award of en-hancéd damages.”). Although the substantive Seagate standard for subjective willfulness remains unaltered, the Halo court decreased the burden of proof. A patentee seeking enhanced damages must now show subjective willfulness by a preponderance of the evidence rather than with clear and convincing evidence. See Halo, 136 S.Ct. at 1934 (“‘[P]atent-infringement litigation has always been governed by a preponderance of the evidence standard.... Enhanced damages are no exception.’ ”). Once a patentee seeking enhanced damages demonstrates by a preponderance of the evidence the infringer’s subjective willfulness, “the question of enhanced damages must be left to the district court’s discretion.” Id. “None of this is to say that enhanced damages must follow a finding of egregious misconduct. As with any exercise of discretion, courts should continue to take into account the particular circumstances of each case in deciding whether to award damages, and in what amount.” Halo, 136 S.Ct. at 1933-34. To determine whether a court should exercise its discretion to award enhanced damages, courts consider nine factors described in Read Corp. v. Portec, Inc., 970 F.2d 816 (Fed. Cir. 1992), abrogated on other grounds by Markman v. Westview Instruments, Inc., 52 F.3d 967 (Fed. Cir. 1995) (en banc). The Read factors include: (1) whether the infringer deliberately copied the ideas or design of another; (2) whether the infringer, when he knew of the other’s patent protection, investigated the scope of the patent and formed a good-faith belief that it was invalid or that it was not' infringed; (3) the infringer’s behavior as a party to the litigation; (4) defendant’s size and financial condition; (5) closeness of the case; (6) duration of defendant’s misconduct; (7) remedial action by the defendant; (8) defendant’s motivation for harm, and (9) whether defendant attempted to conceal its misconduct. Read, 970 F.2d at 827. In line with Halo and subsequent Federal Circuit cases interpreting Halo, the Court first addresses whether Apple has adequately shown the threshold requirement of subjective willfulness. The Court then turns to the subsequent inquiry as to whether the Court should exercise its discretion" }, { "docid": "10154098", "title": "", "text": "a pirate.” Id. at 1932. In this case, the jury was carefully instructed on willfulness and on Dr. Barry’s burden of proof. Dkt. 414 at 19-20. The jury was instructed that it must find “wanton disregard for Dr. Barry’s patent rights” or that infringement “is in bad faith, deliberate, or flagrant.” The jury was given a list of factors to consider. Medtronic did not object to the instruction. Med-tronic asserted there was no substantial evidence to support.the jury’s finding and moved for judgment as a matter of law, ■but the court disagreed , and denied Med-tronic’s motion. The jury’s finding of willfulness is a sufficient predicate under Halo to raise: the issue of enhanced damages. Halo, 136 S.Ct. at 1934. However, a finding of willfulness does‘not require that a district court enhance damages. Id. at 1933. The court must take “into account the particular circumstances of each case” and assiduously consider whether “the egregiousness of the defendant’s conduct based on all the facts and circumstances” warrants enhancement. See id. at 1933; see also Read Corp. v. Portec, Inc., 970 F.2d 816, 826-27 (Fed. Cir. 1992). Enhanced damages are not to be meted out in typical “garden-variety” patent suits, and instead, should be reserved for truly “egregious cases.” Halo, 136 S.Ct. at 1932, 1934-35. Just as the decision of whether to -enhance damages under Section 284 is committed to the sound discretion of the court, the amount of the enhancement—not to exceed treble damages—is also discretionary. To guide the analysis, courts before and after Halo have relied on nine factors from Read Corp. v. Portec, Inc., a 1992 Federal Circuit case. See i4i Ltd. v. Microsoft, Inc., 598 F.3d 831, 859 (Fed. Cir. 2010) (“[T]he standard for deciding whether—and by how much—to enhance damages is set forth in Read.”); WBIP, LLC v. Kohler, Co., 829 F.3d 1317 (Fed. Cir. 2016), (approving a 50% enhancement based, on analysis of Read factors); Imperium IP Holdings (Cayman), Ltd. v. Samsung Elecs. Co., 203 F.Supp.3d 755, 758-59 (E.D. Tex.2016). Those, factors are: (1) whether the infringer deliberately copied the ideas or design of another (“copying”)," }, { "docid": "11969759", "title": "", "text": "the form of trebling the jury’s damages award to punish Campbell’s willful conduct. Dkt. 455. Courts have the discretion to award “damages up to three times the amount' found or assessed.” 35 U.S.C. § 284. Such enhanced damages are not required by a finding of egregious misconduct. Halo, 136 S.Ct. at 1933. Courts should “continue to take into account the particular circumstances of each case,” reserving enhanced damages for “egregious cases typified by willful misconduct.” Id. at 1933-34. Read Corp. v. Portee, Inc., 970 F.2d 816, 826-27 (Fed. Cir. 1992), identified nine factors relevant to the egregious conduct inquiry: (1) whether the infringer deliberately copied the ideas or design of another; (2) whether the infringer, when he knew of the other’s patent protection, investigated the scope of the patent and formed a good-faith belief that it was invalid or that it was not infringed; (3) the infringer’s behavior as ⅛' party to the litigation; (4) the infringer’s size and financial condition; (5) closeness of the case; (6) duration of the infringer’s misconduct; (7) remedial action by the infringer; (8) the infringer’s motivation for harm; and (9) whether the infringer attempted to conceal its misconduct. After Halo, courts have continued to look to these factors. See, e.g., Power Integrations, Inc. v. Fairchild Semiconductor Int’l, Inc., No. 09-5235, 2017 WL 130236, at *4 (N.D. Cal. Jan. 13, 2017) (calling the Read factors “useful guideposts”); Sociedad Espanola de Electromedicina y Calidad, S.A. v. Blue Ridge X-Ray Co. Inc., No. 10-159, 226 F.Supp.3d 520, 531-32, 2016 WL 7473422, at *7 (W.D. N.C. Dec. 28, 2016) (calling the Read factors “helpful” but “not dispositive”). The Court analyzes the Read factors as follows: Deliberate copying. Polara argues that Campbell deliberated copied its ’476 Patent when it made its AAPS a two-wire device. . As noted above, the evidence showed that Campbell was aware of Po-lara’s two-wire Navigator and intended to develop a product with similar capabilities. See, e.g>, 3 Tr. 121-22 (“[W]e needed to develop a product to compete with the two-wire. system.”). The evidence showed Campbell eschewed the suggestion that it implement a three-wire solution." }, { "docid": "16998810", "title": "", "text": "culpable offenders, such as the Vanton and malicious pirate’ who intentionally infringes another’s patent — with no doubts about its validity or any notion of a defense — for no purpose other than to steal the patentee’s business.” Id. Rather, “[t]he subjective willfulness of a patent infringer, intentional or knowing, may warrant enhanced damages.” Id. at 1933. Moreover, the Court held that Section 284 allows district courts to exercise their discretion in deciding whether to award enhanced damages, which “are generally reserved for egregious cases of culpable behavior” beyond “typical infringement.” Id. at 1932; see also id. at 1933-34 (“Section 284 allows district courts to punish the full range of culpable behavior. Yet none of this is to say that enhanced damages must follow a finding of egregious misconduct. ... [S]ueh punishment should generally be reserved for egregious cases typified by willful misconduct.”). Here, the jury awarded Halo $1.5 million in reasonable royalty damages with respect to products that were delivered in the United States. The jury also found that it was highly probable that Pulse’s infringement was willful. However, the district court determined that the objective prong of the Seagate test was not met because it concluded that the obviousness defense that Pulse presented at trial was not objectively baseless. On appeal, Pulse does not challenge the propriety of the jury finding of subjective willfulness. In light of the Supreme Court’s decision, we vacate the district court’s determination of no willful infringement. We remand for the district court to exercise its discretion and to decide whether, taking into consideration the jury’s unchallenged subjective willfulness finding as one factor in its analysis, an enhancement of the damages award is warranted. Halo argues that Pulse did not actually rely on any invalidity defense pre-suit when selling the accused products because Pulse’s obviousness defense was developed after the lawsuit was filed in 2007. As the Supreme Court explained, “culpability is generally measured against the knowledge of the actor at the time of the challenged conduct.” Halo, 136 S.Ct. at 1933. Thus, in assessing the culpability of Pulse’s conduct, the district court should" }, { "docid": "11969758", "title": "", "text": "Claims 1 through 4 of the ’476 Patent. And there is the problem with Polara’s language. A version of Campbell’s AAPS that does not rely on Polara’s'data-over-power feature to operate over two wires would not infringe the ’476 Patent. The injunction’s definition of Infringing Product must reflect that. The Court will accordingly order Polara to submit revised proposed injunction language that limits its definition of Infringing Product consistent with the Court’s views herein. Within seven (7) days of Polara’s submission, Campbell shall file any objections thereto. Related to the Court’s concern, Polara has also asked for authority to inspect a working exemplar of Campbell’s new “wireless” AAPS, what Campbell calls its “WiAAPS.” See Dkt. 489. Campbell objects to Polara’s request. See Dkt. 490. Polara’s request for inspection is denied. Once an appropriate injunction is in place, Polara may, to the extent it believes that Campbell’s WiAAPS violates the injunction, seek to have Campbell held in contempt. D. Polara’s Motion for a Judgment of Willfulness and an Award of Enhanced Damages Polara seeks enhanced damages in the form of trebling the jury’s damages award to punish Campbell’s willful conduct. Dkt. 455. Courts have the discretion to award “damages up to three times the amount' found or assessed.” 35 U.S.C. § 284. Such enhanced damages are not required by a finding of egregious misconduct. Halo, 136 S.Ct. at 1933. Courts should “continue to take into account the particular circumstances of each case,” reserving enhanced damages for “egregious cases typified by willful misconduct.” Id. at 1933-34. Read Corp. v. Portee, Inc., 970 F.2d 816, 826-27 (Fed. Cir. 1992), identified nine factors relevant to the egregious conduct inquiry: (1) whether the infringer deliberately copied the ideas or design of another; (2) whether the infringer, when he knew of the other’s patent protection, investigated the scope of the patent and formed a good-faith belief that it was invalid or that it was not infringed; (3) the infringer’s behavior as ⅛' party to the litigation; (4) the infringer’s size and financial condition; (5) closeness of the case; (6) duration of the infringer’s misconduct; (7) remedial action" }, { "docid": "21781943", "title": "", "text": "may not even consider enhanced damages for such a pirate, unless the court first determines that his infringement was “objectively” reckless. In the context of such deliberate wrongdoing, however, it is' not clear why an independent showing of objective recklessness—by clear and convincing evidence, no less—should be a prerequisite to enhanced damages, Id. (internal citation omitted). Thus, in Halo, the Supreme Court overruled the objective prong of Seagate, leaving the issue of willfulness as solely a factual issue which can readily be addressed by a jury. Here, the jury was instructed to make a factual determination as to whether the DRGEM Defendants acted willfully, and the jury answered this question in the affirmative. In light of Halo, the Court determined that this finding, standing alone, was sufficient to support a finding of willfulness [Doc. 232], and thus a judgment was entered upon the jury’s verdict finding that the Defendants’ infringement of the ’829 Patent was willful [Doc. 233]. The jury’s finding of willful infringement, however, “does not mandate that damages be enhanced, much less mandate treble damages.” Read Corp. v. Portec, Inc., 970 F.2d 816, 826 (Fed. Cir. 1992); see also Halo, 136 S.Ct. at 1933 (“[N]one of this is to say that enhanced damages must follow a finding of egregious conduct.”); Presidio Components, Inc. v. American Tech. Ceramics Corp., No. 14-cv-02061-H-BGS, 2016 WL 4377096, at *20 (S.D. Cal. Aug. 17, 2016) (“an award of enhanced damages need not follow a finding of willful infringement”). Despite the jury’s finding of willfulness, the Court still has discretion to decide whether to award enhanced damages and in what amount such damages should be awarded. Halo, 136 S.Ct. at 1932. In exercising that discretion, the Court remains mindful that enhanced damages are designed to punish “egregious infringement behavior” and should not imposed in the run-of-the-mill case. Id. (noting that a trial court’s discretion “has narrowed ... so that such damages are generally reserved for egregious cases of culpable behavior”) (internal quotation marks, alteration, and internal citation omitted). Sedecal urges the Court to analyze the various factors set forth in Read Corp. v. Portec," }, { "docid": "20687326", "title": "", "text": "to the Admire and Stratosphere. Overall, the jury verdict will be upheld if there is “relevant evidence that a reasonable mind would accept as adequate to support” a finding of willfulness by a preponderance of the evidence. Callicrate, 427 F.3d at 1366 (citation omitted). The above-discussed evidence, evaluated in the totality of the circumstances, is sufficient to meet this standard. Accordingly, the Court upholds the jury’s finding of willfulness. C. Enhanced Damages Although the Court finds that substantial evidence supports the jury’s finding of willful infringement, enhanced damages are not mandatory after such a' finding. The United States Supreme Court has held: “Yet' none of this is to say that enhanced damages must follow a finding of egregious misconduct. As with any exercise of discretion, courts should continue to take into account the particular circumstances of each case in deciding whether to award damages,' and in what amount.” Halo, 136 S.Ct. at 1933. Thus, .the Court next turns to “[w]hether the conduct is sufficiently egregious as to warrant enhancement and the amount of the enhancement that is appropriate.” WBIP, 829 F.3d at 1341 n.13. Awards for enhanced damages “are not to be meted out in a typical infringement case, but are instead designed as a ‘punitive’ or ‘vindictive’ sanction for egregious infringement behavior.” Halo, 136 S.Ct. at 1932. The Supreme Court has described the conduct giving rise to enhanced damages as “willful, wanton, malicious, bad-faith, deliberate, consciously wrongful, flagrant, or — indeed—characteristic of a pirate.” Id. In Read, 970 F.2d 816, the Federal Circuit provided a list of factors for trial courts to consider when deciding whether to award enhanced damages. Id. at 827. After Halo’s elimination of “rigid formulas,” trial courts now look to the Read factors as “useful guideposts” even though they “are no longer the sole set of criteria” that can be considered. Finjan, Inc. v. Blue Coat Sys., Inc., 2016 WL 3880774, at *16 (N.D. Cal. July 18, 2016). The Read factors include: (1) whether the infringer deliberately copied the ideas or design of another; (2) whether the infringer, when he knew of the other’s patent" }, { "docid": "21781944", "title": "", "text": "treble damages.” Read Corp. v. Portec, Inc., 970 F.2d 816, 826 (Fed. Cir. 1992); see also Halo, 136 S.Ct. at 1933 (“[N]one of this is to say that enhanced damages must follow a finding of egregious conduct.”); Presidio Components, Inc. v. American Tech. Ceramics Corp., No. 14-cv-02061-H-BGS, 2016 WL 4377096, at *20 (S.D. Cal. Aug. 17, 2016) (“an award of enhanced damages need not follow a finding of willful infringement”). Despite the jury’s finding of willfulness, the Court still has discretion to decide whether to award enhanced damages and in what amount such damages should be awarded. Halo, 136 S.Ct. at 1932. In exercising that discretion, the Court remains mindful that enhanced damages are designed to punish “egregious infringement behavior” and should not imposed in the run-of-the-mill case. Id. (noting that a trial court’s discretion “has narrowed ... so that such damages are generally reserved for egregious cases of culpable behavior”) (internal quotation marks, alteration, and internal citation omitted). Sedecal urges the Court to analyze the various factors set forth in Read Corp. v. Portec, Inc., 970 F.2d 816 (Fed. Cir. 1992) in determining whether an award of enhanced damages is warranted in this case. In Halo, however, the Supreme Court cautioned that “there is no precise rule or formula for awarding damages under § 284....” Halo, 136 S.Ct. at 1932 (internal quotation marks and citation omitted). Rather, the Court stated that in determining whether enhanced damages are appropriate, the district court should “take into account the particular circumstances of each case.” Id. at 1933. Thus, while consideration of the Read factors may be helpful, they are not dispositive of the issue at hand. Finjan, Inc. v. Blue Coat Sys., Inc., No. 13-cv-03999-BLF, 2016 WL 3880774, at *16 (N.D. Cal. July 18, 2016) (“In light of Halo, ... the Read factors are now one set of guidelines courts can use to evaluate alleged misconduct, but are no longer the sole set of criteria.”). Rather, “the touchstone for awarding enhanced damages after Halo is egregiousness.” See Trustees of Boston Univ. v. Everlight Electronics Co., 212 F.Supp.3d 254, 257, 2016 WL 3976617," }, { "docid": "8043757", "title": "", "text": "*5 (N.D.N.Y. June 16, 2016) (citing id. at 148, at *9). Enhanced damages “are not to be meted out in a typical infringement case, but are instead designed as a ‘punitive’ or ‘vindictive’ sanction for egregious behavior. The sort of conduct warranting enhanced damages has been variously described in our cases as willful, wanton, malicious, bad-faith, deliberate, consciously wrongful, flagrant, or—indeed—characteristic of a pirate.” Halo, 136 S.Ct. at 1932. “[Although there is ‘no precise rule or formula’ for awarding damages under § 284, a district court’s ‘discretion should be exercised in light of the considerations’ underlying the grant of that discretion.” Halo, 136 S.Ct. at 1932 (citations omitted). That is, “[a]s with any exercise of discretion, courts should ... take into account the particular circumstances of each case in deciding whether to award damages, and in what amount ... [and] ‘be guided by [the] sound legal principles’ developed over nearly two centuries of application and interpretation of the Patent Act.” Halo, 136 S.Ct. at 1933, 1935 (quoting Martin v. Franklin Capital Corp., 546 U.S. 132, 139, 126 S.Ct. 704, 163 L.Ed.2d 547 (2005)). III. Discussion The narrow question before the Court is whether the trebling of damages was proper. Contrary to Defendant’s argument that “the Court indicated a perceived requirement to automatically treble the damages in its Final Judgment,” treble damages were awarded after comprehensive—perhaps, painstakingly so—consideration of the particular circumstances of this case in the resolution of multiple Daubert motions, a summary judgment motion, involving nearly three hours of oral argument, a motion for judgment as a matter of law, and a ten-day trial, after which the jury found willful infringement. Indeed, the Court has now reviewed the full factual record in this case, and evaluated arguments from both parties, on at least three separate occasions. The evidence established that BRP’s conduct was so unreasonable as to warrant a finding of “objective recklessness” under Seagate—a legal standard that Halo rejected for the very reason that it made it too difficult for patent holders to find redress for acts of intentional infringement, and overly constrained district courts from exercising their" }, { "docid": "16419178", "title": "", "text": "id. at 1930 (describing the second prong of Seagate as an evaluation of the infringer’s “subjective knowledge”). Additionally, the Court stressed throughout Halo that, if willfulness is established, the question of enhanced damages must be left to the district court’s discretion. So too, Halo stressed that “[ajwards of enhanced damages ... are not to be meted out in a typical infringement case, but are instead designed as a ‘punitive’ or ‘vindictive’ sanction for egregious infringement behavior.” Id. at 1932. “[N]one of this is to say that enhanced damages must follow a finding of egregious misconduct. As with any exercise of discretion, courts should continue to take into account the particular circumstances of each case in deciding whether to award damages, and in what amount. Section 284 permits district courts to exercise their discretion in a manner free from the inelastic constraints of the Seagate test.” Id. at 1933-34. On remand from the Supreme Court, our couyt recently reconsidered enhanced damages in the case of Halo itself and, in returning the issue to the district court, emphásized the district court’s discretion. Halo Elecs., Inc. v. Pulse Elecs., Inc., No. 13-1472, 831 F.3d 1369, 1381-82, 2016 WL 4151239, at *10 (Fed. Cir. Aug. 5, 2016). After Halo, the objective reasonableness of the accused infringer’s positions can still be relevant for the district court to consider, when exercising its discretion. Halo looked to Octane Fitness for the relevant standard. Halo, quoting Octane Fitness, held that there is “ ‘no precise rule or formula’ ” to determine whether enhanced damages should be awarded and that district courts should generally “ ‘exercise[ ] [their discretion] in light of the considerations’ underlying the grant of that discretion.” Halo, 136 S.Ct. at 1932 (quoting Octane Fitness, 134 S.Ct. at 1756). Octane Fitness in turn held that, in determining whether to award • attorney’s fees under § 285, a district court should “consider!] the totality of the circumstances.” Octane Fitness, 134 S.Ct. at 1756. In that connection Octane Fitness relied on “the comparable context of the Copyright Act,” id. noting that “[i]n Fogerty v. Fantasy, Inc., for example," }, { "docid": "20687315", "title": "", "text": "injunction in order to seek enhanced damages.” Mentor Graphics Corp. v. EVE-USA, Inc., 851 F.3d 1275, 1295-96 (Fed. Cir. 2017) (quoting Aqua Shield v. Inter Pool Cover Team, 774 F.3d 766, 773-74 (Fed. Cir. 2014)). The -Mentor Graphics court noted that after the United States Supreme Court’s decision in Halo, rigid rules surrounding the award of enhanced damages are inappropriate. See id. (quotingHalo, 136.S. Ct. at 1934 (“[W]e eschew any rigid formula for awarding enhanced damages under § 284 ....”)). Instead, Halo provides-that district courts have discretion to award enhanced damages in “egregious cases typified by willful misconduct” where a plaintiff demonstrates “subjective willfulness ... at the time of the challenged conduct.” Halo, 136 S.Ct. at 1934; see also PersonalWeb Techs. LLC v. Int’l Bus. Machines Corp., 2017 WL 2180980, at *20 (N.D. Cal. May 18, 2017) (“[Willful infringement] turns on the subjective belief of the accused infringer, measured at the time of the challenged conduct.”). In fact, “[d]istrict courts have, under § 284, the discretion ‘to punish the full range of culpable behavior’ and ‘courts should continue to take into account the particular circumstances of each case.’” PersonalWeb, 2017 WL 2180980 at *20 (citing Halo, 136 S.Ct. at 1933). Thus, following Halo, the question is whether the infringing conduct, whether it occurs pre- or post-filing, constitutes “egregious ... misconduct.” Halo, 136 S.Ct. at 1934. Samsung cites to Radware, 2016 WL 4427490, which held that the Seagate standard for post-filing willful infringement still applies after Halo. Id. at *3. However, the Court does not find Radware to be persuasive. First, the Seagate ruling on willful infringement in the context of post-filing conduct is dicta. The Seagate court made the rule as part of a discussion about whether certain information should be protected under the attorney-client privilege, and not as part of a dispositive determination of what kind of evidence can be used to show willful infringement. See Seagate, 497 F.3d at 1374 (holding that an “advice of counsel” defense to willful infringement does not waive the attorney-client privilege as to trial counsel partly because post-filing conduct is usually not relevant" }, { "docid": "11969712", "title": "", "text": "2003 publications anticipated the ’476 Patent. Accordingly, the motion for judgment as a matter of law as to prior publication is denied. 6. .Willfulness A week before trial began, the Supreme Court decided Halo Electronics, Inc. v. Pulse Electronics, Inc., — U.S. -, 136 S.Ct. 1923, 195 L.Ed.2d 278 (2016), and changed the framework for awarding enhanced damages. Before Halo, a patentee seeking enhanced damages first needed to show by clear and convincing evidence that the infringer acted despite an objectively high likelihood that its actions infringed a valid patent. Id. at 1930 (citing In re Seagate Technology, LLC, 497 F.3d 1360, 1371 (2007) (en banc)). This objective prong tended not to be met where an accused infringer had a reasonable defense to infringement. See Bard Peripheral Vascular, Inc. v. W.L, Gore & Associates, Inc., 682 F.3d 1003, 1005-06 (Fed. Cir. 2012). Second, the patentee had to show that the risk of infringement was either known or so obvious that it should have been known to the accused infringer. Seagate, 497 F.3d at 1371. Halo criticized the objective recklessness requirement, reasoning that it “excludes from discretionary punishment many of the most culpable offenders,” and faulted the requirement for “making dis-positive the ability of the infringer to muster a reasonable (even though unsuccessful) defense at the infringement trial.” 136 S.Ct. at 1932,1932-33. Halo explained 'that an infringer’s subjective bad faith alone could support an enhanced damages award.’ Id. at 1933. Moreover, Halo made clear that it is the infringer’s state of mind at the time of the challenged conduct that' matters, without regard to any later reasonable defense at trial. Id. In this case, the jury was instructed that it must find by a preponderance of the evidence that Campbell’s infringement of the ’476 Patent ivas egregious measured against Campbell’s knowledge at the time of the infringement. 7 Tr. 93. The jury was also told that “egregious conduct” could be described’ as “willful, wanton, malicious, bad faith, deliberate, consciously •wrongful, flagrant, or characteristic of a pirate..” Id. The jury was then instructed that it must consider the totality of the circumstances" } ]

[ { "docid": "23216780", "title": "", "text": "Corbitt relayed to Agent Steward the statement of Patrick Black, a Frazier associate arrested in a seemingly unrelated investigation, that Black had been regularly purchasing about two pounds of marijuana each week from Frazier in the neighboring town of Owensboro, Kentucky. The affidavit also reports that Agent Steward had obtained Frazier’s telephone records, which revealed that he was in “constant contact with known drug dealers” and that officers doing surveillance of Frazier’s Jeffries Street residence saw him coming and going in an expensive vehicle. After reviewing the five affidavits submitted before the Frazier affidavit, the magistrate judge advised Agent Steward that the affidavits should be revised to include the information that CI-178 had taped two of the controlled buys. Agent Steward made that revision to each of the first five affidavits but inexplicably — and unintentionally — did not supplement the Frazier affidavit. On reviewing the Frazier affidavit, the magistrate, who did not realize that it did not contain the information about the taped buys, instructed Agent Steward to “strengthen” paragraph 17, which cited Sixth Circuit eases in support of the proposition that “a search warrant may be properly issued against a suspected drug dealer’s residence despite the lack of direct evidence of criminal activity at the residence.” Agent Steward added a citation to United States v. Jones, 159 F.3d 969 (6th Cir.1998) (“in the case of drug dealers, evidence is likely to be found where the dealers live”) but made no further changes to the affidavit. Hence, the final draft of the Frazier affidavit describes the McGuire and Harris transactions, but does not specify that CI-178 was wearing a wire and recorded them. Apparently unaware that Agent Steward had not made all of the requested changes, the magistrate judge issued a warrant to search Frazier’s house, which ultimately resulted in the seizure of marijuana and firearms. Reserving his right to appeal the district court’s denial of his motion to suppress evidence pursuant to FED R. CRIM. P. 11(a)(2), Frazier pled guilty to possessing marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(D), and possessing" } ]

[ { "docid": "14101270", "title": "", "text": "2004, West Bank in Urbandale was robbed by a man wearing a mask, gloves, white tennis shoes and a helmet that completely covered his face. He threatened the teller with a “western-style” gun and forced her to place money into his bluish-green bag. The robber fled on a bicycle. Finally, in August 2004, the River City Community Credit Union in Davenport, Iowa, was robbed by a man wearing gloves, a black mask and a blue windbreaker with the hood pulled up over his head. The man threatened the River City teller with a gun, forcing her to put money into his bag. The robber fled on a bicycle. During the investigation of the three robberies, authorities recovered several clothing items believed to be worn by the robber. Iowa state authorities arrested Lewis for the River City Community Credit Un ion robbery and charged him with first-degree robbery. Pursuant to an order issued by the Iowa District Court for Scott County, state authorities collected a buccal swab from Lewis for DNA analysis. Prior to the buccal swab, Lewis was not given the opportunity to contact an attorney. The results from the buccal swab revealed that Lewis’s DNA matched the DNA found on a pair of gloves recovered from outside the credit union. Lewis was subsequently convicted for the River City Community Credit Union robbery in Scott County, Iowa (“Scott County conviction”). Federal investigators used the buccal swab results obtained by the Iowa authorities and found that Lewis’s DNA matched that found on clothing items recovered during the investigation of the Bank of America and West Bank robberies. A federal grand jury indicted Lewis on two counts of bank robbery, one count each for the Bank of America and West Bank robberies, and one count of possession of a firearm in furtherance of a crime of violence, relating to the West Bank robbery. Prior to trial, Lewis filed a motion to suppress the DNA test results obtained from his buccal swab arguing that the collection of the swab violated Iowa law and his Sixth Amendment right to counsel. The district court held" }, { "docid": "7170271", "title": "", "text": "Matlock, the police searched a house pursuant to consent by one of the inhabitants, and found a diaper bag in the closet containing proceeds of a bank robbery. The decision does not say whether the bag was closed. The issue was whether the third party’s consent to the search of the bedroom made the diaper bag contents admissible against the bank robber. The answer was “yes,” because “the consent of one who possesses common authority over the premises or effects is valid as against the absent, non-consenting person with whom that authority is shared.” Matlock uses the common law tort language, though not the tort concept, of “assumption of the risk.” The decision expressly rejects application of the law of property as the basis for deter mining whether consent to a search may be granted. Instead, Matlock teaches that the government may show valid consent to search by demonstrating that “permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.” Thus, if persons have “joint access or control for most purposes ... it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.” Because the third party’s consent was legally sufficient to permit the search of the bag, the Court did not reach the question of whether the officer’s reasonable belief as to the consent-giver’s authority would have sufficed. In the case at bar, the district judge denied the motion to suppress' based on Matlock. In my opinion, he was right. This case is controlled by Matlock. Mat-lock does not reach “apparent authority,” the theory to which the majority opinion speaks, and the majority, oddly, does not reach “assumption of the risk,” the theory to which the Supreme Court speaks in Matlock. There are two Ninth Circuit decisions upon which the majority opinion relies, United States v. Welch and United States v." }, { "docid": "14101269", "title": "", "text": "GRUENDER, Circuit Judge. A jury convicted James Edward Lewis of two counts of bank robbery, both in violation of 18 U.S.C. § 2113(a), and one count of possession of a firearm in further-anee of a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A). Lewis appeals, arguing that the district court erred in denying his motion to suppress DNA evidence obtained without an opportunity to consult with counsel and abused its discretion by admitting evidence of his prior state bank robbery conviction at trial. We affirm. I. BACKGROUND This case stems from three bank robberies that were committed within six months of each other. According to eyewitnesses, Bank of America in Urbandale, Iowa, was robbed in February 2004 by a man wearing dark gloves and a plaid scarf that completely covered his face. He threatened the teller with a gun and forced her to place money into his bag. The robber left the bank with the bag, entered the passenger side of a vehicle waiting for him outside the bank and fled. In July 2004, West Bank in Urbandale was robbed by a man wearing a mask, gloves, white tennis shoes and a helmet that completely covered his face. He threatened the teller with a “western-style” gun and forced her to place money into his bluish-green bag. The robber fled on a bicycle. Finally, in August 2004, the River City Community Credit Union in Davenport, Iowa, was robbed by a man wearing gloves, a black mask and a blue windbreaker with the hood pulled up over his head. The man threatened the River City teller with a gun, forcing her to put money into his bag. The robber fled on a bicycle. During the investigation of the three robberies, authorities recovered several clothing items believed to be worn by the robber. Iowa state authorities arrested Lewis for the River City Community Credit Un ion robbery and charged him with first-degree robbery. Pursuant to an order issued by the Iowa District Court for Scott County, state authorities collected a buccal swab from Lewis for DNA analysis. Prior to the buccal" }, { "docid": "7690257", "title": "", "text": "Wellman, 663 F.3d 224, 228 (4th Cir.2011) (quoting United States v. Grossman, 400 F.3d 212, 217 (4th Cir.2005)). The prosecution maintains that the district court’s suppression ruling must be affirmed, arguing that the “catch-all” clause in the search warrant for the Iron Ridge Road property required seizure of the receipt. It asserts that the green Franklin Community Bank money bag fell within that clause, as did the handgun receipt, because the officers then believed that Abramski had robbed the bank with a Glock handgun. The United States also contends that, in any event, the green bag was in plain view, and that the officers were entitled to seize it because its incriminating character was readily apparent. The prosecutors finally argue that the good faith exception applies, even if the search warrant was based on stale evidence and seizure of the green bag was somehow improper. a. First and foremost, it is clear to us that the Iron Ridge Road search warrant was supported by probable cause. The supporting affidavit for that warrant connected Abramski to the Rocky Mount bank robbery in several ways: • Abramski was flagged as a suspicious customer at the bank just a few days before the robbery; • He was having financial difficulties; • He had been fired by the police department for allegedly stealing money; • He was about the same height as the robber; • Abramski was seen wearing a watch and jacket similar to those worn by the robber; • He had tested a green Ford Explorer on the day of the robbery, and the witnesses asserted that the robber made his getaway in a blue Ford Explorer; and • Abramski had purchased firearms with a large amount of cash after the bank robbery. In these circumstances, there was a substantial basis for the magistrate judge to conclude that probable cause existed for the search of Abramski’s residence on Iron Ridge Road. b. Finally, we reject Abramski’s challenge to the scope of the search warrant for the Iron Ridge Road residence. The agents were then investigating the robbery of Franklin Community Bank, which" }, { "docid": "18483380", "title": "", "text": "been in jail the previous day. Someone contact ed the DeSoto County Sheriffs Department, which confirmed within 10 to 25 minutes that Michael Campbell had been in their custody at the time of the bank robbery. Michael Campbell’s handcuffs were removed. During the time that Michael Campbell’s alibi was being checked, Detective Oliver took the items from Billy Campbell’s pocket to his car. Within a few minutes, Assistant Police Chief Hal Pino arrived. Pino checked the $20 bills and found that three of them matched the serial numbers on the list of “bait bills” that the bank teller had given the robber. During the time it took to check the bills, Billy Campbell was left handcuffed. After the bait bills had been identified and Michael Campbell’s alibi was confirmed, Billy Campbell was told he was being held on suspicion of bank robbery, taken to a squad car, and advised of his rights. Billy Campbell later confessed to the bank robbery as well as several other armed robberies in the area in the weeks before the bank robbery. A consent search of the house on Fontaine Place (which was owned by the Campbells’ mother) revealed a hardhat, goggles, and plastic hair net matching those worn by the bank robber. Mrs. Campbell later located the handgun that had been used in the string of robberies and turned it over to the police. Before trial, Campbell moved to suppress the physical evidence obtained from the stop. After a hearing where three of the officers testified, the district court denied the motion to suppress, finding that, the officers had reasonable suspicion to detain the men getting into the car, that their conduct was reasonable under the circumstances, and that it did not exceed the bounds of an investigative detention. II. The “reasonableness of an investigatory stop and frisk” is reviewed de novo. United States v. Michelletti, 13 F.3d 838, 841 (5th Cir.1994) (en banc). Yet the evidence is reviewed “in the light most favorable to the government as the prevailing party,” and the denial of the motion to suppress will be upheld “if there" }, { "docid": "13111767", "title": "", "text": "“PHOENIX ARMS,” men’s clothing, and a credit card offer letter addressed to Andre Stevens. Mathis loosened the hinge on the Phoenix Arms container and seized a Phoenix Arms semi-automatic pistol and ammunition, along with a receipt for the gun from a Colorado pawn shop made out to Andre Stevens. Upon further search of the bag, Mathis discovered an Alcohol, Tobacco, and Firearm (ATF) purchase form for the gun, which was also in the name of Andre Stevens. Mathis seized the gun, ease, ammunition, receipt, ATF form, and letter. Jones told police that the bag belonged to Banks, although she referred to him as Andre Stevens. Banks was indicted for being a felon in possession of a firearm under 18 U.S.C. § 922(g). At trial, Banks stipulated to the use of the alias. Jones identified him as Andre Stevens, along with testifying that he spent several nights at her apartment and that he had borrowed her car with permission. Banks was convicted of violating § 922(g). He was sentenced to 100 months’ imprisonment, followed by three years of supervised release. II. The threshold issue in this case is whether Officer Mathis’s search of the locked gun case and seizure of its contents violated Banks’s Fourth Amendment rights. Banks filed a motion to suppress the gun, arguing Mathis violated his Fourth Amendment rights when he broke open and searched the gun case without a warrant. The district court denied the motion, holding that no Fourth Amendment search occurred because Banks had no reasonable expectation of privacy in the contents of what was plainly a gun case. Banks appeals the denial of his motion to suppress. We review “findings of historical fact only for clear error and ... give due weight to inferences drawn from those facts by resident judges and local law enforcement officers,” but the ultimate conclusion of whether an exception to the warrant clause exists we review de novo. Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). A. Police may seize, without a warrant, an item that is 1) in plain view 2)" }, { "docid": "23234277", "title": "", "text": "her belongings from the rental car, which they had impounded. Thompson refused to consent to a search of the car because, she said, she had marijuana in the trunk. She previously had told the agents there was a gun in the trunk. The FBI later learned the warrant for Thompson’s arrest was invalid and decided to release her. Thompson asked to remove more of her personal belongings from the impounded rental 'car. Agent Friedrich told her she could remove those items, but that an agent would have to watch her because the FBI was probably* going to obtain a search warrant for the vehicle, given the information that the car contained a gun and marijuana. Thompson agreed to this procedure, and while Agent Friedrich watched, she rummaged through her belongings in the trunk of the car. While she was doing so, Agent Fried-rich observed several pieces of clothing in the trunk that were similar to items worn by the bank robber, including a burgundy suit, a Kangol hat, and military boots. Based on Agent Friedrich’s observations, the FBI obtained a search warrant for the car. When the agents searched the car, they recovered the burgundy suit, one black and one silver handgun, several Kan-gol hats, military boots, and a black bag similar to one used by the suspect in several of the robberies. On April 8, 1998, a grand jury indicted Henderson on three counts of bank robbery for robbing the three banks in Las Vegas. Before trial, Henderson moved to compel disclosure of the tipster’s identity. The district court declined to hold an in camera hearing and denied the disclosure motion. Henderson also moved to exclude the clothes and firearms found in the trunk of his rental car. The district court concluded Henderson had standing to make such a challenge, but denied the motion. At trial, the government called two Bank of America employees, Rosalind Terlitzky and Michelle Sanders, who testified that they could not say whether Henderson was the man who robbed their bank on West Sahara on January 16, 1998. Later, over Henderson’s objection, the government called" }, { "docid": "19395307", "title": "", "text": "STRAS, Circuit Judge. A jury found Malcolm Roy Evans guilty of four offenses arising out of a bank robbery. We affirm his convictions and sentence. I. A man armed with a sawed-off shotgun robbed a Wells Fargo branch in Moorhead, Minnesota, and absconded with approximately $10,000. As he left the bank, he jumped into the back of a van that he found parked near the bank's front entrance. The driver escaped and took her keys with her. The robber then fled on foot. Soon thereafter, he carjacked someone else, who drove him at gunpoint to the West Acres Mall in Fargo, North Dakota, right across the border from Moorhead. Once there, the robber forced the driver out of the car and sped off. The police found the car a short distance from the mall. Using security footage, the police identified Evans as the perpetrator. The day after the robbery, they arrested him in Fargo as he left a Motel 6, where he was renting two rooms. The police then obtained a warrant to search the rooms and found over $2,000 in cash, a sawed-off shotgun, and items of clothing matching those the bank robber had worn. The United States charged Evans with armed bank robbery, attempted carjacking, carjacking, forcing a person to accompany him while attempting to avoid apprehension, and kidnapping. 18 U.S.C. §§ 1201(e), 2113(a), (d) - (e), 2119(1). The kidnapping charge was dismissed before trial. A jury found him guilty of the remaining four counts, and the district court sentenced him to 360 months in prison. Evans raises five arguments on appeal, which we address in the order they arose. II. Evans, in the first of his five arguments, challenges the sufficiency of the affidavit underlying the search warrant, which he believes lacked probable cause. The district court denied Evans's motion to suppress the evidence found in the search of his motel rooms. \"In reviewing the denial of [a] motion to suppress, we review the district court's ... legal conclusions de novo .\" United States v. Ahumada , 858 F.3d 1138, 1139 (8th Cir. 2017). \"Probable cause exists[" }, { "docid": "23696025", "title": "", "text": "Newman exclaimed, “I didn’t rob nobody!” Officers found a bundle of fifty twenty-dollar bills bearing the stamp and initials of tellers from the bank, as well as another packet of money on the ground and a few ten- and twenty-dollar bills scattered along a row of fence posts near Newman’s home. After officers arrested him, Newman naively asked, “If you don’t find the money, will I be okay?” The Indianapolis Police Department began gathering witnesses to the robbery almost immediately. Once officers apprehended Newman, other officers brought the Lloyds and Toni Ashford from the bank to Newman’s residence to make an identification. The witnesses were told only that they were being taken to this location to identify a suspect. The witnesses were brought in separate cars to view Newman in a “show-up identification” procedure in which Newman stood handcuffed in front of his house next to a police officer; the house was surrounded by yellow crime scene tape when the witnesses arrived. Each witness positively identified Newman as the bank robber. These identifications took place a little over one hour after the robbery. A grand jury indicted Newman for armed robbery (18 U.S.C. § 2113(a) & (d)) and for using a gun in the commission of a violent felony (18 U.S.C. § 924(c)). The district court denied Newman’s motion to suppress the show-up identifications^ and at trial the Lloyds and Toni Ashford again identified Newman as the perpetrator. In addition, one of the water company employees identified Newman as the man who stole the company’s truck, and a carpenter at the construction site near the crashed truck identified Newman as the man who abandoned the truck and walked away while discarding his clothing. Many of these witnesses at trial also identified the duffle bag and the clothing worn by Newman during the robbery. The jury convicted Newman of bank robbery, but it acquitted him on the gun charge. According to the mandate of 18 U.S.C. § 3559(c)(1), the district court sentenced him to life imprisonment because this was his third serious violent felony conviction. Moreover, based on an audit allegedly" }, { "docid": "6299162", "title": "", "text": "introduced evidence that: (1) James matched the tellers’ physical descriptions of the robber from both robberies; (2) he drove, at the time of the robberies, a vehicle matching the description of a car seen parked near the bank at both robberies, and tire marks left in the snow outside the bank matched the tires on his car; (3) the robber in the second robbery wore hot-pink fleece gloves, and two days after that robbery a witness saw someone matching James’s description and driving a car matching the vehicle observed at the scene of the robberies tossing what turned out to be a hot pink-colored glove in a dumpster, and subsequent testing developed James’s DNA inside the glove; (4) James confessed to Nebraska inmate Lateeno Mills that he committed the two Wisconsin robberies; (5) a gun that matched descriptions of the gun used in the second robbery was recovered from James at the time of his Nebraska arrest; (6) the safe seized from Martin’s Madison residence contained a gun that matched descriptions of the gun used in the first bank robbery; and (7) James made large cash purchases shortly after the second robbery. Based on that evidence, on June 18, 2008, the jury returned guilty verdicts against James on all charges. On September 4, 2008, the district court sentenced James to 42 years in prison. II. Analysis James claims that we should vacate the district court’s judgment and sentence because the court failed to suppress the items found in the safe that authorities removed from Martin’s home and, after obtaining a search warrant, searched. The district court’s denial of James’s suppression motion is subject to a dual standard of review. We review legal conclusions de novo and findings of fact for clear error. United States v. Whited, 539 F.3d 693, 697 (7th Cir.2008). The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures .... ” U.S. Const, amend. IV. In clarifying that the amendment addresses property interests in addition to privacy concerns, the Supreme Court defined the" }, { "docid": "3128113", "title": "", "text": "ROVNER, Circuit Judge. Ivan Lamont Sleet was convicted by a jury of two counts of armed bank robbery (18 U.S.C. § 2113(a) & (d)) and two counts of using a firearm during the commission of a crime of violence (18 U.S.C. § 924(c)). These convictions relate to two separate bank robberies — the first, of First Indiana Bank on August 27, 1993, and the second, of Union Federal Savings Bank on September 23, 1993. In this appeal, Sleet maintains that the district court committed a number of errors that allegedly entitle him to a reversal of those convictions and to a new trial. Finding no such error, we affirm Sleet’s convictions. I. Sleet first contends that the district court erred in denying his motion to suppress evidence recovered by FBI agents in searching his apartment after the second robbery. The agents discovered in the course of their search a gun and a pair of black gloves that matched the description of the gloves worn by the perpetrator of the First Indiana robbery. The search was conducted under the auspices of a warrant issued by a federal magistrate after Sleet had been arrested for the Union Federal robbery. FBI Special Agent Jack L. Osborne submitted an affidavit in support of the search warrant application in which he stated that the First Indiana robber had been described by witnesses as an African-American male in his mid-20s who was approximately 5'6\" tall and weighed 140 pounds. The robber had been wearing a red hooded sweatshirt, white pants, white tennis shoes, a ski mask, and gloves, and he had been brandishing a large handgun. Osborne explained that, according to witnesses, the robber had vaulted the bank’s counter, pointed his gun at bank employees, taken money from two teller positions, and placed the money in a dark gym bag. Witnesses also said that the robber then revaulted the counter and ran toward the Firethorn apartment complex, which is located approximately one block north of the First Indiana Bank. Sleet told Osborne after his arrest that he lived in the Firethorn complex, which Osborne then confirmed" }, { "docid": "14228136", "title": "", "text": "HAMILTON, Circuit Judge. Defendant Eugene Sweeney used a gun to rob a Milwaukee tavern where he had worked before. He was convicted of armed robbery under the Hobbs Act, 18 U.S.C. § 1951(a), brandishing a firearm during a crime of violence, 18 U.S.C. § 924(c), and possessing a firearm as a felon, 18 U.S.C. § 922(g)(1). He was sentenced as an armed career offender under 18 U.S.C. § 924(e). Sweeney appeals both his convictions and his sentence. He asserts that the district court erred in denying his motion to suppress the firearm central to all three convictions, which was seized in a warrantless search of the common space in the basement of his apartment building. He also asserts his sentence is erroneous, both because the district court did not state or support with findings all conditions of supervised release and because he does not qualify as an armed career criminal. We affirm the .district court’s denial of the motion to suppress the firearm, so Sweeney’s convictions stand. Following recent ease law concerning supervised release, however, we vacate Sweeney’s sentence and remand for re-sentencing. We do not resolve Sweeney’s challenge to the armed career criminal finding, which was first raised on appeal. That question should be addressed on remand, where both sides may develop a full record and the district court may consider whether the disputed legal issue matters to Sweeney’s ultimate sentence. I. The Fourth Amendment Issue Sweeney’s challenge to his convictions requires us to apply the Fourth Amendment to the police search of a common area of Sweeney’s apartment building. A police officer searched the area without a warrant and found a handgun that matched the victim’s description of the robber’s gun. We review the facts and then explain why the search did not violate Sweeney’s Fourth Amendment rights. A. The Robbery, Investigation, and Search On the morning of December 23, 20Í3, Melissa Baldus arrived at her job as general manager of Flannery’s Pub in Milwaukee. She had a bank bag containing cash for the register. She entered Flannery’s through an alleyway door and walked downstairs to her office." }, { "docid": "19395308", "title": "", "text": "rooms and found over $2,000 in cash, a sawed-off shotgun, and items of clothing matching those the bank robber had worn. The United States charged Evans with armed bank robbery, attempted carjacking, carjacking, forcing a person to accompany him while attempting to avoid apprehension, and kidnapping. 18 U.S.C. §§ 1201(e), 2113(a), (d) - (e), 2119(1). The kidnapping charge was dismissed before trial. A jury found him guilty of the remaining four counts, and the district court sentenced him to 360 months in prison. Evans raises five arguments on appeal, which we address in the order they arose. II. Evans, in the first of his five arguments, challenges the sufficiency of the affidavit underlying the search warrant, which he believes lacked probable cause. The district court denied Evans's motion to suppress the evidence found in the search of his motel rooms. \"In reviewing the denial of [a] motion to suppress, we review the district court's ... legal conclusions de novo .\" United States v. Ahumada , 858 F.3d 1138, 1139 (8th Cir. 2017). \"Probable cause exists[ ] if under the totality of the circumstances, a showing of facts can be made sufficient to create a fair probability that evidence of a crime will be found in the place to be searched.\" United States v. Wallace , 550 F.3d 729, 732 (8th Cir. 2008) (per curiam) (internal quotation marks and citation omitted). Evans argues that an affidavit from a detective who investigated the bank robbery, which the police submitted as part of the search-warrant application, did not adequately connect him to the crime. See United States v. Salter , 358 F.3d 1080, 1084 (8th Cir. 2004). In his view, the bank security footage relied upon by the detective in investigating the robbery was insufficient to establish probable cause, and the other evidence was too inconclusive to establish his identity as the bank robber. We disagree. The affidavit contained a lot more than just conjecture about the identity of the bank robber. It explained how the detective conducted the investigation, including his examination of video footage from a local bus, which depicted a" }, { "docid": "6299171", "title": "", "text": "would like to assist her with turning the gun over to police. On November 1, Zimmerman spoke with Martin’s attorney and told him that police were interested in evidence contained in the safe, and the two of them made arrangements to meet at Martin’s residence. Martin’s attorney had no objection to this process. On November 2, Zimmerman met with Martin and her attorney at Martin’s residence. Martin invited Zimmerman to come in, led Zimmerman to the safe, and said that the gun was inside. Zimmerman advised Martin and her attorney that he would seize the safe to protect the evidence, but that he would obtain a search warrant before searching inside the safe. Martin and her attorney could have voiced their objections to Zimmerman’s plan, but neither objected. The government submitted sufficient evidence for us to conclude that Martin voluntarily consented, through her words and actions, as a matter of law. Finally, even if there had been error in the district court’s failure to suppress the evidence seized from the safe, any such error would have been harmless. If the government had never uncovered evidence from the safe, at the least it still would have presented: (1) the testimony of the victim tellers whose descriptions of the robber during both robberies matched the defendant’s physical characteristics; (2) evidence describing the vehicle seen near the bank at the approximate times of both bank robberies, and the evidence that the defendant was stopped driving a vehicle that exactly matched that description; (3) the pink fleece glove, which matched the description of the gloves worn by the robber during the April 14 robbery, and which contained James’s DNA as the major component of the DNA identified inside the glove; (4) evidence that James was positively identified driving his vehicle two days after the second robbery, and was seen tossing a pink glove in a dumpster; (5) evidence that the handgun used in the April 14 robbery was recovered during the Nebraska arrest; and (6) evidence of James’s detailed admissions to both robberies made to an inmate in the Nebraska jail. We believe that" }, { "docid": "13538485", "title": "", "text": "counsel on this one-sided record (counsel has not testified), the testimony does raise questions about the extent of his involvement. On this record we are unwilling to make any further comment. BAZELON, Chief Judge concurring in the result: This case raises the troubling question of how much evidence is sufficient to establish a prima facie case of constructive possession when illicit drugs are found.in a common area of a residence shared by two or more people. Although I find that this Court’s decision in United States v. Davis, 183 U.S.App.D.C. 162, 562 F.2d 681 (1977), forces us to affirm Herron’s conviction, I believe the question warrants further discussion. At the end of the government’s case in chief, Herron moved for acquittal, arguing that the prosecution had failed to establish a prima facie case. In considering his claim that the trial court erred in denying his motion, we are allowed to consider only that evidence presented by the government up to that point in the trial. As the majority opinion details, that evidence showed that both Herron and Watson lived in, or at least frequented, the apartment. Heroin was found lying in the open on a dining room table. It was packaged as if for sale, in small foil packets approximately 1 inch by Vi inch, and arranged in neat rows near $150-$200 in cash and other items on the table. Additional quantities of heroin, not essential to support his conviction, were found concealed in a bag behind the kitchen stove. An “amber-colored vial containing a leafy green vegetable material” — later determined to be marijuana dusted with phen-cyclidine — was found atop the kitchen refrigerator. No fingerprints were taken of any of these drugs or their containers. Assuming that the law were a clean slate, several approaches would be open to one working with this evidence alone. First, one could hold all regular occupants of the apartment liable for possession of the drugs whether present or absent at the moment of the search. Second, one could hold liable only those found in the apartment at the time of the search." }, { "docid": "5364177", "title": "", "text": "BAUER, Circuit Judge. In crime as in other things, life sometimes imitates art. Moviegoers who saw the film “Point Break” will have vivid recollections of bank robbers masked as American presidents. John T. Hunter, Jr. and his father may not have been surfers in pursuit of the perfect wave, but they did use a similar modus operandi. Hunter, masked as various presidential figures including Michael Dukakis, conspired with his father to rob numerous banks in several states. A jury convicted him of conspiring to rob banks, of robbing sixteen banks, and of using and carrying a firearm during each of those robberies. 18 U.S.C. § 371; 18 U.S.C. §§ 2113(a) & (d); and 18 U.S.C. § 924(e)(1). Hunter raises several claims concerning the denial of his motion to suppress, the jury impanelment, and certain statements made by the prosecutor during closing argument. We affirm. I. Search Warrant After Federal Bureau of Investigation agents told his mother they were looking for him, Hunter turned himself in to the authorities. Several days later, the FBI obtained a search warrant for Hunter’s residence at 510 Palace Court in Schaumburg, Illinois. During the search, FBI agents recovered various items linking Hunter to the bank robberies. Not surprisingly, Hunter filed a motion to suppress the evidence. The district court denied the motion. Hunter argues (as he did before the district court) that the search warrant was issued without probable cause because it failed to state that 510 Palace Court was his residence and because it did not identify a sufficient nexus between 510 Palace Court and the items sought. He further contends that the affidavit submitted to secure the warrant contained intentionally or recklessly misstated facts and thus the district court should have suppressed the evidence. We review de novo the district court’s determination that probable cause existed to issue the warrant. Ornelas v. United States, — U.S.-, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). In doing so, however, we take care “both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by" }, { "docid": "22941384", "title": "", "text": "search of the residence that evening, FBI agents discovered a locked box under a bed in the only bedroom that contained men’s clothing and toiletries. After prying the box open, the agents seized a silver revolver and $300 in cash. Prior to trial, McNeal sought to suppress the evidence seized by the FBI in executing the \"two warrants. - On April 2, 2014, McNeal moved to suppress the silver revolver seized from his residence, contending that the FBI agents had exceeded the scope of the search warrant by opening the locked box. Thereafter, on May 8, 2014, McNeál fíled a motion to suppress all evidence seized from his residence, and on May 28, 2014, he moved to suppress “the tracking warrant and all evidence that flowed therefrom,” see J.A. 148.. In support of those motions, McNeal maintained that the search warrant and- the tracking warrant were not supported by probable cause. On June 6, 2014, the district court denied the suppression motions. B. 1. The evidence at trial established that, on October 29, 2013, Link and Stoddard en-. gaged in the Rockville robbery attempt. Upon entering the Wells Fargo branch, Link brandished a handgun and yelled for everyone to get on the floor, while Stod-dard vaulted the teller counter. Link also barked instructions at Stoddard during the course of the robbery attempt. At one point, Link fired his handgun into the ceiling. Shortly thereafter, the two men fled the bank empty handed. Undeterred, Link and Stoddard committed the Bank of Georgetown robbery the very next day. A teller explained how Stoddard covered his face with a ski mask, while Link wore a hoodie and wielded a silver revolver. Stoddard jumped over the counter, a black plastic bag in hand, and demanded that the teller give him money. When the teller opened the cash drawer., Stoddard started grabbing the cash and stuffing it in the trash bag, Link, meanwhile, shouted instructions at Stoddard. In the end, the robbers fled with approximately $3500 in cash. Link and Stoddard struck again on November 25, 2013, this time committing the Glebe Road robbery. Link" }, { "docid": "7690258", "title": "", "text": "the Rocky Mount bank robbery in several ways: • Abramski was flagged as a suspicious customer at the bank just a few days before the robbery; • He was having financial difficulties; • He had been fired by the police department for allegedly stealing money; • He was about the same height as the robber; • Abramski was seen wearing a watch and jacket similar to those worn by the robber; • He had tested a green Ford Explorer on the day of the robbery, and the witnesses asserted that the robber made his getaway in a blue Ford Explorer; and • Abramski had purchased firearms with a large amount of cash after the bank robbery. In these circumstances, there was a substantial basis for the magistrate judge to conclude that probable cause existed for the search of Abramski’s residence on Iron Ridge Road. b. Finally, we reject Abramski’s challenge to the scope of the search warrant for the Iron Ridge Road residence. The agents were then investigating the robbery of Franklin Community Bank, which had been carried out with a firearm similar to a dock 19 handgun. When the agents discovered the green zippered bag bearing the Franklin Community Bank logo, and when they found inside that bag the receipt for Alvarez’s purchase of the dock 19 handgun, such evidence had to be seized. In these circumstances, the Iron Ridge Road warrant was properly issued, and the agents’ seizure of the receipt was not unconstitutional. The district court therefore did not err in declining to suppress that evidence. IV. Pursuant to the foregoing, the judgment of the district court is affirmed. AFFIRMED . Citations herein to \"J.A. _\" refer to the contents of the Joint Appendix filed by the parties in this appeal. . Count One of the indictment alleged, in relevant part, as follows: On or about November 17, 2009, in the Western Judicial District of Virginia, the defendant, BRUCE JAMES ABRAMSKI, JR., in connection with his acquisition of a firearm, a Glock Model 19, 9 mm semiautomatic pistol, from a federally licensed firearms dealer, did knowingly make" }, { "docid": "10534553", "title": "", "text": "NANGLE, Senior District Judge. Donald Dean Gleason entered a conditional plea of guilty to one count of bank robbery in violation of 18 U.S.C. § 2113. He appeals the district court’s denial of his motion to suppress and three aspects of his sentence. We affirm. I. On June 16, 1993, at approximately 1:35 p.m., Gleason robbed American Trust and Savings Bank in Lowden, Iowa. He displayed a small handgun, and directed Janie Drewleow, a bank employee, to place money in a medium-sized white plastic shopping bag with a checkerboard design. Drewleow deposited $5,022.00 in the bag and handed the bag to Gleason. Gleason then fled the bank in an older model full-size green pickup truck with no tailgate or license plate in the back and with a large spare tire lying in the bed of the truck. Shortly after Gleason fled, police arrived at the bank and radioed a description of the bank robber and the truck over the police aid channel. This description included the fact that the robber was armed. Approximately 25 minutes after the robber fled the bank, Trooper Agapitos of the Iowa State Patrol met a dark green pickup matching the description of the getaway vehicle. The pickup turned into a gravel road, and Gleason got out of the truck. Trooper Agapitos asked Gleason if he had any weapons in the truck and if he could check the truck for weapons. Gleason consented, mentioned that he was a former police officer in Davenport, Iowa, and assisted in the search. Trooper Abernathy then arrived, read Gleason his Miranda rights, handcuffed him, and placed him in the back of the patrol ear. Despite Gleason’s statement that the passenger door was inoperable, Trooper Agapitos unlocked and opened that door; under the passenger seat, he found a white plastic bag with a checkerboard design on front containing $5,002.00. The gun and the clothing used in the robbery were never found. When FBI agents arrived, they asked Gleason for a written consent to search. Before signing the consent form, Gleason asked Trooper Agapitos to note the following on the bottom of" }, { "docid": "16847758", "title": "", "text": "TJOFLAT, Circuit Judge: Following a jury trial in the United States District Court for the Northern District of Georgia, Terry Lewis Burston was convicted of one count of postal robbery, 18 U.S.C. § 2114 (1994), and one count of bank rob bery, 18 U.S.C. § 2113(a) (1994). He appeals, contending that the evidence was insufficient to convict him and challenging the district court’s denial of motions to suppress certain evidence and its limitation of the cross-examination of one of the prosecution’s witnesses. We affirm. I. At trial, the Government presented witnesses who testified as follows: A person approached the service counter at a United States post office in Atlanta (the “West End post office”) on August 16, 1995, showed the clerk a robbery note, and then gave the clerk a bag and instructed her to “[p]ut the money in the bag_ Hurry up, all of it.” The clerk then placed an unidentified amount of money in the bag; the robber took the bag and fled the premises. The robber was described by eyewitnesses as an African-American male wearing a baseball cap and sunglasses, with unusual looking hair. One of the eyewitnesses, a postal service employee, chased the robber out of the post office. The employee lost sight of the robber, but shortly thereafter saw him speed away from the area in a dark green Cadillac. The postal employee recorded the license plate number of the vehicle; it was registered to Burston. The employee later identified Burston as the person who had robbed the post office. About two months later, an African-American male wearing a baseball cap and sunglasses, with unusual looking hair, robbed an Atlanta bank. A few hours after the bank robbery, Burston gave an acquaintance of his, Jacquelita Foster, a plastic bag and asked her to keep it. Soon thereafter, postal inspectors searched Ms. Foster’s residence and found the bag. The bag contained a baseball cap, sunglasses, and a wig. Bank employees who were present during the robbery identified these items as the ones worn by the robber. Postal inspectors also found, in the trunk of Burston’s car," } ]

[ { "docid": "12851442", "title": "", "text": "of whether Gebhard successfully pleaded a prima facie case for unseaworthiness. As discussed, this question also answers the jurisdictional question. The allegations are sufficient to establish a prima facie case. Gebhard must first establish that the scope of the warranty of seaworthiness extends to him and his duties. He was a “marine clerk longshoreman” whose duty station was at ship’s side near a pier-based crane. His role in the loading operation was to position, in proper sequence, the straddle carriers under the crane. The containers left by the straddle carriers were then lifted directly onto the ship by crane. Gutierrez held that the “duty to provide a seaworthy ship and gear * * * applies to longshoremen unloading the ship whether they are standing aboard ship or on the pier.” (373 U.S. at 215, 83 S.Ct. at 1191.) Respondents wisely make no attempt to distinguish Gutierrez on the basis that there the ship was being unloaded. (See United States Lines Co. v. King (4th Cir. 1966) 363 F.2d 658, 661.) Their argument is that Gebhard’s duties did not directly involve him in the loading operation, but were only preparation for loading. That narrow view is not supported by the authorities: A petitioner need be only an integral part of the loading process, and Gebhard was certainly that. (See Thompson v. Calmar S.S. Corp. (3d Cir.) 331 F.2d 657, cert. denied (1964) 379 U.S. 913, 85 S.Ct. 259, 13 L.Ed.2d 184; Hagans v. Ellerman & Bucknall S.S. Co. (3d Cir. 1963) 318 F.2d 563, 571-572; Byrd v. American Export Isbrandtsen Lines, supra; Litwinowicz v. Weyerhaeuser S.S. Co., supra, 179 F.Supp. at 817-818.) His duties were comparable to those of the longshoremen in Pope & Talbot, Inc. v. Cordray (9th Cir. 1958) 258 F.2d 214, whose role in the unloading process was to supervise the moving of the ship’s cargo from ship’s side to its place of rest on the pier. (258 F.2d at 217-218 nn. 2 and 3.) “We hold that the duty of providing a seaworthy ship and gear at the time of this accident extended to the appellee, whether" } ]

[ { "docid": "1207991", "title": "", "text": "No. 947, which was owned by Atlantic & Gulf Stevedores, Inc. Defendant asserts that even if No. 947 was backed into plaintiff by Givens or rolled into the plaintiff because of some defective condition, the defendant cannot be held liable, because the activity in which the plaintiff was then engaged on the pier was not yet the loading operation of the ship. Defendant concedes, as it must, that it is immaterial whether the accident occurred on the pier away from the ship, if the longshoreman was actually engaged in the service of the ship, which includes the loading operation. Gutierrez v. Waterman Steamship Corporation, 373 U.S. 206, 83 S.Ct. 1185, 10 L.Ed.2d 297 (1963); Hagans v. Ellerman & Bucknall Steamship Co., 318 F.2d 563 (3 Cir. 1963). We believe that defendant unduly delimits the term “loading” to the actual transfer of the cargo from the front of the pier to the vessel. The backing of No. 947 to the intended cargo and the endeavor to attach the tow rope between the vehicles were concomitant and essential steps in the loading operation. As this Court has stated in a similar situation in which the defendant claimed that plaintiff was merely preparing the cargo for loading, when he was injured while placing “chocks” under a draft of steel beams prior to their being hoisted aboard the vessel: “The term loading is not a word of art, and is not to be narrowly and hypertechnically interpreted. Plaintiffs’ actions at the time of the accident were direct, necessary steps in the physical transfer of the steel from the railroad car into the vessel which constituted the work of loading.” Litwinowicz v. Weyerhaeuser Steamship Co., 179 F.Supp. 812, 817-818 (E.D. Pa. 1959). Since we conclude that plaintiff was essentially engaged in a loading operation and was using equipment necessary for that purpose, which was at least temporarily adopted by the ship, the defendant’s motion must be denied. . Cited and Quoted with approval in Spann v. Lauritzen, 344 F.2d 204, 207 (3 Cir. 1965) which also distinguishes Fredericks v. American Export Lines, 227 F.2d 450" }, { "docid": "22319007", "title": "", "text": "Bros., Inc., 328 U. S., at 7. Although longshoremen may not obtain maintenance and cure, there are certain circumstances under which they may recover for injuries caused by unseaworthiness whether the accident occurred on board ship, Seas Shipping Co. v. Sieracki, supra, or on the dock, Gutierrez v. Waterman S. S. Corp., supra. See, e. g., Nacirema Operating Co. v. Johnson, 396 U. S., at 217-220. The Fifth Circuit's expansive definition of loading (432 F. 2d, at 384) would be difficult to delimit. Already, summary judgment has been denied the shipowner where a warehouseman sued on an unseaworthiness theory after he had been injured by a power shovel he was using to transfer grain from a railroad car to a warehouse where it would be subsequently taken on board a ship. Olvera v. Michalos, 307 F. Supp. 9 (SD Tex. 1968). Summary judgment has also been denied when a longshoreman brought an unseaworthiness suit after he had been injured inside a pier shed; the \"squeeze lift\" truck he was driving struck an unidentified object on the shed floor causing the steering wheel to spin around and shatter plaintiff's wrist. McNeil v. A/S Havtor, 326 F. Supp. 226 (ED Pa. 1971). The attempt to define the process of \"loading\" for purposes of determining whether a longshoreman injured on shore can recover on an unseaworthiness claim has produced substantial confusion in the lower courts; the cases are impossible to rationalize. Denying compensation: Forkin v. Furness Withy & Co., 323 F. 2d 638 (CA2 1963), McKnight v. N. M. Paterson & Sons, 286 F. 2d 250 (CA6 1960), cert. denied, 368 U. S. 913 (1961); Henry v. S. S. Mount Evans, 227 F. Supp. 408 (Md. 1964); Sydnor v. Villain & Fassio e Compania, 323 F. Supp. 850 (Md. 1971). Awarding compensation or denying summary judgment for defendant: Spann v. Lauritzen, 344 F. 2d 204 (CA3), cert. denied, 382 U. S. 938 (1965); Chagois v. Lykes Bros. S. S. Co., 432 F. 2d 388 (CA5 1970); Olvera v. Michalos, supra; McNeil v. A/S Havtor, supra. Reliance upon the gangplank line as the presumptive" }, { "docid": "12851446", "title": "", "text": "closer to the ship than was Weigel in the loading operation. Weigel was employed to bring the cargo to ship’s side; Gebhard was employed to meet that cargo and to place it for loading. (Cf. Pope & Talbot, Inc. v. Cordray, supra.) Second, Partenweederei was decided on the basis of a failure of proof after trial. The present record is sufficient to establish prima facie that Gebhard was in the ship’s service. (See also Olvera v. Michalos, supra.) The second element of the unseaworthiness claim is that the injury be caused by a piece of the ship’s equipment or an appurtenant appliance. Controlling on this issue are Huff v. Matson Navigation Co., supra; Deffes v. Federal Barge Lines (5th Cir.) 361 F.2d 422, cert. denied Continental Grain Co. v. Deffes, (1966) 385 U.S. 969, 87 S.Ct. 503, 17 L.Ed.2d 433; and Spann v. Lauritzen, supra, in each of which equipment unattached to the ship and standing on the pier was held appurtenant to the ship as a necessary and integral part of the loading or unloading process. (See also Olvera v. Michalos, supra.) Although the landward extension of unseaworthiness has been criticized (e. g., Skibinski v. Waterman S.S. Corp. (2d Cir. 1966) 360 F.2d 539, 543 (Judge Friendly dissenting), cert. denied (1967) 387 U.S. 921, 87 S.Ct. 2027, 18 L.Ed.2d 975), the overall result has not been unfortunate. Liability is generally shifted back to the stevedoring company through indemnity suits, and that company then has an incentive to improve its loading and unloading equipment. (See Italia Societa per Azioni di Navigazione v. Oregon Stevedoring Co. (1964) 376 U.S. 315, 324, 84 S.Ct. 748, 11 L.Ed.2d 732; Proudfoot, “ ‘The Tar Baby’: Maritime Personal Injury Indemnity Actions” (1968) 20 Stan.L.Rev. 423, 445-46.) The third element of the tort is that the equipment used was not reasonably fit for its intended use. Gebhard deserves a trial on this issue, and we therefore reverse the District Court’s dismissal of the action. We conclude only that admiralty jurisdiction exists. We express no opinion about ultimate liability. A determination of liability can be made only" }, { "docid": "5368362", "title": "", "text": "engaged in the loading process of the vessel for the purposes of unseaworthiness. 326 F.Supp. at 229. The court also noted that: [BJecause the work was done by three separate longshoring gangs in three integrated steps does not make the entire operation any less a loading operation. ... In a realistic sense, the loading process must begin somewhere. We hold, on the present record, that it at least begins when the intended cargo in the pier shed begins its movement towards the ship. We consider it a strained analysis that the process of loading may only be characterized as the actual physical lifting of the cargo into the ship’s hold. 326 F.Supp. at 229. Garrett v. Gutzeit, 491 F.2d 228 (4th Cir. 1974), is a Fourth, Circuit case decided in 1974. The factual situation involved unloading bales of paper from a ship. The cargo was removed from the ship and set down on the pier where other members of the longshoring gang then moved the bales one at a time on hand trucks into a pier shed. As they arrived in the shed, plaintiff’s job was to take the cargo off the hand trucks and stack the bales four-high. The court noted that “the cargo was transferred from the pier apron and stacked in the shed to facilitate the removal of more bales from the hold.” 491 F.2d at 230. When one of the metal bands encasing the cargo snapped, the plaintiff was injured. The court held: The [district] court apparently concluded that ‘unloading’ ceases when the cargo is no longer in contact with the ship, i. e., when the bales were deposited on the pier and discharged from the ship’s gear. Although we find this theory appealing because of its ease of application, we believe that the case law rejects such a narrow definition of ‘unloading.’ 491 F.2d at 234. The case is also important because it apparently rejects the narrow definition of “loading and unloading” set forth in Drumgold, supra, 260 F.Supp. 983. The court first noted the district court’s reference to its prior decision in the Drum-gold" }, { "docid": "3786448", "title": "", "text": "was holding down the auger; his work — as much as that of the longshoremen stationed on the ship — was an essential part of an unbroken sequence of moving the rice from the pier to the ship. We find support for our conclusion in the case law. Spann v. Lauritzen, 3 Cir. 1964, 344 F.2d 204, and Hagans v. Ellerman & Bucknall S.S. Co., 3 Cir. 1963, 318 F.2d 563, are mirror images of the instant case. In each of those cases the longshoreman was injured during an unloading operation, and the question was whether he was working in the service of the ship. In Spann the plaintiff operated the control handle of a hopper situated on the pier. A large crane would shovel the cargo — nitrate of soda ■ — out of the ship’s hold and drop it into the hopper. The plaintiff would then open the door of the hopper to let the nitrate fall into trucks waiting below. The plaintiff was injured when a load of nitrate was dropped into the hopper; because of a defective release mechanism the handle swung down suddenly and prematurely and struck him. In response to the contention that the plaintiff was engaged in loading the trucks rather than unloading the cargo, the Third Circuit said, He is no less [within the protection of the maritime jurisdiction] because modern ingenuity suggested the desirability of combining the unloading of the vessel with the loading of the trucks. It has frequently been said that the doctrine of unseaworthiness is not to be rigidly construed so as to exclude from its scope modern labor saving methods and the use of modern machinery to do the work traditionally done in loading or unloading vessels. Huff v. Matson Navigation Company, 338 F.2d 205 (9th Cir. 1964); Rodriguez v. Coastal Ship Corporation, 210 F.Supp. 38 (S.D.N.Y.1962). The labor saving method here used which facilitated the removal of the cargo by motor vehicles may not be held to eliminate the unloading of the cargo from the area of traditional work of the seamen in the service of" }, { "docid": "9725550", "title": "", "text": "these views of the Court. See, e. g., Ferrante v. Swedish American Lines, 331 F.2d 571 (3 Cir. 1964); Thompson v. Calmar Steamship Corporation, 331 F.2d 657 (3 Cir. 1964), cert. denied 379 U.S. 913, 85 S.Ct. 259,13 L.Ed.2d 184. It is in this context that we must answer the two questions presented by this appeal: (1) was plaintiff engaged in the service of the vessel, and (2) does a large shore based hopper have sufficient connection with the ship to be within the subject matter of the warranty of seaworthiness. (1) The Court below held in effect that since the cargo was removed from the vessel by a large crane over which the owner of the vessel had no control, and the cargo was then dropped into a hopper designed to facilitate the loading of trucks and not in some storage place to be picked up by the consignee, the longshoreman who attended to the opening and closing of the hopper was engaged in loading the trucks and not in unloading the cargo. This is, of course, a close case. But since the hopper held only eight bucket loads of nitrate it is clear that the hopper had to be emptied repeatedly in order to make room for the crane to dump the subsequent bucket loads which it dug out of the vessel. Clearly the maritime jurisdiction extended to the act of reaching into the vessel and removing cargo. Such removal, having a beginning, had to have an end. If the cargo had been delivered on a second story of the pier, as the court below suggested, the longshoreman injured in the course of the crane’s reaching into the vessel, removing bucket loads and dumping them on to the second floor of the pier, would have been within the protection of the maritime jurisdiction. He is no less so because modern ingenuity suggested the desirability of combining the unloading of the vessel with the loading of the trucks. It has frequently been said that the doctrine of unseaworthiness is not to be rigidly construed so as to exclude from" }, { "docid": "18116987", "title": "", "text": "Inc., 297 F.Supp. 87 (D.Md.1968), aff’d, 408 F.2d 378 (4th Cir. 1969). The fifth and ninth circuits likewise have rejected the theory that the singular negligent act of a longshoreman can render a vessel unseaworthy. Luckenbach Overseas Corp. v. Usner, 413 F.2d 984 (5th Cir. 1969), cert. granted, 397 U.S. 933, 90 S.Ct. 940, 25 L.Ed.2d 114 (1970); and Tim v. American President Lines, Ltd., 409 F.2d 385 (9th Cir. 1969). Other cases cited by Sydnor in support of his position involve equipment either shore-based or ship-based, such as conveyors, cranes, etc., in use in the actual process of loading or unloading a vessel. See Huff v. Matson Nav. Co., 338 F.2d 205 (9th Cir. 1964), cert. denied, 380 U.S. 943, 85 S.Ct. 1026, 13 L.Ed.2d 963 (1965) (longshoreman in hold injured because of defect in convey- or stationed ashore); Spann v. Lauritzen, 344 F.2d 204 (3rd Cir.) cert. denied, 382 U.S. 938, 86 S.Ct. 386, 15 L.Ed.2d 348 (1965) (defective shore-based hopper being used in unloading vessel caused injury to longshoreman on shore). These cases are based upon the theory that there can be no “modern divisions” of labor, and a shipowner’s liability for an unseaworthy vessel extends beyond the members of the crew and include a longshoreman like the plaintiff. A shipowner may be liable even though the unseaworthiness be transitory and the injuries incurred were suffered elsewhere than aboard the vessel. There is, however, a line of decisions attempting to limit this liability to some direct connection with the vessel itself. See Forkin v. Furness Withy & Co., 323 F.2d 638 (2d Cir. 1963); Fredericks v. American Export Lines, Inc., 227 F.2d 450 (2d Cir. 1955); Metzger v. Steamship Kirsten Torm, 245 F.Supp. 227, 1965 A.M.C. 2272. It is the plaintiff's thesis that no matter what is the causation of an injury on the dock, whether ship’s gear or personnel are involved, if a ship is being loaded or discharged, a longshoreman is permitted to challenge the seaworthiness of the vessel. If this theory were adopted, liability of the ship could extend without limit to accidents far" }, { "docid": "12002990", "title": "", "text": "of the stevedore’s warranty, may maintain a suit in admiralty to recover on that warranty,) The judgment of the District Court is reversed and the .case remanded for trial. Reversed and remanded. . A factual dispute was raised in the briefs as to whether the boat being loaded by Old Dominion was owned or operated by SMI. Because we are reviewing a dismissal on the pleadings, we assume that all factual allegations in the libel are true. . We assume, without the necessity of deciding the issue, that Sanderlin, an employee of the ship, could have prevailed had he sued the ship for unseaworthiness because of the negligently performed stevedoring. See Reed v. The Yaka, 373 U.S. 410, 83 S.Ct. 1349, 10 L.Ed.2d 448 (1962). Equipment used in the stevedoring operation, whether aboard ship or on the pier, is an appurtenance of the ship, and the ship has a non-delegable duty to see that the loading and unloading are done properly. See, e. g., Spann v. Lauritzen, 344 F.2d 204 (3rd Cir.), cert. denied, 382 U.S. 938, 86 S.Ct. 386, 15 L.Ed.2d 348 (1965) and Huff v. Matson Navigation Co., 338 F.2d 205 (9th Cir. 1964), cert. denied, 380 U.S. 943, 85 S.Ct. 1026, 13 L.Ed.2d 963 (1965). . See Delta Oxygen Co. v. Scott, 238 Ark. 434, 383 S.W.2d 885 (1964); Connolly v. Hagi, 24 Conn.Sup. 198, 188 A.2d 884 (1963); Dagley v. Armstrong Rubber Co., 344 F.2d 245 (7th Cir. [Ind.] 1965); Wagner v. Larson, 257 Iowa 1202, 136 N.W.2d 312 (1965); Hill v. Harbor Steel and Supply Corp., 374 Mich. 194, 132 N.W.2d 54 (1965); Cintrone v. Hertz Truck Leasing & Rental Service, 45 N.J. 434, 212 A.2d 769 (1965); Williams v. Union Carbide Corp., 17 A.D.2d 661, 230 N.Y.S.2d 476 (1962); Lonzrick v. Republic Steel Corp., 1 Ohio App.2d 374, 205 N.E.2d 92 (1965); Brewer v. Oriard Powder Co., 66 Wash.2d 187, 401 P.2d 844 (1965)." }, { "docid": "12851439", "title": "", "text": "318 F.2d 563; Litwinowicz v. Weyerhaeuser S.S. Co. (E.D.Pa.1959) 179 F.Supp. 812; Di Paola v. International Terminal Operating Co. (S.D.N.Y.1968) 294 F.Supp. 736.) In many instances courts have adopted this conclusion by implication, for they address the jurisdictional and substantive issues of such a claim without discussion or even reference to section 740. (E. g., Spann v. Lauritzen (3d Cir.) 344 F.2d 204, cert. denied (1965) 382 U.S. 938, 86 S.Ct. 386, 15 L.Ed.2d 348; Partenweederei, MS Belgrano v. Weigel (9th Cir.) 299 F.2d 897, cert. denied (1962) 371 U.S. 830, 83 S.Ct. 49, 9 L.Ed.2d 67; Byrd v. American Export Isbrandtsen Lines (E.D.Pa. 1969) 300 F.Supp. 1207; Olvera v. Michalos (S.D.Tex.1968) 307 F.Supp. 9.) Admiralty jurisdiction exists whenever the petitioner has successfully pleaded all the elements of the tort: (1) that his work was “in the ship’s service” and that the warranty of seaworthiness thereby extended to him (Gutierrez v. Waterman S.S. Corp. (1963) 373 U.S. 206, 214-215, 83 S.Ct. 1185, 10 L.Ed.2d 297), (2) that he was injured by a piece of equipment not reasonably fit for its intended use (Mitchell v. Trawler Racer, Inc. (1960) 362 U.S. 539, 550, 80 S.Ct. 926, 4 L.Ed.2d 941), and (3) that the piece of equipment was a part of the ship’s equipment or an appurtenant appliance. (Huff v. Matson Navigation Co. (9th Cir. 1964) 338 F.2d 205, cert. denied (1965) 380 U.S. 943, 85 S.Ct. 1026, 13 L.Ed.2d 963). Such an unseaworthiness claim would necessarily possess the requisite maritime “status” or “relation,” and admiralty jurisdiction would exist regardless of the locality of the injury. (See Massa v. C.A. Venezuelan Navigacion (2d Cir. 1962) 298 F.2d 239.) Jurisdiction for an unseaworthiness claim can be based on section 740 in an appropriate situation, just as a Jones Act claim for a shipboard injury can be said to be based on the locality rule. Thus the Supreme Court in Gutierrez v. Waterman S.S. Corp., supra, appeared to find jurisdiction for the unseaworthiness claim both in section 740 and in the status rule of Strika. (See also Robillard v. A. L. Burbank & Co." }, { "docid": "2276961", "title": "", "text": "the accident occurred on the pier away from the ship, if the longshoreman was actually engaged in the service of the ship, which includes the loading operation. Gutierrez v. Waterman Steamship Corporation, 373 U.S. 206, 83 S. Ct. 1185, 10 L.Ed.2d 297 (1963); Hagans v. Ellerman & Bucknall Steamship Co., 318 F.2d 563 (3 Cir.1963). “We believe that defendant unduly delimits the term ‘loading’ to the actual transfer of the cargo from the front of the pier to the vessel. The backing of No. 947 to the intended cargo and the endeavor to attach the tow rope between the vehicles were concomitant and essential steps in the loading operation. “As this Court has stated in a similar situation in which the defendant claimed that plaintiff was merely preparing the cargo for loading, when he was injured while placing ‘chocks’ under a draft of steel beams prior to their being hoisted aboard the vessel: ‘The term loading is not a word of art, and is not to be narrowly and hypertechnically interpreted. Plaintiffs’ actions at the time of the accident were direct, necessary steps in the physical transfer of the steel from the railroad car into the vessel which constituted the work of loading.’ Litwinowicz v. Weyerhaeuser Steamship Co., 179 F.Supp. 812, 817-818 (E.D.Pa.1959). “Since we conclude that plaintiff was essentially engaged in a loading operation and was using equipment necessary for that purpose, which was at least temporarily adopted by the ship, the defendant’s motion must be denied.” 300 F.Supp. at 1208 (footnote omitted). For other holdings in a similar vein, see, e.g., Gebhard v. S. S. Hawaiian Legislator, 9 Cir. 1970, 425 F.2d 1303; Thompson v. Calmar Steamship Corp., 3 Cir. 1964, 331 F.2d 657, cert. denied, 379 U.S. 913, 85 S.Ct. 259, 13 L.Ed.2d 184; Hagans v. Ellerman & Bucknall Steamship Co., 3 Cir. 1963, 318 F.2d 563; cf. Olvera v. Michalos, S.D.Tex.1968, 307 F.Supp. 9. We choose to align ourselves with the cases which define “loading” and “unloading” in a realistic sense rather than as hyperteehnical terms of art. It seems to us that plaintiff Law was" }, { "docid": "3786450", "title": "", "text": "the vessel. 344 F.Supp. at 206. If the plaintiff in Spann was engaged in unloading the vessel as he directed the movement of nitrate from the shore-based hopper into the trucks, in the converse situation Chagois was surely engaged in loading the ship as he helped move grain from the railroad cars into the hopper. In Hagans the injury occurred one step further along in the unloading process. One hundred pound bags of sand were lowered from the ship into flat trucks. The trucks were then towed into a warehouse on the pier. The plaintiff was injured while unloading the cargo from the trucks and stacking them in the warehouse. Responding to the argument that plaintiff could not avail himself of the unseaworthiness remedy, the Third Circuit said, “The conclusion is inescapable that Hagans performed an integral part of the unloading of the vessel and thus as a matter of law he was in the ship’s service.” 318 F.2d at 571. In the language of the court, Chagois’s activities in the boxcar were “an integral part” of one continuous loading operation and thus were in the service of the ship. See also Olvera v. Michalos, S.D.Tex.1968, 307 F.Supp. 9, 11. Thompson v. Calmar S.S. Corp., 3 Cir. 1963, 331 F.2d 657; Byrd v. American Export Isbrandtsen Lines, Inc., E.D.Pa. 1969, 300 F.Supp. 1207, and Litwinowicz v. Weyerhaeuser S.S. Co., E.D.Pa.1959, 179 F.Supp. 812, concern the question whether the plaintiff was participating in á loading operation. In Thompson the plaintiff was injured while helping move gondola freight cars into position so that their contents could be loaded directly into the ship. Concluding that the plaintiff was “a member of a longshoremen’s gang engaged in loading a vessel,” 331 F.2d at 659-660, and that the unsafe method of loading cargo constituted unseaworthiness, the Third Circuit affirmed a judgment for the plaintiff. Id. at 660-661. The plaintiff in Byrd was struck by a forklift truck while attempting to tow another forklift truck from the back to the front of the pier so that it could, be lifted aboard the ship as cargo. Denying" }, { "docid": "9725549", "title": "", "text": "condition created by the stevedore was transient and the shipowner had neither actual nor constructive knowledge of it. Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 549, 80 S.Ct. 926, 4 L.Ed.2d 941 (1960). In the Reed case, supra, a longshoreman was allowed to recover from the shipowner for unseaworthiness due to a defect in wooden pallets which were used in loading the ship, even though the shipowner was also the stevedoring company which hired the longshoreman. The same concern for the welfare of longshoremen is at the foundation of the Supreme Court’s decisions which have held the shipowner entitled to indemnity from the stevedor-ing company. Thus, in Italia Societa per Azioni di Navigazione v. Oregon Steve-doring Co., Inc., 376 U.S. 315, 84 S.Ct. 748, 11 L.Ed.2d 732 (1964), a shipowner, which had been held liable for unseaworthiness was permitted to recover indemnity from a stevedoring company, which employed the injured longshoreman, for breach of the implied warranty of workmanlike service even though there was no negligence by the stevedore. We have sought to effectuate these views of the Court. See, e. g., Ferrante v. Swedish American Lines, 331 F.2d 571 (3 Cir. 1964); Thompson v. Calmar Steamship Corporation, 331 F.2d 657 (3 Cir. 1964), cert. denied 379 U.S. 913, 85 S.Ct. 259,13 L.Ed.2d 184. It is in this context that we must answer the two questions presented by this appeal: (1) was plaintiff engaged in the service of the vessel, and (2) does a large shore based hopper have sufficient connection with the ship to be within the subject matter of the warranty of seaworthiness. (1) The Court below held in effect that since the cargo was removed from the vessel by a large crane over which the owner of the vessel had no control, and the cargo was then dropped into a hopper designed to facilitate the loading of trucks and not in some storage place to be picked up by the consignee, the longshoreman who attended to the opening and closing of the hopper was engaged in loading the trucks and not in unloading the cargo. This" }, { "docid": "9441914", "title": "", "text": "the traditional duties of a seaman, the court held that Garrett failed to prove his case. The court apparently concluded that “unloading” ceases when the cargo is no longer in contact with the ship, i. e., when the bales were deposited on the pier and discharged from the ship’s gear. Although we find this theory appealing because of its ease of application, we believe that the case law rejects such a narrow definition of “unloading.” At the outset we observe that the remedy provided by the warranty of seaworthiness is to be liberally applied to carry out its humanitarian purpose. Thus, the cases have broadly defined the word “seaman,” have extended the list of devices considered a part of the ship’s gear, and have expanded the definition of unseaworthiness. A member of the crew is no longer denied recovery for injuries sustained in the ship’s service merely because he is ashore at the time the injury is suffered; likewise a longshoreman when engaged in the duties of a seaman is entitled to maritime remedies if jurisdiction resides in an admiralty court. In view of this obvious trend to fully develop the humanitarian purposes of the warranty of seaworthiness we find no reason to apply a hyper-technical definition to the terms loading and unloading. In Hagans v. Ellerman & Bucknall Steamship Co., 318 F.2d 563 (3 Cir. 1963), the court upheld a recovery by the clainjant-longshoreman for injuries sustained while stacking cargo at a pier building after the cargo was discharged from the ship’s hold and carried by trucks to the building. The court found the work was “an integral part of the unloading of the vessel” since the pier apron could not accommodate the cargo. 318 F.2d at 571. Thus, the court concluded that “as a matter of law he was in the ship’s service” and entitled thereby to the “protection of the doctrine of unseaworthiness.” 318 F.2d at 571; see also Huff v. Matson Navigation Co., 338 F.2d 205 (9 Cir. 1964), and Spann v. Lauritzen, 344 F.2d 204 (3 Cir. 1965). Chagois v. Lykes Brothers Steamship Co., 432" }, { "docid": "9725552", "title": "", "text": "its scope modern labor saving methods and the use of modern machinery to do the work traditionally done in loading or unloading vessels. Huff v. Matson Navigation Company, 338 F.2d 205 (9 Cir. 1964); Rodriguez v. Coastal Ship Corporation, 210 F.Supp. 38 (S.D.N.Y. 1962). The labor saving method here used which facilitated the removal of the cargo by motor vehicles may not be held to eliminate the unloading of the cargo from the area of traditional work of the seamen in the service of the vessel. That the completion of the unloading of a vessel is within the traditional work of the seaman is illustrated in a number of our cases. In Hagans v. Ellerman & Bucknall Steamship Company, 318 F.2d 563 (3 Cir. 1963), plaintiff was a member of a twenty-two man gang engaged in unloading a cargo of sand from a ship. After the bags of sand were discharged from the ship they were loaded onto four-wheeled flat cars and towed to a pierside warehouse for temporary storage. Plaintiff was removing the bags from the flat cars and piling them on the warehouse floor when he slipped on sand which had escaped from the bags. Notwithstanding defendant’s claim that plaintiff was merely stacking the bags for transshipment we held as a matter of law that plaintiff’s work was in the service of the ship: “They were the same bags handled by his fellow longshoremen who had started the process of discharge of the cargo in the hold of the vessel. The pier apron could not contain the large number of bags which, in any event, had to be protected from the weather, by being placed within the pier building. The conclusion is inescapable that Hagans performed an integral part of the unloading of the vessel and thus as a matter of law he was in the ship’s service.” (p. 571). In Thompson v. Calmar Steamship Corporation, 331 F.2d 657 (1964), we sustained recovery by a plaintiff longshoreman who was injured while engaged in the movement of freight cars which were propelled by the ship’s line into a position" }, { "docid": "18116986", "title": "", "text": "to attach a tow rope, the forklift backed up catching plaintiff between the two vehicles. No ship’s gear was attached to either forklift truck and the moving vehicle was owned by the stevedore company. The court held that the longshoreman was engaged in the service of the ship, a loading operation, and was using equipment necessary for that purpose. This • equipment was, therefore, at least temporarily, adopted by the ship making the vessel liable. But see Lundy v. Isthmian Lines, Inc., 423 F.2d 913 (4th Cir. 1970) in which a ship was not held to be unseaworthy merely because a tow motor driven by one longshoreman rode over the foot of another longshoreman on board the vessel during the discharge of the ship’s cargo. The court said “our decisions do not require a finding of unseaworthiness as a matter of law from every negligent act or omission of a longshoreman that injures a fellow worker.” Id. at 915. This appears to be the settled law in this circuit. See Benton v. United States Lines, Inc., 297 F.Supp. 87 (D.Md.1968), aff’d, 408 F.2d 378 (4th Cir. 1969). The fifth and ninth circuits likewise have rejected the theory that the singular negligent act of a longshoreman can render a vessel unseaworthy. Luckenbach Overseas Corp. v. Usner, 413 F.2d 984 (5th Cir. 1969), cert. granted, 397 U.S. 933, 90 S.Ct. 940, 25 L.Ed.2d 114 (1970); and Tim v. American President Lines, Ltd., 409 F.2d 385 (9th Cir. 1969). Other cases cited by Sydnor in support of his position involve equipment either shore-based or ship-based, such as conveyors, cranes, etc., in use in the actual process of loading or unloading a vessel. See Huff v. Matson Nav. Co., 338 F.2d 205 (9th Cir. 1964), cert. denied, 380 U.S. 943, 85 S.Ct. 1026, 13 L.Ed.2d 963 (1965) (longshoreman in hold injured because of defect in convey- or stationed ashore); Spann v. Lauritzen, 344 F.2d 204 (3rd Cir.) cert. denied, 382 U.S. 938, 86 S.Ct. 386, 15 L.Ed.2d 348 (1965) (defective shore-based hopper being used in unloading vessel caused injury to longshoreman on shore). These" }, { "docid": "2276962", "title": "", "text": "time of the accident were direct, necessary steps in the physical transfer of the steel from the railroad car into the vessel which constituted the work of loading.’ Litwinowicz v. Weyerhaeuser Steamship Co., 179 F.Supp. 812, 817-818 (E.D.Pa.1959). “Since we conclude that plaintiff was essentially engaged in a loading operation and was using equipment necessary for that purpose, which was at least temporarily adopted by the ship, the defendant’s motion must be denied.” 300 F.Supp. at 1208 (footnote omitted). For other holdings in a similar vein, see, e.g., Gebhard v. S. S. Hawaiian Legislator, 9 Cir. 1970, 425 F.2d 1303; Thompson v. Calmar Steamship Corp., 3 Cir. 1964, 331 F.2d 657, cert. denied, 379 U.S. 913, 85 S.Ct. 259, 13 L.Ed.2d 184; Hagans v. Ellerman & Bucknall Steamship Co., 3 Cir. 1963, 318 F.2d 563; cf. Olvera v. Michalos, S.D.Tex.1968, 307 F.Supp. 9. We choose to align ourselves with the cases which define “loading” and “unloading” in a realistic sense rather than as hyperteehnical terms of art. It seems to us that plaintiff Law was clearly engaged in “loading” the SAGAMORE HILL under any conventional interpretation of that term. He was part of a group of longshoremen who were engaged in the total operation of moving cargo from the dock to the vessel. Some of the longshoremen involved in the operation were on board the vessel, while others were on the dock. The efforts of both the ship-side workers and the shore-side workers were necessary to load the ship. We think it would be incongruous and capricious to deny the protection of the warranty of seaworthiness to plaintiff Law while granting it to his fellow longshoremen whose duties happened to involve activities on the vessel or the actual physical act of lifting the cargo onto the ship. To deny him the benefits of the doctrine of unseaworthiness under these circumstances would be to reject the humanitarian policy which underlies the doctrine. Law was subjected to the risks and hazards of loading the ship; he should likewise receive the protections afforded those who load ships. In so holding, of course, we" }, { "docid": "3786451", "title": "", "text": "part” of one continuous loading operation and thus were in the service of the ship. See also Olvera v. Michalos, S.D.Tex.1968, 307 F.Supp. 9, 11. Thompson v. Calmar S.S. Corp., 3 Cir. 1963, 331 F.2d 657; Byrd v. American Export Isbrandtsen Lines, Inc., E.D.Pa. 1969, 300 F.Supp. 1207, and Litwinowicz v. Weyerhaeuser S.S. Co., E.D.Pa.1959, 179 F.Supp. 812, concern the question whether the plaintiff was participating in á loading operation. In Thompson the plaintiff was injured while helping move gondola freight cars into position so that their contents could be loaded directly into the ship. Concluding that the plaintiff was “a member of a longshoremen’s gang engaged in loading a vessel,” 331 F.2d at 659-660, and that the unsafe method of loading cargo constituted unseaworthiness, the Third Circuit affirmed a judgment for the plaintiff. Id. at 660-661. The plaintiff in Byrd was struck by a forklift truck while attempting to tow another forklift truck from the back to the front of the pier so that it could, be lifted aboard the ship as cargo. Denying the defendant’s motion for summary judgment, the court held that “[t]he backing of [the forklift] to the intended cargo and the endeavor to attach the tow rope- between the vehicles were concomitant and essential steps in the loading operation”. 300 F.Supp. at 1208. The plaintiffs in Litwinowicz were injured while standing in a gondola car atop stacks of steel beams. As they attempted to raise the beams to place the necessary slings around them, the hoisting device broke, and the beams fell and struck the plaintiffs. Holding that the plaintiffs were engaged in the work of loading, the court said, It is of no moment that the draft was raised and then lowered onto chocks before it began its upward and lateral movement into the ship. The term loading is not a work of art, and is not to be narrowly and hypertechnically interpreted. Plaintiffs’ actions at the time of the accident were direct, necessary steps in the physical transfer of the steel from the railroad car into the vessel, which constituted the work of" }, { "docid": "5368361", "title": "", "text": "a “squeeze lift” truck within the confines of a warehouse or pier shed. His job was to lift and transfer cases from pallets owned by one company to pallets owned by the defendant. The plaintiff never went aboard a vessel, and his function was simply to move cargo from one pallet to another inside the pier shed. Plaintiff was injured due to some defect in the truck. The court stated: Defendant asks that we characterize libellant’s job as a mere transfer of materials from the place on the pier warehouse to another place within the warehouse. . . .We cannot subscribe to the narrow characterization urged by defendant. The more prevalent view which is well supported by authoritative case law is to define the term loading in a realistic, pragmatic and non-ritualistic manner. 326 F.Supp. at 228. The court states the rule thus: Where the conduct in question is a direct and necessary step in the loading operation and where the equipment being used is necessary for that purpose, libellant must realistically be considered as engaged in the loading process of the vessel for the purposes of unseaworthiness. 326 F.Supp. at 229. The court also noted that: [BJecause the work was done by three separate longshoring gangs in three integrated steps does not make the entire operation any less a loading operation. ... In a realistic sense, the loading process must begin somewhere. We hold, on the present record, that it at least begins when the intended cargo in the pier shed begins its movement towards the ship. We consider it a strained analysis that the process of loading may only be characterized as the actual physical lifting of the cargo into the ship’s hold. 326 F.Supp. at 229. Garrett v. Gutzeit, 491 F.2d 228 (4th Cir. 1974), is a Fourth, Circuit case decided in 1974. The factual situation involved unloading bales of paper from a ship. The cargo was removed from the ship and set down on the pier where other members of the longshoring gang then moved the bales one at a time on hand trucks into a" }, { "docid": "5368354", "title": "", "text": "court remarked: The term loading is not a word of art, and is not to be narrowly and hyper-technically interpreted. Plaintiffs’ actions at the time of the accident were direct, necessary steps in the physical transfer of the steel from the railroad car into the vessel, which constituted the work of loading. 179 F.Supp. at 817-18. The court expressly rejected the defense contention that plaintiff was merely preparing the cargo for loading, and was therefore not actually engaged in loading the ship. In Hagans v. Ellerman & Bucknall S.S. Co., 318 F.2d 563 (3d Cir. 1963), bags of sand were unloaded from a ship in canvas slings. The bags were placed upon a four-wheeled flatbed truck; then a tow motor vehicle was hooked to the truck and pulled it into a large warehouse building some distance from the ship’s berth. After the truck arrived inside the warehouse, plaintiff’s job was to lift off bags of sand and stack them five-high on the floor of the warehouse. Plaintiff slipped on loose sand on the warehouse floor and was injured. The defense claimed that plaintiff was merely stacking bags for purposes of transshipment, an argument which has a familiar ring in the context of the cases here on appeal. The court, in rejecting this argument, held: He was unloading bags of sand from the motor towed trucks and placing them in their first immobile resting place ashore. They were the same bags handled by his fellow longshoremen who had started the process of discharge of the cargo in the hold of the vessel. The pier apron could not contain the large number of bags which, in any event, had to be protected from the weather, by being placed within the pier building. The conclusion is inescapable that Hagans performed an integral part of the unloading of the vessel and thus as a matter of law he was in the ship’s service. 318 F.2d at 571. In Thompson v. Calmar S.S. Corp., 331 F.2d 657 (3d Cir. 1964), the problem again involved loading steel from freight cars into a ship. In order to" }, { "docid": "9441915", "title": "", "text": "jurisdiction resides in an admiralty court. In view of this obvious trend to fully develop the humanitarian purposes of the warranty of seaworthiness we find no reason to apply a hyper-technical definition to the terms loading and unloading. In Hagans v. Ellerman & Bucknall Steamship Co., 318 F.2d 563 (3 Cir. 1963), the court upheld a recovery by the clainjant-longshoreman for injuries sustained while stacking cargo at a pier building after the cargo was discharged from the ship’s hold and carried by trucks to the building. The court found the work was “an integral part of the unloading of the vessel” since the pier apron could not accommodate the cargo. 318 F.2d at 571. Thus, the court concluded that “as a matter of law he was in the ship’s service” and entitled thereby to the “protection of the doctrine of unseaworthiness.” 318 F.2d at 571; see also Huff v. Matson Navigation Co., 338 F.2d 205 (9 Cir. 1964), and Spann v. Lauritzen, 344 F.2d 204 (3 Cir. 1965). Chagois v. Lykes Brothers Steamship Co., 432 F.2d 388 (5 Cir. 1970), upheld an award of damages to a longshoreman injured on the pier adjacent to a ship while transferring grain from a boxcar to the ship; Chagois was engaged in “an essential part of an unbroken sequence of moving the . . . [cargo] from the pier to the ship.” 432 F.2d at 391 (footnote omitted). In the case at bar the district court distinguished the cases discussed above by noting that they were decided immediately after Gutierrez and prior to “the limitations imposed by Victory Carriers.” We believe the court incorrectly interpreted Victory Carriers; it has ex-’ tended Victory Carriers’ limitations upon jurisdiction by analogy to justify rigid limitations upon the scope of protection afforded by the warranty of seaworthiness. Constitutional limitations upon federal jurisdiction and the absence of specific statutory authorization weighed heavily in limiting admiralty jurisdiction in Victory Carriers. However, where, as in the instant case, jurisdiction clearly exists those factors do not compel limitations upon the warranty of seaworthiness. The Supreme Court has historically limited the scope" } ]

[ { "docid": "22404339", "title": "", "text": "instance, Congress could have, but did not, deny noncompensatory, postpetition tax penalties the first priority given to other administrative expenses, and bankruptcy courts may not take it upon themselves to make that categorical determination under the guise of equitable subordination. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Section 507(a)(1) provides, in relevant part: “(a) The following expenses and claims have priority in the following order: (1) First, administrative expenses allowed under section 503(b) of this title . . . .” Under § 503(b)(1), administrative expenses include “any tax . . . incurred by the estate” (with certain exceptions not relevant here), as well as “any fine [or] penalty ... relating to [such] a tax ...Section 726(a)(1) adopts the order of payment specified in § 507 for Chapter 7 proceedings. Section 510(c) provides that “the court may . . . under principles of equitable subordination, subordinate for purposes of distribution all or part of an allowed claim ....” Noland argues that “although the penalties at issue arose postpetition,” this claim should be viewed as a prepetition penalty because a “reorganized debtor is in many respects similar to a prepetition debtor ... [and] the conversion of [this] case to chapter 7 was tantamount to the filing of a new petition.” Brief for Respondent 16, n. 7. But we agree with the Sixth Circuit, see In re First Truck Lines, Inc., 48 F. 3d 210, 214 (1995), that the penalties at issue here are postpetition administrative expenses pursuant to 11 U. S. C. §§ 348(d), 503(b)(1). Although § 348(d) provides that a “claim against the estate or the debtor that arises after the order for relief but before conversion in a case that is converted under section 1112, 1208, or 1307 of this title, other than a claim specified in section 503(b) of this title, shall be treated for all purposes as if such claim had arisen immediately before the date of the filing of the petition,” the claim for priority here is “specified in" } ]

[ { "docid": "22404329", "title": "", "text": "First Truck Lines, Inc., 141 B. R. 621, 629 (SD Ohio 1992). The District Court affirmed. Internal Revenue Service v. Noland, 190 B. R. 827 (SD Ohio 1993). After reviewing the legislative history of the 1978 revision to the Bankruptcy Code and several recent appeals cases on equitable subordination of tax penalties, the Sixth Circuit affirmed, as well. In re First Truck Lines, Inc., 48 F. 3d 210 (1995). The Sixth Circuit stated that it did “not see the fairness or the justice in permitting the Commissioner’s claim for tax penalties, which are not being assessed because of pecuniary losses to the Internal Revenue Service, to enjoy an equal or higher priority with claims based on the extension of value to the debtor, whether secured or not. Further, assessing tax penalties against the estate of a debtor no longer in existence serves no punitive purpose. Because of the nature of postpetition, nonpecuniary loss tax penalty claims in a Chapter 7 case, we believe such claims are susceptible to subordination. To hold otherwise would be to allow creditors who have supported the business during its attempt to reorganize to be penalized once that effort has failed and there is not enough to go around.” Id., at 218. See also Burden v. United States, 917 F. 2d 115, 120 (CA3 1990); Schultz Broadway Inn v. United States, 912 F. 2d 230, 234 (CA8 1990); In re Virtual Network Services Corp., 902 F. 2d 1246, 1250 (CA7 1990). We granted certiorari to determine the appropriate scope of the power under the Bankruptcy Code (Code) to subordinate a tax penalty, 516 U. S. 1005 (1995), and we now reverse. The judge-made doctrine of equitable subordination predates Congress’s revision of the Code in 1978. Relying in part on our earlier cases, see, e.g., Comstock v. Group of Institutional Investors, 335 U. S. 211 (1948); Pepper v. Litton, 308 U. S. 295 (1939); Taylor v. Standard Gas & Elec. Co., 306 U. S. 307 (1939), the Fifth Circuit, in its influential opinion in In re Mobile Steel Co., 563 F. 2d 692, 700 (1977), observed that" }, { "docid": "18030441", "title": "", "text": "bankruptcy scholarship has highlighted these ex ante effects of bankruptcy law — that is, \"moving backward in time, how the law influences the parties’ incentives to invest.” Alan Schwartz, The Absolute Priority Rule and the Firm’s Investment Policy, 72 Wash. U. L.Q. 1213, 1213 (1994). See also Susan Rose-Ackerman, Risk Taking and Ruin: Bankruptcy and Investment Choice, 20 J. Legal Stud. 277 (1991); David A. Skeel, Jr., Markets, Courts, and the Brave New World of Bankruptcy Theory, 1993 Wis. L.Rev. 465. This scholarship reiterates a theme of Adam Smith's. \"When the law does not enforce the performance of contracts, it puts all borrowers nearly upon the same footing with bankrupts or people of doubtful credit in better regulated countries. The uncertainty of recovering his money makes the lender exact the same usurious interest which is usually required from bankrupts.” Adam Smith, The Wealth of Nations, Bk. I, Chap. IX, para. 14 (1776). See also Scott M. Browning, No Fault Equitable Subordination: Reassuring Investors That Only Government Penalty Claims Are at Risk, 34 Wm. & Mary L.Rev. 487, 524 (1993). . In Virtual Network, the bankruptcy court rejected the debtor-in-possession's request to subordinate the Internal Revenue Service’s tax penalty claims, but the district court reversed. In re Virtual Network, 902 F.2d at 1247. . The Supreme Court recently reversed two cases in which bankruptcy courts equitably subordinated federal tax penalties. See United States v. Noland, 517 U.S. 535, 116 S.Ct. 1524, 134 L.Ed.2d 748 (1996), rev’g 48 F.3d 210 (6th Cir.1995); United States v. Reorganized CF & I Fabricators of Utah, Inc., 518 U.S. 213, 116 S.Ct. 2106, 135 L.Ed.2d 506 (1996), rev’g 53 F.3d 1155 (10th Cir.1995). The Supreme Court unanimously held that the bankruptcy court's exercise of its power of equitable subordination must not have the \"inevitable result” of equitably subordinating \"every tax penalty.” Noland, 517 U.S. at 539-43, 116 S.Ct. at 1527-28; see also Reorganized CF & I Fabricators, 518 U.S. at --, 116 S.Ct. at 2115; id. (Thomas, J., concurring in part and dissenting in part). The appellee, suggests that these Supreme Court rulings \"ratify” the approach" }, { "docid": "15713830", "title": "", "text": "MARTIN, J., delivered the opinion of the court, in which ENSLEN, D.J., joined. BATCHELDER, J. (p. 219), delivered a separate concurring opinion. BOYCE F. MARTIN, Jr., Circuit Judge. We have before us an appeal of the bankruptcy court’s decision to equitably subordinate the Commissioner of Internal Revenue Service’s claim for postpetition, nonpecu-niary loss tax penalties to the claims of general unsecured creditors. For the following reasons we affirm the decision of the district court. The debtor in this case, First Truck Lines, Inc., voluntarily filed for relief under Chapter 11 of the Bankruptcy Code on April 10, 1986. During the postpetition operation of its business, the debtor-in-possession did not pay to the Internal Revenue Service accrued Federal Insurance Contributions Act and Federal. Unemployment Tax Act taxes. In June 1988, the debtor moved to convert the case to a Chapter 7 bankruptcy, and the bankruptcy court ordered conversion on August 1, 1988. Thomas R. Noland was appointed the Trustee. The debtor ceased operations thereafter, and liquidation of the< estate assets did not produce sufficient funds to pay all creditors in fall. The bar date for filing claims under Chapter 7 was December 1, 1988. On November 22, 1988, the Internal Revenue Service filed a “Request for Payment of Administrative Expenses” claim (“Claim 102”). Claim 102 was comprised of accrued postpetition, preconversion taxes, interest, and penalties. On April 20, 1989, the Internal Revenue Service filed an additional “Request for Payment of Administrative Expenses” claim (“Claim 107”), amending Claim 102. The bankruptcy court permitted Claim 107 to partially amend Claim 102, adding a penalty for postpetition, unpaid Federal Unemployment Tax Act taxes. Once litigation commenced, the Commissioner and the Trustee stipulated that the tax and interest portion of Claim 102, but not the tax penalty portion, were administrative expenses with priority under 11 U.S.C. §§ 726(a)(1), 507(a)(1), and 503(b)(1) (1988). We take this stipulation to mean that all taxes and interest were in fact given a priority in the bankruptcy estate. The issue before the bankruptcy court, then, was whether administrative expense priority should be accorded to the postpetition tax penalties. The bankruptcy" }, { "docid": "19259944", "title": "", "text": "because of the Debtors’ present insolvency- Brody relies upon decisions dealing with whether funds which stockholders place in a business reflect a contribution of capital or debt. See, e.g., Bauer v. C.I.R., 748 F.2d 1365 (9th Cir.1984); In re Interstate Cigar Co., 182 B.R. 675 (Bankr.E.D.N.Y.1995). These decisions are not on point. There is no question that Brody holds claims rather than an equity interests. His equity interests expired at the end of the required period for the exercise of these warrants. The Debtors are in breach of their obligation to purchase these equity interests prior to the expiration of the warrant exercise period. These claims, however, must be equitably subordinated. Brody contends there can be no equitable subordination of a claim absent inequitable conduct on the part of the claimant. He cites for this proposition United States v. Noland, — U.S. -, 116 S.Ct. 1524, 134 L.Ed.2d 748 (1996). But the Supreme Court said, in Noland,: “[W]e need not decide today whether a bankruptcy court must always find creditor misconduct before a claim may be equitably subordinated.” Id. at-, 116 S.Ct. at 1528. The Court’s reasoning in Noland, moreover, supports rather than undermines equitable subordination of claims for the purchase of equity interests. The Court’s holding was to deny equitable subordination of a claim filed by the Internal Revenue Service for penalties which accrued as a result of a chapter 11 debtor failing to pay its postpetition taxes. The Court so ruled because it believed subordination of such claims on a categorical level to be in conflict with sections of the Code providing for the priority of claims. Id. at -, 116 S.Ct. at 1527. See § 503(b)(1)(C), § 507(a)(1) and § 726(a)(1). The Court recognized that in setting forth the order of distribution in chapter 7, section 727 provides that its order of priority applies “[ejxeept as provided in section 510 of this title,” and that section 510(c) authorizes subordination under “principles of equitable subordination.” Id. at -, 116 S.Ct. at 1527. But the Court observed there is no body of pre-Code case law equitably subordinating penalty claims." }, { "docid": "22096030", "title": "", "text": "of equity”). In this instance, Congress could have, but did not, deny noncompensatory, postpetition tax penalties the first priority given to other administrative expenses, and bankruptcy courts may not take it upon themselves to make that categorical determination under the guise of equitable subordination. The judgment of the Court of Appeals is re versed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. . Section 507(a)(1) provides, in relevant part: \"(a) The following expenses and claims have priority in the following order: (1) First, administrative expenses allowed under section 503(b) of this title_\" Under § 503(b)(1), administrative expenses include \"any tax ... incurred by the estate\" (with certain exceptions not relevant here), as well as \"any fine [or] penalty ... relating to [such] a tax....” Section 726(a)(1) adopts the order of payment specified in § 507 for Chapter 7 proceedings. . Section 510(c) provides that \"the court may ... under principles of equitable subordination, subordinate for purposes of distribution all or part of an allowed claim....” . Noland argues that \"although the penalties at issue arose postpetition,” this claim should be viewed as a prepetition penalty because a \"reorganized debtor is in many respects similar to a prepetition debtor ... [and] the conversion of [this] case to chapter 7 was tantamount to the filing of a new petition.” Brief for Respondent 16, n. 7. But we agree with the Sixth Circuit, see In re First Truck Lines, Inc., 48 F.3d 210, 214 (1995), that the penalties at issue here are post-petition administrative expenses pursuant to 11 U.S.C. §§ 348(d), 503(b)(1). Although § 348(d) provides that a \"claim against the estate or the debtor that arises after the order for relief but before conversion in a case that is converted trader section 1112, 1208, or 1307 of this title, other than a claim specified in section 503(b) of this title, shall be treated for all purposes as if such claim had arisen immediately before the date of the filing of the petition,” the claim for priority here is “specified in section 503(b)” and Congress" }, { "docid": "19259509", "title": "", "text": "ORDER AFFIRMING DECISION OF THE BANKRUPTCY COURT STAFFORD, Senior District Judge. Elizabeth B. Sullivan (“Sullivan”), the debtor and appellant in this action, seeks review of two orders entered by the United States Bankruptcy Court for the Northern District of Florida on June 2,1998, and July 7, 1998, respectively. In the first order, the Bankruptcy Court granted the Internal Revenue Service’s motion to dismiss Sullivan’s Chapter 13 case. In the second order, the Bankruptcy Court denied Sullivan’s motion for reconsideration. I. Sullivan filed her Chapter 13 petition on July 25, 1997. On her bankruptcy schedules, filed on August 27, 1997, she included a noncontingent, liquidated, unsecured debt — a federal income tax liability — of $224,106.55. Sullivan based the amount of this liquidated debt on a letter, dated June 9, 1997, from the Internal Revenue Service (“IRS”), which stated: “Our records.. .indicate that you owe $196,766.17 as of 6-9-97, [for] tax periods 12-31-84 thru 12-31-94, including tax penalty and interest. . .[plus] $27,340.38 for tax period 12-31-95.” Doc. 29, Ex. A. Under 11 U.S.C. § 109(e), a debtor is eligible for protection under Chapter 13 of the Bankruptcy Code only if the individual “owes, on the date of the filing of the petition, noncontingent, liquidated, unsecured debts of less than $250,000.” On the date she filed her schedules, Sullivan listed total liquidated, unsecured debts in the amount of $244,612.95. On or about November 24, 1997, approximately four months after Sullivan filed her bankruptcy petition, the IRS filed its proof of claim for unpaid federal income taxes in the total amount of $297,323.24, including an unsecured priority claim in the amount of $250,023.28 for tax years 1988 to 1995, including interest to petition date, and an unsecured nonpriority claim in the amount of $47,300.06 for penalties, including interest, to petition date. On January 22, 1998, the IRS amended its proof of claim, listing an unsecured priority claim in the amount of $244,897.16, and an unsecured nonpriority claim in the amount of $29,991.49, for a total claim of $274,888.65. On January 8, 1998, the Chapter 13 Trustee filed a motion to dismiss. The" }, { "docid": "18030442", "title": "", "text": "L.Rev. 487, 524 (1993). . In Virtual Network, the bankruptcy court rejected the debtor-in-possession's request to subordinate the Internal Revenue Service’s tax penalty claims, but the district court reversed. In re Virtual Network, 902 F.2d at 1247. . The Supreme Court recently reversed two cases in which bankruptcy courts equitably subordinated federal tax penalties. See United States v. Noland, 517 U.S. 535, 116 S.Ct. 1524, 134 L.Ed.2d 748 (1996), rev’g 48 F.3d 210 (6th Cir.1995); United States v. Reorganized CF & I Fabricators of Utah, Inc., 518 U.S. 213, 116 S.Ct. 2106, 135 L.Ed.2d 506 (1996), rev’g 53 F.3d 1155 (10th Cir.1995). The Supreme Court unanimously held that the bankruptcy court's exercise of its power of equitable subordination must not have the \"inevitable result” of equitably subordinating \"every tax penalty.” Noland, 517 U.S. at 539-43, 116 S.Ct. at 1527-28; see also Reorganized CF & I Fabricators, 518 U.S. at --, 116 S.Ct. at 2115; id. (Thomas, J., concurring in part and dissenting in part). The appellee, suggests that these Supreme Court rulings \"ratify” the approach of Virtual Network, Appellee Br. at 13-14; the appellant contends that the Supreme Court held that \"creditor misconduct was necessary to equitably subordinate the respective creditor claimfs] in each case.” Appellant Reply Br. at 6. Neither party's characterization of the holdings of these cases is accurate: the Supreme Court found it unnecessary to \"decide ... whether a bankruptcy court must always find creditor misconduct before a claim must be equitably subordinated.” Noland, 517 U.S. at 541-43, 116 S.Ct. at 1528. . According to the Court, the existence of such leeway is \"almost as clear” as the proposition that \" 'principles of equitable subordination’ may allow a bankruptcy court to reorder a tax penalty in a given case.” Noland, 517 U.S. at 543, 116 S.Ct. at 1527. . In Noland, the Supreme Court suggests that the sponsors of the Bankruptcy Code incorrectly characterized the existing law with respect to subordination of penalties. See Noland, 517 U.S. at 541-43, 116 S.Ct. at 1528. . The fact that the claims in Envirodyne were unsecured does dispose of the" }, { "docid": "18766189", "title": "", "text": "MEMORANDUM OF DECISION AND ORDER ON OBJECTION OF INTERNAL REVENUE SERVICE TO SUBORDINATION OF PENALTY CLAIM ALAN H.W. SHIFF, Bankruptcy Judge. The Internal Revenue Service objects to confirmation of the debtor’s chapter 13 plan for the reason that it impermissibly subordinates an IRS penalty. BACKGROUND On July 15, 1985, the debtor filed a petition for relief under chapter 13 of the Bankruptcy Code. On January 31, 1986, the IRS filed an amended Proof of Claim, which asserted, inter alia, “C. Unsecured General Claims”, consisting of a “[pjenalty to date of petition on unsecured priority claims ... $5,758.27”, for the failure of the debtor to file income tax returns and pay taxes for the years 1983 and 1984. On June 23, 1986, the debtor filed a First Amended Plan which, relying upon Code §§ 726(a)(4) and 510(c)(1), subordinated the IRS penalty to the other allowed unsecured claims. The debtor has subsequently abandoned subordination under § 726(a)(4), but reasserts the argument that unless the IRS penalty is subordinated under § 510(c)(1), other general creditors will have to share a distribution with the IRS and to that extent, bear the burden of the debtor’s wrongful conduct. The IRS counters with the argument that the legislative history of § 510(c)(1) precludes equitable subordination of a tax claim, and alternatively that, even if applicable, the doctrine of equitable subordination should be limited, as it traditionally is, to those instances where a credi tor is guilty of misconduct. Section 510(c) provides in relevant part that “... after notice and a hearing, the court may (1) under principles of equitable subordination, subordinate for purposes of distribution all or part of an allowed claim to all or part of another allowed claim ...” 11 U.S.C. § 510 (1982). DISCUSSION A. Subordination of Tax Claims The IRS relies upon the following language in the legislative history of § 510(c)(1): The bill provides that any subordination ordered under this provision must be based on principles of equitable subordination. These principles are defined by case law, and have generally indicated that a claim may normally be subordinated only if its holder" }, { "docid": "4363872", "title": "", "text": "on which it now relies. For example, in United States v. Noland, the United States claimed administrative expense treatment for FUTA and FICA taxes, interest, and penalties that accrued af ter a corporate debtor filed for relief under Chapter 11 but before the case was converted to Chapter 7. The Chapter 7 Trustee opposed the IRS as to the penalty and interest. The bankruptcy court found the taxes to be administrative claims but held them categorically subject to equitable subordination under § 510(e). The district court and Sixth Circuit affirmed. The United States Supreme Court held that the IRS’ claims could not be categorically equitably subordinated in derogation of the Congressional scheme of administrative expense priority for penalties relating to priority taxes by § 503(b)(1)(B). As to the administrative claim status of capital gains taxes, the general acceptance of the irrelevancy under the Code of whether or not a Chapter 7 or Chapter 11 debtor is an individual is illustrated by cases where such treatment was afforded without opposition. For example, in a corporate Chapter 11 case in litigation with the IRS, the debtor conceded that the capital gains tax arising from the postpetition sale of debtor’s assets was an administrative expense if it accrued during the administration of the estate. In another corporate Chapter 11 case, the court stated, “it is important to note at the outset that administrative expenses should include taxes which the trustee, and, in Chapter 11 cases, the [corporate] Debtor-in-Possession, incurs in administering the estate, including taxes based upon capital gains from sales of property and taxes on income earned by the estate during the case post-petition.” In the past, in a Chapter 12 case, the IRS has agreed that a claim arising from the debtor’s failure to pay postpetition employment taxes as they became due was an administrative expense subject to § 1222(a)(2). It therefore appears to the Court that the IRS has now changed its position because of the detrimental consequences if § 1222(a)(2), as amended by BAPCPA, applies to the capital gains taxes arising from the sale of Debtors’ farm property. This" }, { "docid": "22404327", "title": "", "text": "Justice Souter delivered the opinion of the Court. The issue in this case is' the scope of a bankruptcy court’s power of equitable subordination under 11 U. S. C. § 510(c). Here, in the absence of any finding of inequitable conduct on the part of the Government, the Bankruptcy Court subordinated the Government’s claim for a postpetition, noncom-pensatory tax penalty, which would normally receive first priority in bankruptcy as an “administrative expense,” §§ 503(b)(1)(C), 507(a)(1). We hold that the bankruptcy court may not equitably subordinate claims on a categorical basis in derogation of Congress’s scheme of priorities. In April 1986, First Truck Lines, Inc., voluntarily filed for relief under Chapter 11 of the Bankruptcy Code, and in the subsequent operation of its business as a debtor-in-possession incurred, but failed to discharge, tax liabilities to the Internal Revenue Service (IRS). First Truck moved to convert the case to a Chapter 7 liquidation in June 1988, and in August 1988 the Bankruptcy Court granted that motion and appointed respondent Thomas R. Noland as trustee. The liquidation of the estate’s assets raised insufficient funds to pay all of the creditors. After the conversion, the IRS filed claims for taxes, interest, and penalties that accrued after the Chapter 11 filing but before the Chapter 7 conversion, and although the parties agreed that the claims for taxes and interest were entitled to priority as administrative expenses, §§ 503(b), 507(a)(1), and 726(a)(1), they disagreed about the priority to be given tax penalties. The Bankruptcy Court determined that the penalties (like the taxes and interest) were administrative expenses under § 503(b) but held them to be subject to equitable subordination under § 510(c). In so doing, the court read that section to provide authority not only to deal with inequitable conduct on the Government’s part, but also to adjust a statutory priority of a category of claims. The Bankruptcy Court accordingly weighed the relative equities that seemed to flow from what it described as “the Code’s preference for compensating actual loss claims,” and subordinated the tax penalty claim to those of the general unsecured creditors. In re" }, { "docid": "4363871", "title": "", "text": "entitled to administrative claim status. Commentators and cases, consistent with the legislative history, construe the phrase “incurred by the estate” in § 503(b)(l)(B)(i) to have reference to the time the “tax accrues and becomes a fixed obligation.” The distinction is whether the tax should be considered to have accrued to the postpetition estate as opposed to the debtor prepetition. Commentators do not identify the IRC provisions on which the IRS relies as relevant to the determination of administrative claim status for taxes accruing postpetition. If administrative claim status were dependent upon the creation of a new taxpaying entity upon the filing of a petition, federal taxes incurred by Chapter 7 and Chapter 11 corporate debtors would be denied administrative claim status, as under the IRC sections cited by the IRS a corporation’s filing of a petition under either Chapter 7 or Chapter 11 does not create a new taxpayer. Yet, it appears to this Court that in the past the IRS, when seeking to benefit from administrative claim priority, has disregarded the IRC Code sections on which it now relies. For example, in United States v. Noland, the United States claimed administrative expense treatment for FUTA and FICA taxes, interest, and penalties that accrued af ter a corporate debtor filed for relief under Chapter 11 but before the case was converted to Chapter 7. The Chapter 7 Trustee opposed the IRS as to the penalty and interest. The bankruptcy court found the taxes to be administrative claims but held them categorically subject to equitable subordination under § 510(e). The district court and Sixth Circuit affirmed. The United States Supreme Court held that the IRS’ claims could not be categorically equitably subordinated in derogation of the Congressional scheme of administrative expense priority for penalties relating to priority taxes by § 503(b)(1)(B). As to the administrative claim status of capital gains taxes, the general acceptance of the irrelevancy under the Code of whether or not a Chapter 7 or Chapter 11 debtor is an individual is illustrated by cases where such treatment was afforded without opposition. For example, in a corporate Chapter" }, { "docid": "22096020", "title": "", "text": "Lines, Inc., 141 B.R. 621, 629 (Bkrtcy. S.D.Ohio 1992). The District Court affirmed. Internal Revenus Service v. Noland, 190 B.R. 827 (S.D.Ohio 1993). After reviewing the legislative history of the 1978 revision to the Bankruptcy Code and several recent appeals cases on equitable subordination of tax penalties, the Sixth Circuit affirmed, as well. In re First Truck Lines, Inc., 48 F.3d 210 (1995). The Sixth Circuit stated that it did “not see the fairness or the justice in permitting the Commissioner’s claim for tax penalties, which are not being assessed because of pecuniary losses to the Internal Revenue Service, to enjoy an equal or higher priority with claims based on the extension of value to the debtor, whether secured or not. Further, assessing tax penalties against the estate of a debtor no longer in existence serves no punitive purpose. Because of the nature of postpetition, nonpeeuniaiy loss tax penalty claims in a Chapter 7 case, we believe such claims are susceptible to subordination. To hold otherwise would be to allow creditors who have supported the business during its attempt to reorganize to be penalized once that effort has failed and there is not enough to go around.” Id., at 218. See also Burden v. United States, 917 F.2d 115, 120 (C.A.3 1990); Schultz Broadway Inn v. United States, 912 F.2d 230, 234 (C.A.8 1990); In re Virtual Network Services Corp., 902 F.2d 1246, 1250 (CA. 7 1990). We granted certiorari to determine the appropriate scope of the power under the Bankruptcy Code to subordinate a tax penalty, 516 U.S. -, 116 S.Ct. 558, 133 L.Ed.2d 458 (1995), and we now reverse. The judge-made doctrine of equitable subordination predates Congress’s revision of the Code in 1978. Relying in part on our earlier cases, see, e.g., Comstock v. Group of Institutional Investors, 335 U.S. 211, 68 S.Ct. 1454, 92 L.Ed. 1911 (1948); Pepper v. Litton, 308 U.S. 295, 60 S.Ct. 238, 84 L.Ed. 281 (1939); Taylor v. Standard Gas & Elec. Co., 306 U.S. 307, 59 S.Ct. 543, 83 L.Ed. 669 (1939), the Fifth Circuit, in its influential opinion in In re" }, { "docid": "22096018", "title": "", "text": "Justice SOUTER delivered the opinion of the Court. The issue in this case is the scope of a bankruptcy court’s power of equitable subordination under 11 U.S.C. § 510(c). Here, in the absence of any finding of inequitable conduct on the part of the Government, the Bankruptcy Court subordinated the Government’s claim for a postpetition, noncompen-satory tax penalty, which would normally receive first priority in bankruptcy as an “administrative expense,” §§ 503(b)(1)(C), 507(a)(1). We hold that the bankruptcy court may not equitably subordinate claims on a categorical basis in derogation of Congress’s scheme of priorities. In April 1986, First Truck Lines, Inc., voluntarily filed for relief under Chapter 11 of the Bankruptcy Code, and in the subsequent operation of its business as a debtor-in-possession incurred, but failed to discharge, tax liabilities to the Internal Revenue Service. First Truck moved to convert the case to a Chapter 7 liquidation in June 1988, and in August 1988 the Bankruptcy Court granted that motion and appointed respondent Thomas R. Noland as trustee. The liquidation of the estate’s assets raised insufficient funds to pay all of the creditors. After the conversion, the IRS filed claims for taxes, interest, and penalties that accrued after the Chapter 11 filing but before the Chapter 7 conversion, and although the parties agreed that the claims for taxes and interest were entitled to priority as administrative expenses, §§ 503(b), 507(a)(1), and 726(a)(1), they disagreed about the priority to be given tax penalties. The Bankruptcy Court determined that the penalties (like the taxes and interest) were administrative ex penses under § 503(b) but held them to be subject to equitable subordination under § 510(c). In so doing, the Court read that section to provide authority not only to deal with inequitable conduct on the Government’s part, but also to adjust a statutory priority of a category of claims. The Bankruptcy Court accordingly weighed the relative equities that seemed to flow from what it described as “the Code’s preference for compensating actual loss claims,” and subordinated the tax penalty claim to those of the general unsecured creditors. In re First Truck" }, { "docid": "22130848", "title": "", "text": "re Virtual Network Servs. Corp., 902 F. 2d 1246 (CA7 1990) (subordinating a claim otherwise entitled to priority under § 507(a)(7) to those of general unsecured creditors), and holding specifically that “section 510(c)(1) does not require a finding of claimant misconduct to subordinate nonpecuniary loss tax penalty claims.” 53 F. 3d, at 1159. The Court of Appeals took note of the Bankruptcy Court’s finding that “[djeclining to subordinate the IRS’s penalty claim would harm innocent creditors rather than punish the debtor” and concluded that “the bankruptcy court correctly addressed the equities in this case.” Ibid. Nothing in the opinion of the Court of Appeals (or, for that matter, in the rulings of the Bankruptcy Court and the District Court) addresses the arguments that the Bankruptcy Court’s result was sustainable without reliance on § 510(c). The court never suggested that either § 1122(a) or the Chapter 7 liquidation provisions were relevant. We thus necessarily review the subordination on the assumption that the Court of Appeals placed no reliance on the possibility that the Bankruptcy Code might permit the subordination on any basis except equitable subordination under § 510(c). So understood, the subordination was error. In United States v. Noland, 517 U. S. 535 (1996), we reversed a judgment said to rely on § 510(c) when the subordination turned on nothing other than the very characteristic that entitled the Government’s claim to priority under §§ 507(a)(1) and 503(b)(1)(C). We held that the subordination fell beyond the scope of a court’s authority under the doctrine of equitable subordination, because categorical subordination at the same level of generality assumed by Congress in establishing relative priorities among creditors was tantamount to a legislative act and therefore was outside the scope of any leeway under § 510(c) for judicial development of the equitable subordination doctrine. See id., at 543. Of course it is true that Noland passed on the subordination from a higher priority class to the residual category of general unsecured creditors at the end of the line, whereas here the subordination was imposed upon a disfavored subgroup within the residual category. But the principle" }, { "docid": "22404328", "title": "", "text": "the estate’s assets raised insufficient funds to pay all of the creditors. After the conversion, the IRS filed claims for taxes, interest, and penalties that accrued after the Chapter 11 filing but before the Chapter 7 conversion, and although the parties agreed that the claims for taxes and interest were entitled to priority as administrative expenses, §§ 503(b), 507(a)(1), and 726(a)(1), they disagreed about the priority to be given tax penalties. The Bankruptcy Court determined that the penalties (like the taxes and interest) were administrative expenses under § 503(b) but held them to be subject to equitable subordination under § 510(c). In so doing, the court read that section to provide authority not only to deal with inequitable conduct on the Government’s part, but also to adjust a statutory priority of a category of claims. The Bankruptcy Court accordingly weighed the relative equities that seemed to flow from what it described as “the Code’s preference for compensating actual loss claims,” and subordinated the tax penalty claim to those of the general unsecured creditors. In re First Truck Lines, Inc., 141 B. R. 621, 629 (SD Ohio 1992). The District Court affirmed. Internal Revenue Service v. Noland, 190 B. R. 827 (SD Ohio 1993). After reviewing the legislative history of the 1978 revision to the Bankruptcy Code and several recent appeals cases on equitable subordination of tax penalties, the Sixth Circuit affirmed, as well. In re First Truck Lines, Inc., 48 F. 3d 210 (1995). The Sixth Circuit stated that it did “not see the fairness or the justice in permitting the Commissioner’s claim for tax penalties, which are not being assessed because of pecuniary losses to the Internal Revenue Service, to enjoy an equal or higher priority with claims based on the extension of value to the debtor, whether secured or not. Further, assessing tax penalties against the estate of a debtor no longer in existence serves no punitive purpose. Because of the nature of postpetition, nonpecuniary loss tax penalty claims in a Chapter 7 case, we believe such claims are susceptible to subordination. To hold otherwise would be to" }, { "docid": "6066023", "title": "", "text": "be allowed administrative expenses ... including any ... penalty ... relating to a [postpetition tax under § 503(b)(1)(B) ].” This directive is mandatory. Accordingly, the postpetition tax penalties are allowed as an administrative expense to the extent requested. B Under 11 U.S.C. § 510(c)(1), the court may apply principles of equitable subordination to “subordinate for purposes of distribution all or part of an allowed claim to all or part of another allowed claim.” Before applying their equitable subordination power, courts have typically required that three elements be established: (1) the claimant must have engaged in some type of inequitable conduct; (2) the misconduct must have resulted in injury to the creditors or conferred an unfair advantage on the claimant; and (3) equitable subordination of the claim must not be inconsistent with the provisions of the Bankruptcy Code. In re Fabricators, Inc., 926 F.2d 1458, 1464-65 (5th Cir.1991) (citations omitted); accord In re Lemco Gypsum, Inc., 911 F.2d 1553, 1556 (11th Cir.1990). Once the three elements have been established, the court is permitted, but not required, to equitably subordinate a claim. Fabricators, 926 F.2d at 1464 n. 9. The Supreme Court recently ruled in United States v. Noland, — U.S. -, 116 S.Ct. 1524, 134 L.Ed.2d 748 (1996), that an administrative tax penalty claim under § 503(b) may not be equitably subordinated under § 510(c)(1) on a categorical basis. In Noland, the bankruptcy court subordinated the tax penalty claims to general unsecured claims in an effort to ensure compensation of claims for actual loss. In re First Truck Lines, Inc., 141 B.R. 621 (Bankr.S.D.Ohio 1993). The district court and the Court of Appeals for the Sixth Circuit affirmed, with the appeals court reasoning that the subordination of tax penalties was appropriate because the tax penalties did not represent actual pecuniary loss and because the penalties served no punitive purpose and thus are “susceptible to subordination” by their very “nature.” In re First Truck Lines, Inc., 48 F.3d 210, 218 (6th Cir.1995). The Supreme Court reversed. Noland, — U.S. at -, 116 S.Ct. at 1528. The Court noted that although Congress intended" }, { "docid": "22096019", "title": "", "text": "raised insufficient funds to pay all of the creditors. After the conversion, the IRS filed claims for taxes, interest, and penalties that accrued after the Chapter 11 filing but before the Chapter 7 conversion, and although the parties agreed that the claims for taxes and interest were entitled to priority as administrative expenses, §§ 503(b), 507(a)(1), and 726(a)(1), they disagreed about the priority to be given tax penalties. The Bankruptcy Court determined that the penalties (like the taxes and interest) were administrative ex penses under § 503(b) but held them to be subject to equitable subordination under § 510(c). In so doing, the Court read that section to provide authority not only to deal with inequitable conduct on the Government’s part, but also to adjust a statutory priority of a category of claims. The Bankruptcy Court accordingly weighed the relative equities that seemed to flow from what it described as “the Code’s preference for compensating actual loss claims,” and subordinated the tax penalty claim to those of the general unsecured creditors. In re First Truck Lines, Inc., 141 B.R. 621, 629 (Bkrtcy. S.D.Ohio 1992). The District Court affirmed. Internal Revenus Service v. Noland, 190 B.R. 827 (S.D.Ohio 1993). After reviewing the legislative history of the 1978 revision to the Bankruptcy Code and several recent appeals cases on equitable subordination of tax penalties, the Sixth Circuit affirmed, as well. In re First Truck Lines, Inc., 48 F.3d 210 (1995). The Sixth Circuit stated that it did “not see the fairness or the justice in permitting the Commissioner’s claim for tax penalties, which are not being assessed because of pecuniary losses to the Internal Revenue Service, to enjoy an equal or higher priority with claims based on the extension of value to the debtor, whether secured or not. Further, assessing tax penalties against the estate of a debtor no longer in existence serves no punitive purpose. Because of the nature of postpetition, nonpeeuniaiy loss tax penalty claims in a Chapter 7 case, we believe such claims are susceptible to subordination. To hold otherwise would be to allow creditors who have supported the" }, { "docid": "6066024", "title": "", "text": "to equitably subordinate a claim. Fabricators, 926 F.2d at 1464 n. 9. The Supreme Court recently ruled in United States v. Noland, — U.S. -, 116 S.Ct. 1524, 134 L.Ed.2d 748 (1996), that an administrative tax penalty claim under § 503(b) may not be equitably subordinated under § 510(c)(1) on a categorical basis. In Noland, the bankruptcy court subordinated the tax penalty claims to general unsecured claims in an effort to ensure compensation of claims for actual loss. In re First Truck Lines, Inc., 141 B.R. 621 (Bankr.S.D.Ohio 1993). The district court and the Court of Appeals for the Sixth Circuit affirmed, with the appeals court reasoning that the subordination of tax penalties was appropriate because the tax penalties did not represent actual pecuniary loss and because the penalties served no punitive purpose and thus are “susceptible to subordination” by their very “nature.” In re First Truck Lines, Inc., 48 F.3d 210, 218 (6th Cir.1995). The Supreme Court reversed. Noland, — U.S. at -, 116 S.Ct. at 1528. The Court noted that although Congress intended to give the courts “some leeway to develop the doctrine” of equitable subordination when § 510(c) was enacted, Congress clearly intended “to start with existing doctrine,” which, as outlined above, requires some showing of inequitable conduct by the creditor in order to subordinate. Id. at -, 116 S.Ct. at 1526-27. Given the potential for tension between existing doctrine and judicial leeway, the Court summarized the issue in Noland as follows: The question is whether that leeway is broad enough to allow subordination at odds with the congressional ordering of priorities by category. Id. at -, 116 S.Ct. at 1527. The Court answered its question in the negative, concluding that Congress did not intend to authorize the courts “to conclude on a general categorical level that penalties should not be treated as administrative expenses to be paid first_” Id. Accordingly, although the Court explicitly did not hold that “a bankruptcy court must always find creditor misconduct before a claim may be equitably subordinated,” the Court did hold “that (in the absence of a need to reconcile" }, { "docid": "17465667", "title": "", "text": "OPINION OF THE COURT A. LEON HIGGINBOTHAM, Jr., Chief Judge. This is a Chapter 13 bankruptcy case. The Internal Revenue Service (“IRS”) appeals from the judgment of the District Court for the Eastern District of Pennsylvania, which affirmed the Bankruptcy Court’s ruling that a claim for nonpecuniary loss tax penalties may be subordinated to the claims of other general unsecured creditors, absent a showing of misconduct by the government. 109 B.R. 107 (1989). Because the district court automatically subordinated the tax penalties without weighing the equities of the various claims, we will reverse and remand. I. Wilfred H. Burden, debtor and appellee, was assessed federal income and employment taxes, related penalties, and interest for various tax periods from 1980 to 1985. When the debtor failed to pay all of the amounts assessed against him, the IRS filed four separate notices of tax lien. On June 30, 1987, the debtor filed for protection under Chapter 13 of the Bankruptcy Code. In response, on July 28, 1987, the IRS timely filed a proof of claim in the amount of $57,930.17, of which $51,-903.32 was subsequently secured. Of the secured amount $10,655.64 was assessed for penalties and $18,862.68 for interest. The remaining unsecured portion of the claim includes $1,384.67 in penalties and $3,510.19 in taxes. The issue before us on appeal concerns the penalty portion (secured and unsecured) of the total liabilities, which amounts to $12,040.31. On March 30, 1989, the debtor filed a timely objection to the IRS’ proof of claim. The parties were able to resolve all of the issues in contention raised by the debtor’s objection except one, namely, that in its proof of claim, the IRS failed to subordinate the pre-petition penalties (totalling $12,040.31) to the claims of other general unsecured creditors. The parties did agree that only $52,000 in assets were available to compensate the secured creditors, some having interests prior to those of the IRS. In response to the debtor’s objection, on August 1, 1989, the bankruptcy court entered an order that modified the IRS’ proof of claim. Pursuant to § 510(c) of the Bankruptcy Code, the" }, { "docid": "19119419", "title": "", "text": "ORDER DeMASCIO, District Judge. This case is before the court on plaintiffs appeal of the Bankruptcy Court’s decision not to subordinate the United States’ nonpecuniary tax penalties. We have jurisdiction to hear this bankruptcy appeal pursuant to 28 U.S.C. § 158(a). Plaintiff, debtor, filed a complaint for equitable subordination seeking to subordinate the government’s claim for pre and post-petition tax penalties and interest to the claims of its general unsecured creditors. The Bankruptcy Court initially allowed plaintiffs equitable subordination claim pursuant to In Re First Truck Lines, Inc., 48 F.3d 210 (6th Cir.1995). Defendant appealed this decision to this court. While defendant’s appeal was pending the United States Supreme Court in United States v. Noland, 517 U.S. 535, 116 S.Ct. 1524, 134 L.Ed.2d 748 (1996), reversed the Sixth Circuit decision in In Re First Truck Lines Inc. We then remanded this case back to the Bankruptcy Court in light of the Court’s decision in Noland to determine the appropriateness of its prior ruling. On remand, the bankruptcy court held that: (1) a finding of creditor misconduct is not necessary for equitable subordination; and (2) that the inequities of disparate treatment between creditors is not to be considered under equitable subordination. The bankruptcy court granted defendant’s motion for summary judgment. We must determine whether the Bankruptcy Judge properly applied the Supreme Court’s ruling in Noland. The issue before the Supreme Court in Noland was whether the government’s claim for a post-petition, noncompensatory tax penalty, absent misconduct on the part of the government, shoidd be subject to equitable subordination. The Court in Noland held that “the bankruptcy court may not equitably subordinate claims on a categorical basis in derogation of Congress’s scheme of priorities.” Id. at 535, 116 S.Ct. at 1525. Prior to reaching the Supreme Court, the Bankruptcy Court in Noland held that non-pecuniary penalties were administrative expenses, however it determined that they were subject to equitable subordination pursuant to 11 U.S.C. § 510(c). The Bankruptcy Court relied upon § 510(c) which provides that “the court may ... under principles of equitable subordination, subordinate for purposes of distribution all or part" } ]

[ { "docid": "22094163", "title": "", "text": "repleading. 1. The trial judge and the defendants reason as follows: (a) The 1933 and 1934 Acts must be read together as parts of a single statutory scheme, especially as the statute which enacted the 1934 Act also amended the 1933 Act. (b) The common stockholders have no claim under § 11 of the 1933 Act, since they purchased no securities which were the subject of the prospectus and registration statement, (c) Congress imposed restrictions on a suit under that section e. g. a short statute of limitations, and discretion in the court to require security in some circumstances. (d) It cannot reasonably be supposed that Congress intended that the common stockholders, under the 1934 Act, could maintain a suit for the very conduct not actionable at their suit under § 11 of the 1933 Act. (e) Especially is this true of a suit under Section 10(b) of the 1934 Act, for that section does not impose restrictions similar to those imposed by § 11 of the 1933 Act. (f) Therefore the common stockholders may not allege, as part of their claim, any misleading statements in or omissions from the prospectus or registration statement. We do not agree with items (d), (e) and (f) of this argument. A suit under § 11 of the 1933 Act requires no proof of fraud or deceit, and such a suit may be maintained only by one who comes within a narrow class of persons i. e. those who purchase securities that áre the direct subject of the prospectus and registration statement (here the purchasers of preferred stock). But proof of fraud is required in suits under § 10(b) of the 1934 Act and Rule X-10 B-5, which was validly promulgated by the S. E. C. pursuant to that section. Congress reasonably, and without inconsistency, allowed suits of that sort which (1) are free of the restrictions applicable to a suit under § 11 of the 1933 Act and (2) which are not confined to those persons who may properly sue under that section but which include all who are the victims of the" } ]

[ { "docid": "758839", "title": "", "text": "or otherwise misleading registration statement. Courts have universally held that “in order to have a valid § 11 cause of action, [the plaintiff] must plead and prove that his stock was issued pursuant to the particular registration statement alleged to be defective.” Lorber v. Beebe, 407 F.Supp. 279, 286 (S.D.N.Y.1975); see also Barnes v. Osofsky, 373 F.2d 269, 271-73 (2d Cir.1967); McFarland v. Memorex Corp., 493 F.Supp. 631, 641-42 (N.D.Cal.1980), reconsideration granted, 581 F.Supp. 878 (1984). This requirement has been referred to as the “new stock,” see McFarland, 493 F.Supp. at 642, or “tracing,” see Kirkwood v. Taylor, 590 F.Supp. 1375, 1377-78 (D.Minn. 1984), requirement. At issue in this motion is whether defendants are entitled to judgment as a matter of law because Abbey cannot fulfill the tracing requirement described above. On August 23,1983, defendant Computer Memories, Inc. (“CMI”) made a public offering of approximately 2,000,000 shares of common stock pursuant to a registration statement and prospectus also dated August 23, 1983 (“the offering”). It is the August 23, 1983 registration statement (“the registration statement”) upon which plaintiff bases his section 11 claim. Abbey purchased a total of 10,000 shares of CMI stock. One thousand of these shares were purchased before the August 23, 1983 offering and therefore clearly cannot form a basis for a damages claim under section 11. See Barnes v. Osofsky, 373 F.2d 269, 272-73 (2d Cir.1967). The remaining 9,000 shares were purchased on August 29, 1983, approximately one week after the effective date of the registration statement. These shares were not purchased pursuant to the offering or from any of the participants in the offering, but were purchased in the open market at a price higher than the offering’s price. Abbey purchased his shares through Fidelity Brokerage Services, Inc. (“Fidelity”), a stock broker. However, Fidelity did not actually execute the stock purchase. Instead, Fidelity placed a purchase order through its subsidiary, National Financial Services Corporation, Inc., with the Pershing division of Donaldson Lufkin & Jerette Securities Corporation (“Pershing”). Pershing then executed two purchases of CMI stock, totaling 9,000 shares, from Mayer & Schweitzer, Inc., a stock" }, { "docid": "9696428", "title": "", "text": "security is virtually absolute, even for innocent misstatements.”) (citing Feit v. Leasco Data Processing Equip. Corp., 332 F.Supp. 544, 575 (E.D.N.Y.1971) and 15 U.S.C. § 77k(b)); Ernst & Ernst v. Hochfelder, 425 U.S. 185, 208, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976) (distinguishing the negligence standard under § 11 from the intentional conduct required under § 10(b)). See also In re Global Crossing, Ltd. Sec. Litig., 313 F.Supp.2d 189, 195 (S.D.N.Y. 2003) (“No intent to defraud need be alleged under section 11.”). Courts have construed § 11 narrowly, holding that only plaintiffs who can trace their shares to the particular false or misleading registration statement may benefit from the strict liability imposed by § 11. See, e.g., Lee v. Ernst & Young LLP, 294 F.3d 969, 976-977 (8th Cir.2002) (a cause of action under § 11 “exists for any person who purchased a security that was originally registered under the allegedly defective registration statement-so long as the security was indeed issued under that registration statement and not another.”); Barnes v. Osofsky, 373. F.2d 269, 272 (2d Cir.1967) (reasoning that § 11 was meant to provide a remedy only for those who purchased shares pursuant to a particular registration statement, whereas other provisions which contain some form of a scienter requirement are not limited to newly registered securities); In re Global Crossing, 313 F.Supp.2d at 207-208 (holding that only plaintiffs who purchased shares under the misleading registration statement had standing under § 11, noting that “[t]hose who purchased in the open market shares that were properly registered in an earlier offering are relegated to the securities fraud remedies that include [scienter and reliance] requirements”); Kirkwood v. Taylor, 590 F.Supp. 1375, 1378 (D.Minn.1984) (noting that the “[s]trict application of the tracing requirement. . .is consistent with the statutory scheme”). Courts have recognized, however, that because shares are often traded and purchased electronically by brokers, it may be difficult to trace purchased shares back to the original registration statements. This is particularly true when the company has a number of outstanding shares already issued, rather than a finite universe of shares issued pursuant" }, { "docid": "8839955", "title": "", "text": "deems it proper to resolve those issues prior to holding an evidentiary hearing on any of the remaining issues raised by Raffenspergers’ pre-hearing brief. I. CLASS COMPOSITION Essentially, the parties dispute who among Firstmark noteholders has standing to sue for a violation of § 11 of the Securities Act of 1933 (the “Act”). As Raffensperger has pointed out, only those noteholders with standing may properly be considered members of the class represented by the named plaintiffs. Section 11 standing is limited to those persons who purchased securities that are the “direct subject” of the allegedly defective registration statement. Wolfson v. Solomon, 54 F.R.D. 584, 587 (S.D.N.Y.1972); Barnes v. Osofsky, 373 F.2d 269, 273 (2d Cir.1967) (an action under § 11 may be maintained only by one who comes within a narrow scope of persons—those who purchased securities that are the direct subject of the prospectus or registration statement). If securities of an identical kind (or of the same nature as those registered) were already being traded on the open market, purchasers of those securities must seek redress through some other means, and not through § 11. Wolfson, 54 F.R.D. at 588 (allowing class action consisting of two classes—the § 11 class and the class seeking relief through other securities statute). Such claimants may not avail themselves of the “relatively less stringent standards for recovery under Section 11.” Id.; see also In re LILCO Securities Litigation, 111 F.R.D. 663, 670 (E.D.N.Y.1986) (certifying eight different subclasses of plaintiffs depending on type of security and which registration statement it was issued under). Those standards represent a deliberately lower hurdle over which a legitimate plaintiff must proceed to recovery. Section 11 remedies are designed to “assure compliance with the disclosure provisions of the Act by imposing a stringent standard of liability on the parties who play a direct role in a registered offering.” Herman & MacLean v. Huddleston, 459 U.S. 375, 381-82, 103 S.Ct. 683, 687, 74 L.Ed.2d 548 (1983); Barnes, 373 F.2d at 272. Instead of focusing on compensating purchasers for their losses, the primary concern of § 11 is to deter those" }, { "docid": "3165284", "title": "", "text": "and individual defendant Seaforth M. Lyle for alleged violations of section 10(b) of the Securities Exchange Act of 1934 (the “Exchange Act”), 15 U.S.C. § 783(b) (1982), and Rule 10b-5, 17 C.F.R. § 240.10b~5 (1983), promulgated thereunder. These latter two plaintiffs seek recovery on behalf of a class consisting of all persons who purchased shares of CDI common stock between July 8, 1983, and August 17, 1983, whether such persons purchased their shares from the underwriters who participated in the public offering, or in the open market. I. Section 11 Claims Becker moves to dismiss plaintiff Hoffman’s section 11 claim, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Becker argues that Hoffman has not alleged that he purchased the CDI stock pursuant to the July 8 public offering and that in the absence of such an averment, Hoffman has failed to state a claim under section 11. The Court agrees with the defendants for the following reasons. Section 11(a) provides that: In case any part of the registration statement, when such part became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, any person acquiring such security ... may, either at law or in equity, in any court of competent jurisdiction, sue [five categories of people named herein]. 15 U.S.C. § 77k (1982) (emphasis added). The phrase “any person acquiring such security,” has been interpreted as limiting recovery to purchasers of shares issued and sold pursuant to the registration statement claimed to be defective. Barnes v. Osofsky, 373 F.2d 269 (2d Cir.1967); Lorber v. Beebe, 407 F.Supp. 279, 285-86 (S.D.N.Y.1975); Colonial Realty Corp. v. Brunswick Corp., 257 F.Supp. 875 (S.D.N.Y.1966). Thus, persons who buy shares that are the direct subject of the defective registration statement, whether bought in the process of distribution or in the open market, can bring a suit under section 11. Barnes v. Osofsky, supra, 373 F.2d 269; Lorber v. Beebe, supra, 407 F.Supp. at 286-87; Colonial Realty Corp. v. Brunswick Corp., supra," }, { "docid": "16252209", "title": "", "text": "plaintiffs purchased securities during the class period (CompLIffl 9, 12); they also cite the Lead Plaintiffs’ certification (referenced in the complaint), which shows that the Lead Plaintiffs purchased substantial numbers of GC shares within weeks of the Secondary Offering. (P. Mem. at 54 & n. 26.) But they cite no portion of the voluminous complaint, or any document referenced in it, that establishes that any named plaintiff can trace his, her or its shares to that offering. The Second Circuit has not directly addressed whether plaintiffs asserting a section 11 claim must explicitly plead that they purchased shares traceable to the flawed registration statement. In Barnes, the issue was simply whether class members participating in a settlement fund needed to prove that their shares were traceable; in DeMaria, since there was only one offering of the relevant securities, the issue of tracing did not arise. Nevertheless, those district courts that have considered the question have required plaintiffs to plead as well as prove that their shares were issued pursuant to the misleading registration statement. See Ciresi v. Citicorp., 782 F.Supp. 819, 823 (S.D.N.Y.1991) (dismissing class action complaint where there had been more than one offering, and plaintiffs failed to allege they purchased shares issued pursuant to allegedly false registration statement); Lorber v. Beebe, 407 F.Supp. 279, 286-87 (S.D.N.Y.1975) (same); Guenther v. Cooper Life Sciences, Inc., 759 F.Supp. 1437, 1440-41 (N.D.Cal.1990) (same); McFarland v. Memorex Corp., 493 F.Supp. 631, 641-42 (N.D.Cal.1980) (same); Lilley v. Charren, 936 F.Supp. 708, 718 (N.D.Cal.1996) (same). These decisions appear correct. It is clear that plaintiffs bear the burden of proving securities are traceable. Barnes, 373 F.2d at 273 n. 2; Lorber, 407 F.Supp. at 286; Kirkwood v. Taylor, 590 F.Supp. 1375, 1382-83 (D.Minn.1984) (on motion for summary judgment). Moreover, the tracing requirement is essential to the cause of action. Stocks are not fungible under section 11. Barnes, 373 F.2d at 272-73 (2d Cir.1967). Only those who purchase securities that are subject to allegedly false registration statement, and not those who buy identical stocks already being traded, can sue under section 11. Id.; Wolfson v. Solomon, 54" }, { "docid": "3471502", "title": "", "text": "issued pursuant to the registration statement;’ ” read broadly, it would extend to the person “ ‘acquiring a security of the same nature as that issued pursuant to the registration statement.’ ” Id. In the end, the court gave the provision the narrower interpretation, thus limiting Section 11 to purchasers of registered shares. Contrary to the position asserted by defendants here, however, the court did not limit recovery to direct purchasers, i.e., immediate purchasers from the party or parties sought to be held liable. See Kramer v. Scientific Control Corp., 365 F.Supp. 780, 789-90 (E.D.Penn.1973) (“Section 11 of the 1933 Act does not require that the securities be acquired from the original offering”). In fact, the Barnes court allowed recovery by other than direct purchasers, as long as their shares could be traced back to the registration statement. To recover under Section 11 a party need only show that he purchased securities that are the direct subject of the prospectus and registration statement. See Unicorn Field, Inc. v. Cannon Group, Incorporated, 60 F.R.D. 217, 226 (S.D.N.Y.1973) (“it is now well settled in this Circuit that § 11 of the Securities Act ... permits recovery only by purchasers of the shares covered by the defective registration statement or by those who can trace their purchases directly to such shares”) (emphasis added); Wolfson v. Solomon, 54 F.R.D. 584, 588 (S.D.N.Y.1972) (“it is now clear that only persons who purchased securities that are the direct subject of the prospectus and registration statement may sue under Section 11”) (emphasis added). Thus, the court concludes that Section 11 does not prevent Krumbein from representing a class asserting claims under that statute. C. Section 12(2) of the Securities Act of 1933 Plaintiffs maintain that defendants are liable under Section 12(2) of the Securities Act of 1933 because of false and fraudulent statements which induced plaintiffs to purchase Delta stock. A purchaser proceeding under Section 12(2) must show, in addition to the jurisdictional use of an instrumentality of interstate commerce, the violation of Section 12(2)’s antifraud provisions by a “seller.” The issue at this point, and the" }, { "docid": "16252210", "title": "", "text": "Ciresi v. Citicorp., 782 F.Supp. 819, 823 (S.D.N.Y.1991) (dismissing class action complaint where there had been more than one offering, and plaintiffs failed to allege they purchased shares issued pursuant to allegedly false registration statement); Lorber v. Beebe, 407 F.Supp. 279, 286-87 (S.D.N.Y.1975) (same); Guenther v. Cooper Life Sciences, Inc., 759 F.Supp. 1437, 1440-41 (N.D.Cal.1990) (same); McFarland v. Memorex Corp., 493 F.Supp. 631, 641-42 (N.D.Cal.1980) (same); Lilley v. Charren, 936 F.Supp. 708, 718 (N.D.Cal.1996) (same). These decisions appear correct. It is clear that plaintiffs bear the burden of proving securities are traceable. Barnes, 373 F.2d at 273 n. 2; Lorber, 407 F.Supp. at 286; Kirkwood v. Taylor, 590 F.Supp. 1375, 1382-83 (D.Minn.1984) (on motion for summary judgment). Moreover, the tracing requirement is essential to the cause of action. Stocks are not fungible under section 11. Barnes, 373 F.2d at 272-73 (2d Cir.1967). Only those who purchase securities that are subject to allegedly false registration statement, and not those who buy identical stocks already being traded, can sue under section 11. Id.; Wolfson v. Solomon, 54 F.R.D. 584, 588 (S.D.N.Y.1972); Guenther, 759 F.Supp. at 1440-41; see also DeMaria, 318 F.3d at 176 (citing Barnes and Lee v. Ernst & Young, 294 F.3d at 976-77). The cause of action inheres in the faulty registration statement that put the shares in question on the market; it is on the basis of the flaw in the underlying registration that section 11 dispenses with the require ments of scienter, and, for those who purchase soon enough after the registration statement, reliance. Those who purchased in the open market shares that were properly registered in an earlier offering are relegated to the securities fraud remedies that include such requirements. Thus, plaintiffs who purchased securities not issued pursuant to the misleading registration statement lack standing as surely as the purchasers of other securities entirely. As Judge Friendly noted more than 35 years ago, modern market conditions may have made the tracing requirement obsolete. See Barnes, 373 F.2d at 273. In a world in which the “shares” purchased by a stockholder might be merely electronic entries in a" }, { "docid": "10554988", "title": "", "text": "no dispute here, however, that § 11 liability extends beyond its specifically enumerated potential defendants, or that liability is limited to public offerings. Therefore, as with Justice Ginsberg’s proposition, this statement is consistent with retention of the tracing requirement for standing to sue under § 11. Defendants also rely on legislative history recited in Gustafson to narrow § ll’s sweep. According to the House Report, “the [Securities Act] affects only new offerings of securities ____ It does not affect the ordinary redistribution of securities unless such redistribution takes on the characteristics of a new offering.” House Report at 5. This is the same House Report, however, which stated that § 11 remedies are available “regardless of whether [plaintiffs] bought their securities at the time of the original offer or at some later date,” id. It was this later statement upon which the Barnes court concluded that liability extends to “open market purchasers of the registered shares.” Barnes, 373 F.2d at 273. Therefore, the litigation history is at best ambiguous about whether purchasers in the aftermarket who can trace their securities back to the defective registration statement have standing. Finally, the statutory text supports the position that standing to sue is not limited to purchases in the public offering, but is open to purchases in the secondary market. Initially, the language of § 11 is broad: “ [A]ny person acquiring such security ... may ... sue.” Furthermore, § 11(a) states that if a “person acquired the security after the issuer has made generally available to its security holders an earnings statement covering a period of at least twelve months beginning after the effective date of the registration statement,” then the right of recovery is conditioned upon proof that the person actually relied on the false statement in the registration statement. Congress therefore explicitly contemplated that a plaintiff could purchase a registered security well after the IPO and still have a remedy under § 11. Section 11(e) farther supports this interpretation of the statute. It provides that the plaintiff may recover: such damages as shall represent the difference between the amount paid" }, { "docid": "5094003", "title": "", "text": "to the statement in such registration statement, report, or valuation, which purports to have been prepared or certified by him; (5) every underwriter with respect to such security. A threshold issue is whether plaintiff has standing to sue under section 11. Plaintiff has not alleged that he purchased any shares pursuant to the registration statement and prospectus. He has alleged only that he purchased 300 shares of Memorex stock on September 6, 1978, and an additional 500 shares on September 8, 1978. This fact alone does not compel the inference that his shares were among the newly issued securities. The courts have consistently held that section 11 remedies cover only shares newly issued under the registration statement. In Barnes v. Osofsky, 373 F.2d 269 (2d Cir. 1967), Judge Friendly cogently analyzed the legislative history, and concluded: Without depreciating the force of appellants’ criticisms that this construction gives § 11 a rather accidental impact as between one open-market purchaser of a stock already being traded and another, we are unpersuaded that, by departing from the more natural meaning of the words, a court could come up with anything better. What appellants’ argument does suggest is that the time may have come for Congress to reexamine these two remarkable pioneering statutes in the light of thirty years’ experience, with a view to simplifying and coordinating their different and often overlapping remedies. Id. at 273 (emphasis added). See also Lorber v. Beebe, 407 F.Supp. 279, 286 (S.D.N.Y.1975) (“[A] plaintiff, in order to have a valid § 11 cause of action, must plead and prove that his stock was issued pursuant to the particular registration statement alleged to be defective.”); Unicorn Field, Inc. v. Cannon Group, Inc., 60 F.R.D. 217, 226 (S.D.N.Y.1973). This Court concurs fully with Judge Friendly’s conclusions. If plaintiff is to state a cause of action under section 11, he must allege that he purchased new stock. Alleging or proving that the stock, purchased in the open market, might have been issued pursuant to the registration statement does not meet this requirement. See Lorber v. Beebe, supra, 407 F.Supp. at 287" }, { "docid": "3165285", "title": "", "text": "became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, any person acquiring such security ... may, either at law or in equity, in any court of competent jurisdiction, sue [five categories of people named herein]. 15 U.S.C. § 77k (1982) (emphasis added). The phrase “any person acquiring such security,” has been interpreted as limiting recovery to purchasers of shares issued and sold pursuant to the registration statement claimed to be defective. Barnes v. Osofsky, 373 F.2d 269 (2d Cir.1967); Lorber v. Beebe, 407 F.Supp. 279, 285-86 (S.D.N.Y.1975); Colonial Realty Corp. v. Brunswick Corp., 257 F.Supp. 875 (S.D.N.Y.1966). Thus, persons who buy shares that are the direct subject of the defective registration statement, whether bought in the process of distribution or in the open market, can bring a suit under section 11. Barnes v. Osofsky, supra, 373 F.2d 269; Lorber v. Beebe, supra, 407 F.Supp. at 286-87; Colonial Realty Corp. v. Brunswick Corp., supra, 257 F.Supp. 875; L. Loss, Fundamentals of Securities Regulation 1030 (1983). “It follows that a plaintiff in order to have a valid § 11 cause of action, must plead and prove that his stock was issued pursuant to the particular registration statement alleged to be defective____ [I]f he fails to do this, his § 11 claim must be dismissed.” Lorber v. Beebe, supra, 407 F.Supp. at 286 (citation omitted). A review of the Klein complaint shows that Hoffman has not pleaded that the stock he purchased was issued pursuant to the allegedly defective prospectus. Hoffman states that on or about August 1, 1983, he purchased 3000 shares of CDI stock from Becker. In the plaintiffs’ papers, it is stated that Hoffman is unable at this point to state whether his CDI shares were among those issued on the July 8, 1983, offering. The reason given for this is that discovery, which would provide the answer, has been stayed pending decision on these motions. However, without an allegation that the shares were purchased pursuant to the" }, { "docid": "10554981", "title": "", "text": "who could establish that they purchased securities issued under the allegedly defective registration statement, or whether all holders of the issuer’s securities purchased after the issuance of the allegedly incomplete prospectus, but who could not so trace their purchases, were entitled to recover. Id. at 271. Focusing on the statutory phrase “any person acquiring such security,” the court held that the statutory scheme and legislative history indicated that the term “such security” referred to the more narrow class of potential plaintiffs who could “trace” their securities to the challenged registration. The court reasoned that the incentives for full and accurate disclosure through registration were directed at protecting purchasers of the newly issued shares, rather than the shares already outstanding. Moreover, the limitation of liability contained in sections 11(g) and 11(e), which, among other things, limit liability to price at which the security was offered to the public, indicated that recovery by those purchasing the new shares would be unreasonably diluted if holders of all outstanding shares could recover. Id. at 272. Finally, the court reviewed the legislative history of the Security Act’s civil remedies. The House Report stated that § 11 remedies were accorded to purchasers “regardless of whether they bought their securities at the time of the original offer or at some later date,” H.R.Rep. No. 85, 73rd Cong. 1st Sess. 5 (1933) (hereinafter the' House Report). The Barnes court reasoned that this extended liability to “open market purchasers of the registered shares.” Id. at 273. Until recently, courts in this Circuit have consistently applied the Barnes tracing requirement to narrow the class of potential plaintiffs. For example, in Wolfson v. Solomon, 54 F.R.D. 584 (S.D.N.Y.1972), the court certified a plaintiff class consisting of those who purchased securities from the time the registration was effective until approximately six months thereafter, whether or not the securities were purchased on the open market, as long as the plaintiff “purchased [the issuer’s] securities that are the direct subject of the registration statement and prospectus.” Id. at 592-93. See also In re AES Corp. Sec. Litig., 825 F.Supp. 578, 592 (S.D.N.Y.1993) (claims under" }, { "docid": "16956413", "title": "", "text": "amount recoverable under this section exceed the price at which the security was offered to the public,” and the provision of § 11(e) whereby, with qualifications not here material, an underwriter’s liability shall not exceed “the total price at which the securities underwritten by him and distributed to the public were offered to the public,” point in the direction of limiting § 11 to purchasers of the registered shares, since otherwise their recovery would be greatly diluted when the new issue was small in relation to the trading in previously outstanding shares. Appellants’ contention also seems to run somewhat contrary to the legislative history. Both the House and Senate versions of the present § 11, in identical language, established a conclusive presumption of reliance upon the registration statement by “every person acquiring any securities specified in such statements and offered to the public.” Section 9, S. 875; Section 9, H.R. 4314, 73d Cong., 1st Sess. (1933). Both bills then continued, “In case any such statement shall be false in any material respect, any persons acquiring any securities to which such statement relates, either from the original issuer or any other person” shall have a cause of action against certain specified persons. The bills differed as to the class of people liable and their defenses. As part of a report in which § 11 in its present form was endorsed, the Managers on the part of the House noted that the only changes in § 11 were as to who was liable and their defenses. H.R.Rep. No. 152, p. 26, 73d Cong., 1st Sess. (1933). As against this appellants seek to draw some solace from a statement in H.R.Rep. No. 85 that the remedies of § 11 were accorded to purchasers “regardless of whether they bought their securities at the time of the original offer or at some later date” and that this was within the power of Congress “to accord a remedy to all purchasers who may reasonably be affected by any statements in the registration statement.” But this can be read to relate only to the extension of liability" }, { "docid": "10554980", "title": "", "text": "and that none of the Plaintiffs in this action bought in the IPO. Section 11 provides that: In case any part of the registration statement, when such part became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, any person acquiring such security (unless it is proved that at the time of such acquisition he knew of such untruth or omission) may ... sue [five categories of defendants named therein]. See 15 U.S.C. § 77k(a) (1994) (emphasis added). It has been the law in this Circuit for over thirty years that a plaintiff who can trace their securities to a registered offering has standing to sue under of the Securities Act for a defect in that registration. In Barnes v. Osofsky, 373 F.2d 269 (2d Cir.1967) (Friendly, J.), the Second Circuit addressed the issue of whether a class action settlement agreement in a case alleging § 11 liability could limit benefits only to persons who could establish that they purchased securities issued under the allegedly defective registration statement, or whether all holders of the issuer’s securities purchased after the issuance of the allegedly incomplete prospectus, but who could not so trace their purchases, were entitled to recover. Id. at 271. Focusing on the statutory phrase “any person acquiring such security,” the court held that the statutory scheme and legislative history indicated that the term “such security” referred to the more narrow class of potential plaintiffs who could “trace” their securities to the challenged registration. The court reasoned that the incentives for full and accurate disclosure through registration were directed at protecting purchasers of the newly issued shares, rather than the shares already outstanding. Moreover, the limitation of liability contained in sections 11(g) and 11(e), which, among other things, limit liability to price at which the security was offered to the public, indicated that recovery by those purchasing the new shares would be unreasonably diluted if holders of all outstanding shares could recover. Id. at 272. Finally, the court reviewed" }, { "docid": "17294744", "title": "", "text": "cert. denied, 508 U.S. 974, 113 S.Ct. 2965, 125 L.Ed.2d 665 (1993) (holding § 11 extends to any person acquiring a security that was registered in a public offering via a materially misleading statement, as long as that person brings his or her claim within the applicable statute of limitations). Other provisions of § 11 also compel the conclusion that it applies to aftermarket purchasers. The section was amended in 1934 to add the requirement that if a purchaser of a security “acquired the security after the issuer had made generally available to its security holders an earning statement covering a period of at least twelve months beginning after the effective date of the registration statement,” the right of recovery shall be conditioned on proof that he relied upon the untrue statement or omission in the registration statement. 15 U.S.C. § 77k(a). By requiring those who purchase registered stock after the publication of the twelvemonth earning statement to prove reliance, the statute contemplates relief for those who purchase shares after the public offering. Similarly, the provisions in § 11 regarding the calculation of damages envisage relief for aftermarket purchasers. Section 11(e) provides a purchaser of securities issued in connection with a false registration statement may sue to recover “such damages as shall represent the difference between the amount paid [by plaintiff] for the security (not exceeding the price at which the security was offered to the public),” and the value of the security at the time that the suit was brought or the price at which the security was disposed of, 15 U.S.C. § 77k(e). Section 11(g) further states: “In no ease shall the amount recoverable under this section exceed the price at which the security was offered to the public.” 15 U.S.C. § 77k(g). I find, notwithstanding Gustafson, that § 11 extends not only to persons who buy “in the Offering,” but to all persons who acquired stock traceable to a public offering conducted via a misleading registration statement. See PPM America, Inc. v. Marriott Corp., 820 F.Supp. 970, 975 (D.Md.1993) (“any person” acquiring a registered security may state" }, { "docid": "22157426", "title": "", "text": "states, “In no case shall the amount recoverable under this section exceed the price at which the security was offered to the public.” 15 U.S.C. § 77k(g). “This express limitation on the recoverable damages would be redundant if only those who had purchased in the offering (¿a, at the initial offering price) could recover, because their potential damages would be limited in any event to the price they had paid in the offering.” Demaria, 318 F.3d at 177; see also Lee, 294 F.3d at 977; Joseph, 223 F.3d at 1159; Hertzberg, 191 F.3d at 1080. Third, the broad reading of § 11 is consistent with the Supreme Court’s concern in Gustafson that the Securities Act remain anchored to its original purpose of regulating only public offerings. See Demaria, 318 F.3d at 177 (“[T]he focus of the [§ 11] claim remains on deceptions occurring during the public offering.”). Whereas the Gustafson plaintiffs sought to invoke § 12 for a private offering, § 11 only applies to public registered offerings. Moreover, in contrast to § 12(a)(2), a § 11 plaintiff is required to prove reliance on the alleged misstatements or omissions in the registration statement if the issuer has made available an earnings statement covering one year after the issuance. 15 U.S.C. § 77k(a). Thus, the Supreme Court’s concern about extensive liability far beyond the initial offering is not implicated. In fact, by giving would-be defendants more incentive for compliance, the broader interpretation of § 11, more so than the limited reading, better effectuates the statutory purpose of regulating public offerings. See id. Finally, this interpretation comports with longstanding pre-Gustafson jurisprudence holding that anyoné who can “trace” his shares to the challenged registration statement (ie., not merely the initial purchasers) may sue under § 11. See, e.g., Shapiro v. UJB Fin. Corp., 964 F.2d 272, 286 (3d Cir.1992); Barnes v. Osofsky, 373 F.2d 269 (2d Cir.1967); Cf. Columbia Gen. Inv. Corp. v. SEC, 265 F.2d 559, 562 (5th Cir.1959) (“Persons other than those who purchase the new stock under the Registration statement may be affected in point of fact and may, under" }, { "docid": "3165307", "title": "", "text": "CDI as a defendant. However, because CDI has filed for Chapter 11 bankruptcy, prosecution of this action against CDI has been stayed pursuant to section 362 of the Bankruptcy Code, 11 U.S.C. § 362 (1982). . The plaintiffs do not explain why this latter date was chosen. . As indicated in oral argument, the individual defendants join Becker in making this motion. . None of the section 11 claims of the other plaintiffs is challenged by the defendants. . “The open-market purchaser ... must be able to trace his particular securities to the registration statement when it covered additional securities of an outstanding class.” L. Loss, Fundamentals of Securities Regulation 1038 n. 64 (1983); see also Barnes v. Osofsky, 373 F.2d 269, 273 (2d Cir.1967). If the purchaser bought identical securities already being traded on the open market, he must look elsewhere for relief. Lorber v. Beebe, 407 F.Supp. 279, 286 (S.D.N.Y.1975); Wolfson v. Solomon, 54 F.R.D. 584, 588 (S.D.N.Y.1972). . Throughout this opinion, the Court refers to Klein and Hoffman’s second amended complaint as \"the Klein complaint.” With respect to the Davella action, the Court draws solely from Davella's amended complaint. . In the same complaint, Klein states that on or about July 8, 1983, he purchased 500 shares of CDI stock pursuant to the public offering. . Because Hoffman does allege that he purchased his shares from Becker, Becker does not move to dismiss his section 12(2) claim for lack of privity. However, as discussed infra, Becker does move to dismiss this claim on other grounds. . \"The meaning of ‘seller’ for purposes of § 12 has been judicially expanded beyond the person who transfers title to include ‘participants’ in the transaction. The test is whether the injury to the plaintiff flowed directly and proximately from the actions of the defendant.” Securities and Exchange Commission v. Seaboard Corp., 677 F.2d 1289, 1294 (9th Cir.1982). The Ninth Circuit reached this conclusion even while noting that recent Supreme Court cases had cast some doubt on such a broad reading of the term \"seller.\" See id. at 1294 n. 3. ." }, { "docid": "758847", "title": "", "text": "narrow scope of potential liability envisioned by section 11. See Kirkwood v. Taylor, 590 F.Supp 1375; Lorber v. Beebe, 407 F.Supp. at 287; cf. Barnes v. Osofsky, 373 F.2d at 272-73. Section 11 limits its conclusive presumption of reliance to persons acquiring any securities issued pursuant to the registration statement, notwithstanding the obvious fact that a false or misleading statement in or an omission from a registration statement could easily affect the price of stock issued prior to the offering. See Barnes, 373 F.2d at 272. Section 11 simply was not intended to provide a remedy to every person who might have been harmed by a defective registration statement. The Court believes that the language of section 11 and the existing case law indicate that a plaintiff who can only show that his or her shares might have been issued in the relevant offering should not be given the benefit of section ll’s conclusive presumption of reliance; such a person should be treated the same as individuals whose shares clearly were not issued in the offering. It is important to note that section ll’s direct tracing requirement does not leave individuals who have been harmed by a defective registration statement completely without a remedy. Abbey, for example, may still pursue his lawsuit under his 10b-5 claim. The “direct tracing” requirement simply precludes a shareholder from taking advantage of section ll’s relaxed liability requirements when the shareholder’s connection to the relevant offering is so attenuated that he or she cannot directly trace his or her shares to the offering. In such cases, requiring a shareholder to pursue other remedies, which may require a showing of reliance, seems imminently reasonable. III. Tracing Based on the Fungible Mass Theory There is no dispute that Abbey’s shares were comingled with the other CMI shares held in DTC’s vault. Abbey argues that because his shares were comingled he must be considered as having owned a fractional interest in each of the CMI shares then held as a “fungible mass” by DTC. Abbey notes that “[s]uch comingled ownership has long been recognized in several areas of" }, { "docid": "9696429", "title": "", "text": "(2d Cir.1967) (reasoning that § 11 was meant to provide a remedy only for those who purchased shares pursuant to a particular registration statement, whereas other provisions which contain some form of a scienter requirement are not limited to newly registered securities); In re Global Crossing, 313 F.Supp.2d at 207-208 (holding that only plaintiffs who purchased shares under the misleading registration statement had standing under § 11, noting that “[t]hose who purchased in the open market shares that were properly registered in an earlier offering are relegated to the securities fraud remedies that include [scienter and reliance] requirements”); Kirkwood v. Taylor, 590 F.Supp. 1375, 1378 (D.Minn.1984) (noting that the “[s]trict application of the tracing requirement. . .is consistent with the statutory scheme”). Courts have recognized, however, that because shares are often traded and purchased electronically by brokers, it may be difficult to trace purchased shares back to the original registration statements. This is particularly true when the company has a number of outstanding shares already issued, rather than a finite universe of shares issued pursuant to one registration statement in an initial public offering. See, e.g., Shapiro v. UJB Financial Corp., 964 F.2d 272, 286 (3d Cir.1992) (stating that “[b]efore discovery takes place, however, it is impossible for plaintiffs to know whether their shares were newly issued or were purchased in the secondary market.”); Barnes, 373 F.2d at 271-272 (acknowledging that tracing can be complicated in part because “most trading is done through brokers who neither know nor care whether they are getting newly registered or old shares”); In re Initial Public Offering Sec. Litig., Nos. 21 MC 92, 01 Civ. 3857, 01 Civ. 8408, 2004 WL 2297401, *38 (S.D.N.Y. Oct.13, 2004) (limiting plaintiffs’ § 11 class period to exclude all purchases made after untraceable securities entered the market). Therefore, at the pleading stage, “[pjlaintiffs have not been required to explain how their shares can be -traced; general allegations that plaintiff purchased ‘pursuant to’ or traceable to a false registration statement have been held sufficient to state a claim.” In re Global Crossing, 313 F.Supp.2d at 208 (citing Shapiro, 964" }, { "docid": "10554982", "title": "", "text": "the legislative history of the Security Act’s civil remedies. The House Report stated that § 11 remedies were accorded to purchasers “regardless of whether they bought their securities at the time of the original offer or at some later date,” H.R.Rep. No. 85, 73rd Cong. 1st Sess. 5 (1933) (hereinafter the' House Report). The Barnes court reasoned that this extended liability to “open market purchasers of the registered shares.” Id. at 273. Until recently, courts in this Circuit have consistently applied the Barnes tracing requirement to narrow the class of potential plaintiffs. For example, in Wolfson v. Solomon, 54 F.R.D. 584 (S.D.N.Y.1972), the court certified a plaintiff class consisting of those who purchased securities from the time the registration was effective until approximately six months thereafter, whether or not the securities were purchased on the open market, as long as the plaintiff “purchased [the issuer’s] securities that are the direct subject of the registration statement and prospectus.” Id. at 592-93. See also In re AES Corp. Sec. Litig., 825 F.Supp. 578, 592 (S.D.N.Y.1993) (claims under § 11 may be brought by persons who purchased shares “traceable” to the public offering); Unicorn Field, Inc. v. Cannon Group, Inc., 60 F.R.D. 217, 226 (S.D.N.Y.1973) (“It is now well settled in this Circuit that § 11 of the Securities Act permits recovery only by purchasers of the shares covered by the defective registration statement or by those who can trace their purchases directly to such shares.”); IX Louis Loss and Joel Seligman, Securities Regulation 4249 (3rd ed. 1992) (“Suit may be brought by any person who acquired a registered security, whether in the process of distribution or in the open market.”). However, in In Re WRT Energy Sec. Litig., Nos. 96 Civ. 3610, 96 Civ. 3611, 1997 WL 576023 (S.D.N.Y. Sept. 15, 1997), the court further narrowed the class of potential § 11 plaintiffs to those who purchased their securities in the initial public offering, thereby excluding those who could trace their securities to the registration statement but which were purchased on the open market. The court concluded that the Supreme Court’s decision" }, { "docid": "16956412", "title": "", "text": "the character of securities sold in interstate and foreign commerce and through the mails, and to prevent frauds in the sale thereof, * * * ” 48 Stat. 74 (1933). These aims were “to be achieved by a general antifraud provision and by a registration provision.” 1 Loss, Securities Regulation 178-79 (1961). Section 11 deals with civil liability for untrue or misleading statements or omissions in the registration statement; its stringent penalties are to insure full and accurate disclosure through registration. Since, under §§ 2(1) and 6, only individual shares are registered, it seems unlikely that the section developed to insure proper disclosure in the registration statement was meant to provide a remedy for other than the particular shares registered. In contrast both §§ 12(2) and 17, the antifraud sections of the 1933 Act, where some form of the traditional scienter requirement, dispensed with as to the issuer under § 11, is preserved, are not limited to the newly registered securities. Beyond this, the over-all limitation of § 11(g) that “In no case shall the amount recoverable under this section exceed the price at which the security was offered to the public,” and the provision of § 11(e) whereby, with qualifications not here material, an underwriter’s liability shall not exceed “the total price at which the securities underwritten by him and distributed to the public were offered to the public,” point in the direction of limiting § 11 to purchasers of the registered shares, since otherwise their recovery would be greatly diluted when the new issue was small in relation to the trading in previously outstanding shares. Appellants’ contention also seems to run somewhat contrary to the legislative history. Both the House and Senate versions of the present § 11, in identical language, established a conclusive presumption of reliance upon the registration statement by “every person acquiring any securities specified in such statements and offered to the public.” Section 9, S. 875; Section 9, H.R. 4314, 73d Cong., 1st Sess. (1933). Both bills then continued, “In case any such statement shall be false in any material respect, any persons acquiring" } ]

[ { "docid": "1174834", "title": "", "text": "whether § 1962(c) gives him adequate warning that the commission of • more than one such criminal act under certain circumstances constitutes an additional, separate crime for which there is a separate penalty. With respect to this aspect, the statutory scheme of § 1962(c) is not unlike that of 21 U.S.C. § 848 which proscribes “a continuing criminal enterprise” in drug trafficking. That statute also creates a separate offense based on the commission of predicate crimes under certain defined circumstances. Neither statute contains a requirement of scienter independent or in addition to that necessary to prove the predicate crimes. It was characterized as a business regulatory statute and upheld against a vagueness attack in United States v. Manfredi, 488 F.2d 588, 2d Cir. 1973, with the Court of Appeals relying in part on Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110, 115 (1972), where the Court said, “[I]n the field of regulatory statutes governing business activities, where the acts limited are in a narrow category, greater leeway is allowed.” If this language is applicable to 21 U.S.C. § 848, where the purpose of Congress is to eradicate totally illicit enterprises, it would seem all the more applicable to 18 U.S.C. § 1962 where the congressional purpose is to eradicate criminal means of acquiring, maintaining and conducting any enterprise affecting commerce. Given the leeway of a regulatory statute (and even without such leeway), § 1962(c) sufficiently places men of reasonable intelligence on notice that persons employed by the type of enterprise therein defined cannot resort to a pattern of specified criminal acts in the conduct of the affairs of that enterprise. Set forth, then, on the face of the statute is a necessary connection between the person who would commit the enumerated predicate acts and the enterprise, and between the acts and that person’s participation in the operations of the enterprise. It is true that the statute does not define this connection by distinguishing between predicate acts which play a major or a minor role, or any role at all, in what might" } ]

[ { "docid": "15848786", "title": "", "text": "that criminal conduct would form a pattern if it embraced criminal acts that had for example, “the same or similar purposes, results, participants, victims, or methods of commission:” 18 U.S.C. Section 3575(e) (1982), repealed by Sentencing Reform Act of 1984, Pub.L. No. 473, tit. II, Sections 212(a)(1) and (2), 235(a)(1), 98 Stat. 1987, 2031. Indelicato, at 1382. The allegations in the indictment in this case satisfy the Indelicato requirements. The Government alleges in the indictment that the racketeering acts are interrelated and that there is a threat of continuity, if not continuity in fact. “The validity of the indictment is to be tested by its allegations, not by defense counsel’s forecast of the ... evidence,” so that a technically sufficient indictment “is not subject to dismissal on the basis of factual questions, the resolution of which must await trial.” United States v. Black, 291 F.Supp. 262, 264 (S.D. N.Y.1968) (Weinfeld, J.) Lower federal courts have found the specific provisions challenged by defendants here as well as other related provisions not to be vague. United States v. Tripp, 782 F.2d 38, at 41-42 (6th Cir.1986) (rejecting contention that definition of “racketeering activity” is void for vagueness); United States v. Ruggiero, 726 F.2d 913, 923 (2d Cir.1984); United States v. Scotto, 641 F.2d 47, 52 (2d Cir.1980), cert. denied, 452 U.S. 961, 101 S.Ct. 3109, 69 L.Ed.2d 971 (1981); United States v. Huber, 603 F.2d 387, 393 (2d Cir.1979), cert. denied, 445 U.S. 927, 100 S.Ct. 1312, 63 L.Ed.2d 759 (1980); United States v. Swiderski, 593 F.2d 1246 (D.C.Cir.1978), cert. denied, 441 U.S. 933, 99 S.Ct. 2056, 60 L.Ed.2d 662 (1979) (Section 1962(c) not vague and, in particular, terms “enterprise,” “employed by or associated with,” “directly and indirectly in the conduct of such enterprise’s affairs through a pattern of racketeering activity,” and “pattern of racketeering activity,” not vague; United States v. Castellano, 416 F.Supp. 125, 128 (E.D.N.Y.1975); United States v. Scalzitti, 408 F.Supp. 1014 (W.D.Pa.1975), appeal dismissed without opinion, 556 F.2d 569 (2d Cir.1977) (“conduct of affairs” language of Section 1962(c) not vague); United States v. Stofsky, 409 F.Supp. 609, 612-14 (S.D.N.Y." }, { "docid": "16552541", "title": "", "text": "F.2d 472, 478-79 (C.A.5, 1976); United States v. Campanale, 518 F.2d 352, 364 (C.A.9, 1975), cert. denied, 423 U.S. 1050, 96 S.Ct. 777, 46 L.Ed.2d 638 (1976) (§ 1962(c) as a whole not vague and terms, “enterprise,” and “person” not vague, in particular); United States v. Cappetto, 502 F.2d 1351 (C.A.7, 1974), cert. denied, 420 U.S. 925, 95 S.Ct. 1121, 43 L.Ed.2d 395 (1975); United States v. Thevis, 474 F.Supp. 134, 139 (N.D.Ga.1979) (“employed by or associated with . . . any enterprise,” “to conduct or participate, directly or indirectly, in the conduct of enterprise’s affairs,” “through a pattern of racketeering activity” not vague); United States v. Field, 432 F.Supp. 55 (S.D.N.Y.1977), aff’d. without opinion, 578 F.2d 1371 (C.A.2), cert. denied, 439 U.S. 801, 99 S.Ct. 43, 58 L.Ed.2d 94 (1978); United States v. Castellano, 416 F.Supp. 125, 128 (E.D.N.Y.1975); United States v. Scalzitti, 408 F.Supp. 1014 (W.D.Pa.1975), appeal dismissed without opinion, 556 F.2d 569 (C.A.3, 1977) (“conduct of affairs” language of § 1962(c) not vague); United States v. White, 386 F.Supp. 882 (E.D.Wis.1974) (“pattern of racketeering activity” not vague); United States v. Stofsky, 409 F.Supp. 609, 612-14 (S.D.N.Y.1973) (“conduct or participate ... in the conduct of such enterprise’s affairs through a pattern of racketeering activity” not vague). Defendants attempt to distinguish this extensive authority on the grounds that the other courts which have considered the issue have not focused on the statute’s ambiguity regarding the nature and degree of relationship required among the elements “person,” “enterprise,” and “racketeering activity” and because they have not adopted the “as applied” approach taken by defendants. This Court finds these contentions spurious. First, many of the opinions cited above explicitly found that the relationships challenged by defendants here are defined with constitutionally sufficient clarity. United States v. Swiderski, supra; United States v. Thevis, supra; United States v. Scalzitti, supra; United States v. White, supra; United States v. Stofsky, supra. Secondly, the Court finds that the offense described by the Indictment is patently within the core of the statute’s prohibitions and thus independently finds the statute neither facially vague nor vague as applied. Under" }, { "docid": "16552540", "title": "", "text": "Grocery Co., 255 U.S. 81, 41 S.Ct. 298, 65 L.Ed. 516 (1921). The Third Circuit has already rejected as meritless a contention that 18 U.S.C. § 1962(c) is vague. United States v. Herman, 589 F.2d 1191, 1198 (C.A.3,1978), cert. denied, 441 U.S. 913, 99 S.Ct. 2014, 60 L.Ed.2d 386 (1979). Indeed, even though the vagueness challenges to RICO have been multitudinous, every court which has considered the question has found the statute, including the specific provisions which the defendants challenge here, not to be vague. See United States v. Aleman, 609 F.2d 298, 305 (C.A.7, 1979), cert. denied, 445 U.S. 946, 100 S.Ct. 1345, 63 L.Ed.2d 780 (1980) (“enterprise” broad but not vague); United States v. Swiderski, 593 F.2d 1246 (C.A.D.C.), cert. denied, 441 U.S. 933, 99 S.Ct. 2056, 60 L.Ed.2d 662 (1979) (§ 1962(c) not vague and, in particular, terms, “enterprise,” “employed by or associated with,” “directly and indirectly in the conduct of such enterprise’s affairs through a pattern of racketeering activity,” and “pattern of racketeering activity,” not vague); United States v. Hawes, 529 F.2d 472, 478-79 (C.A.5, 1976); United States v. Campanale, 518 F.2d 352, 364 (C.A.9, 1975), cert. denied, 423 U.S. 1050, 96 S.Ct. 777, 46 L.Ed.2d 638 (1976) (§ 1962(c) as a whole not vague and terms, “enterprise,” and “person” not vague, in particular); United States v. Cappetto, 502 F.2d 1351 (C.A.7, 1974), cert. denied, 420 U.S. 925, 95 S.Ct. 1121, 43 L.Ed.2d 395 (1975); United States v. Thevis, 474 F.Supp. 134, 139 (N.D.Ga.1979) (“employed by or associated with . . . any enterprise,” “to conduct or participate, directly or indirectly, in the conduct of enterprise’s affairs,” “through a pattern of racketeering activity” not vague); United States v. Field, 432 F.Supp. 55 (S.D.N.Y.1977), aff’d. without opinion, 578 F.2d 1371 (C.A.2), cert. denied, 439 U.S. 801, 99 S.Ct. 43, 58 L.Ed.2d 94 (1978); United States v. Castellano, 416 F.Supp. 125, 128 (E.D.N.Y.1975); United States v. Scalzitti, 408 F.Supp. 1014 (W.D.Pa.1975), appeal dismissed without opinion, 556 F.2d 569 (C.A.3, 1977) (“conduct of affairs” language of § 1962(c) not vague); United States v. White, 386 F.Supp. 882 (E.D.Wis.1974) (“pattern" }, { "docid": "1273286", "title": "", "text": "is not unconstitutionally vague, United States v. Hawes, 529 F.2d 472, 479 (5th Cir. 1976); nor is the language “to conduct or participate, directly or indirectly, in the conduct of enterprise’s affairs.” United States v. Stofsky, 409 F.Supp. 609 (S.D.N.Y.1973), aff’d 527 F.2d 237 (2d Cir. 1975); United States v. Scalzitti, 408 F.Supp. 1014 (W.D.Pa.1975); United States v. Field, 432 F.Supp. 55 (S.D. N.Y.1977), aff’d 578 F.2d 1371 (2d Cir. 1978), cert. dismissed 439 U.S. 801, 99 S.Ct. 43, 58 L.Ed.2d 94 (1979). Finally, the phrase “through a pattern of racketeering activity” is not unconstitutional under the vagueness doctrine. United States v. Hawes, supra. The argument that 18 U.S.C. § 1962 is unconstitutionally vague as applied here has even less merit. Only three defendants, Thevis, Global Industries, Inc. and Fidelity Equipment Leasing Corporation, are indicted under the two RICO counts. The gravamen of the offense proscribed in 18 U.S.C. § 1962(c) is “the conduct of an enterprise’s affairs through a pattern of racketeering activity.” United States v. Elliot, supra at 899, n. 23. Since the indictment alleges that the three defendants were members of an enterprise which had as its purpose the operation of a pornography business, and which purpose was advanced by means of a pattern of racketeering activity in which the defendants participated, there can be no real argument that this conduct was in an area of such attenuated and ambiguous criminal liability under 18 U.S.C. § 1962(c) that the conduct of the defendants should be protected by the shield of the vagueness doctrine. III. In part III of the defendant’s motion to dismiss, the defense asserts that Paragraphs Six and Seven of the indictment must be dismissed as an unconstitutional application of 18 U.S.C. § 1963. Part IV of their argument asserts that that statute itself is unconstitutional. The Court will analyze those two arguments in reverse order. The defendant forwards three different rationales in support of his contention that the forfeiture authorized by 18 U.S.C. § 1963(a) is unconstitutional: (1) that forfeiture is barred by Article III, Section III; Clause 2 of the Constitution; (2) that" }, { "docid": "2322653", "title": "", "text": "enterprise; nor does it require that such acts be in furtherance of the enterprise, as defendants suggest it must. In this Court’s view, the statute fails to state these requirements because Congress did not intend to require them in these terms. The perversion of legitimate business may take many forms. The goals of the enterprise may themselves be perverted. Or the legitimate goals may be continued as a front for unrelated criminal activity. Or the criminal activity may be pursued by some persons in direct conflict with the legitimate goals, pursued by others. Or the criminal activity may, indeed, be utilized to further otherwise legitimate goals. No good reason suggests itself as to why Congress should want to cover some, but not all of these forms; nor is there any good reason why this Court should construe the statute to do so. It plainly says that it places criminal responsibility on both those who conduct and those who participate, directly or indirectly, in the conduct of the affairs of the enterprise, without regard to what the enterprise was or was not about at the time in question. This may be broad, but it is not vague. Id. at 613. Thus, in Stofsky’s view, the “requisite nexus” between unlawful acts and enterprise activities was left undefined “for the simple reason that no particular degree of interrelationship is required.” United States v. Field, 432 F.Supp. 55, 58 (S.D.N.Y.1977) (citing Stofsky). Notwithstanding Stofsky’s refusal to clarify the reach of § 1962(c), courts have struggled to define the scope of behavior chargeable under that section. Attempts have been made to formalize the intuition that § 1962(c) was not meant to punish predicate activity which forms no part of the ordinary affairs of the enterprise, and is only incidentally related to its day-to-day business. See, e.g., United States v. Yonan, 623 F.Supp. 881, 883 (N.D.Ill.1985), aff'd in part and rev’d in part, 800 F.2d 164 (7th Cir.1986) (seeking a test for “association” and “participation” to disqualify, for example, “robbing a bank twice”). Some federal courts have required that the defendant participate in the “direction” or" }, { "docid": "23179873", "title": "", "text": "“some required relationship between the proscribed acts and the maintenance of union position”). But, as Judge Lasker noted in United States v. Field, supra : Section 1962(c) nowhere requires proof regarding the advancement of the union’s affairs by the defendant’s activities, or proof that the union itself is corrupt, or proof that the union authorized the defendant to do whatever acts form the basis for the charge. It requires only that the government establish that the defendant’s acts were committed in the conduct of the union’s affairs. 432 F.Supp. at 58. Furthermore, we do not think it necessary for a person to solidify or otherwise enhance his position in the enterprise through commission of the predicate violations. The court below properly told the jury that it was necessary to find that the defendant committed two or more of the offenses alleged in Counts 2 through 37 “while and as part of conducting or participating either directly or indirectly in the conduct of the affairs of the enterprise.” The charge did not have to require that the I.L.A. was itself corrupted or even that the union’s policies and administration were changed by the racketeering pattern. Judge Stewart in this case emphasized more clearly the need for a connection than a charge upheld in United States v. Rubin, supra, 559 F.2d at 989-90. There, the Fifth Circuit declined to find reversible error in the district court’s failure to add to the charge the defendant’s proffered words “by means of,” in addition to the word “through,” and approved an instruction, tracking the language of § 1962(c), that the Government had to prove that the defendant participated in the affairs of the union “through” the two or more offenses. We thus find no error in this part of the charge. II. RICO-mens rea Appellant Scotto argues that the RICO conviction is invalid and both appellants allege that the RICO conspiracy convictions are invalid because the district court failed to instruct the jury adequately on mens rea. The statute on its face is silent on the issue of mens rea. Scotto attributes the lack of" }, { "docid": "2322651", "title": "", "text": "1962(c) enterprise). In short, an organization cannot join with its own members to do that which it normally does and thereby form an enterprise separate and apart from itself. Where, as here, the organization is named as defendant, and the organization associates with its member to form the enterprise “association-in-fact,” the requisite distinctness does not obtain. As the district court pointed out, there is no difference between the union as an entity including Woodward as officer, and the union plus Woodward, since “the whole is no different than the sum of its parts in this context.” Furthermore, allowing plaintiffs to generate such “contrived partnerships” consisting of an umbrella organization and its subsidiary parts, would render the non-identity requirement of section 1962(c) meaningless. We decline to permit such an “end run” around the statutory requirements. B. “Participate in the Conduct of the Affairs ” The district court rejected Yellow Bus’ attempt to charge the Local as a RICO defendant under § 1962(c) by amending the complaint to name itself as the “enterprise.” In addition to objecting to the timing of the request, the court concluded that the amended complaint would fail to state a proper RICO claim because the union’s acts were not committed in the conduct of Yellow Bus’ affairs; rather, Yellow Bus was merely the “setting” for the union’s activities. We disagree with the district court’s assessment of the relationship between the bus company and the Local’s alleged conduct, and reject as overly restrictive any interpretation of the language of § 1962(c) which would necessitate a dismissal of the RICO claim against the Local in this case. Unlike “enterprise” and “pattern,” the terms “conduct,” “participate” and “through” do not have statutory definitions. The Act has been challenged as unconstitutionally vague for this reason. See United States v. Stofsky, 409 F.Supp. 609 (S.D.N.Y.1973). In rejecting the vagueness argument the court in Stofsky explained: [T]he statute does not define [the] connection by distinguishing between predicate acts which play a major role or a minor role, or any role at all in what might be seen as the usual operation of the" }, { "docid": "23179871", "title": "", "text": "the jury was required to find that the predicate acts “concerned or related to the operation or management of the enterprise” and “[ajffected the affairs of the I.L.A. in its essential functions.” But appellant cites no case demanding that a jury charge include his proposed or similar language. United States v. Huber, supra, and United States v. Nerone, supra, two of the cases upon which appellant relies, involved challenges to allegations in the indictment or to the sufficiency of the evidence; they did not discuss the language to be used in charging the jury about the conduct of the enterprise. In any event, their holdings concerning the degree of interrelationship required do not go as far as appellant would like. We agree with Judge Pierce, in United States v. Stofsky, 409 F.Supp. 609 (S.D.N.Y.1973), aff’d, 527 F.2d 237 (2d Cir. 1975), cert. denied, 429 U.S. 819, 97 S.Ct. 65, 50 L.Ed.2d 80 (1976), that the statute “does not define [the] connection by distinguishing between predicate acts which play a major or a minor role, or any role at all, in what might be seen as the usual operations of the enterprise; nor does it require that such acts be in furtherance of the enterprise . .” Id. at 613. The statute, then declines to define in quantitative terms the degree of interrelationship between the pattern of racketeering and the conduct of the enterprise’s affairs. We think that one conducts the activities of an enterprise through a pattern of racketeering when (1) one is enabled to commit the predicate offenses solely by virtue of his position in the enterprise or involvement in or control over the affairs of the enterprise, or (2) the predicate offenses are related to the activities of that enterprise. Simply committing predicate acts which are unrelated to the enterprise or one’s position within it would be insufficient. Cf. United States v. Rubin, 559 F.2d 975, 990 (5th Cir. 1977), vacated on other grounds, 439 U.S. 810, 99 S.Ct. 67, 58 L.Ed.2d 102 (1978), rev’d in part on other grounds, 591 F.2d 278 (5th Cir. 1979) (RICO requires" }, { "docid": "2322654", "title": "", "text": "the enterprise was or was not about at the time in question. This may be broad, but it is not vague. Id. at 613. Thus, in Stofsky’s view, the “requisite nexus” between unlawful acts and enterprise activities was left undefined “for the simple reason that no particular degree of interrelationship is required.” United States v. Field, 432 F.Supp. 55, 58 (S.D.N.Y.1977) (citing Stofsky). Notwithstanding Stofsky’s refusal to clarify the reach of § 1962(c), courts have struggled to define the scope of behavior chargeable under that section. Attempts have been made to formalize the intuition that § 1962(c) was not meant to punish predicate activity which forms no part of the ordinary affairs of the enterprise, and is only incidentally related to its day-to-day business. See, e.g., United States v. Yonan, 623 F.Supp. 881, 883 (N.D.Ill.1985), aff'd in part and rev’d in part, 800 F.2d 164 (7th Cir.1986) (seeking a test for “association” and “participation” to disqualify, for example, “robbing a bank twice”). Some federal courts have required that the defendant participate in the “direction” or “management” of the organization, or have fashioned other rules to restrict the universe of relationships subject to 1962(c) liability. See, e.g., Bennett v. Berg, 710 F.2d 1361, 1364 (8th Cir.), cert. denied sub nom. Prudential Ins. Co. v. Bennett, 464 U.S. 1008, 104 S.Ct. 527, 78 L.Ed.2d 710 (1983) (“[S]ome participation in the operation or management of the enterprise itself” is ordinarily required); Bank of America v. Touche Ross & Co., 782 F.2d 966, 970 (11th Cir.1986) (chargeable predicate acts must be “helpful or necessary” to the operation of the enterprise); United States v. Ladmer, 429 F.Supp. 1231, 1244 (E.D.N.Y.1977) (dismissing a RICO charge based on unauthorized expenditure of union funds for personal travel expenses because unrelated to the enterprise’s “essential” or “core” function). Other federal courts, however, merely impose an open-ended requirement that the predicate acts relate to, or have some effect upon, the affairs of the enterprise. See, e.g., United States v. Welch, 656 F.2d 1039, 1060-62 (5th Cir.1981), cert. denied sub nom. Cashell v. United States, 456 U.S. 915, 102 S.Ct. 1767," }, { "docid": "23179870", "title": "", "text": "or more of these connected racketeering offenses the defendant Scotto conducted or participated directly or indirectly in the conduct of the affairs of that enterprise. And the court went on to explain: [Y]ou must find beyond a reasonable doubt that the defendant committed the two or more of the offenses alleged in Counts 2 through 37 while and as part of conducting or participating either directly or indirectly in the conduct of the affairs of the enterprise. In this regard it is not necessary for the Government to prove that the affairs of the enterprise were advanced by the defendant’s activities, although you may find this to be true, or that the particular enterprise was corrupt or that the enterprise authorized the defendant to commit the particular acts of racketeering activity alleged. It is only necessary to find that the acts were committed by the defendant or caused to be committed by him in the conduct of, or his participation in, the affairs of the enterprise. (Emphasis added.) Appellant wanted the court to state that the jury was required to find that the predicate acts “concerned or related to the operation or management of the enterprise” and “[ajffected the affairs of the I.L.A. in its essential functions.” But appellant cites no case demanding that a jury charge include his proposed or similar language. United States v. Huber, supra, and United States v. Nerone, supra, two of the cases upon which appellant relies, involved challenges to allegations in the indictment or to the sufficiency of the evidence; they did not discuss the language to be used in charging the jury about the conduct of the enterprise. In any event, their holdings concerning the degree of interrelationship required do not go as far as appellant would like. We agree with Judge Pierce, in United States v. Stofsky, 409 F.Supp. 609 (S.D.N.Y.1973), aff’d, 527 F.2d 237 (2d Cir. 1975), cert. denied, 429 U.S. 819, 97 S.Ct. 65, 50 L.Ed.2d 80 (1976), that the statute “does not define [the] connection by distinguishing between predicate acts which play a major or a minor role, or" }, { "docid": "10096336", "title": "", "text": "case. Unlike “enterprise” and “pattern”, the terms “conduct”, “participate” and “through” do not have statutory definitions. The Act has been challenged as unconstitutionally vague for this reason. See United States v. Stofsky, 409 F.Supp. 609 (S.D.N.Y.1973). In rejecting the vagueness argument the court in Stofsky explained: The statute does not define [the] connection by distinguishing between predicate acts which play a major or a minor role, or any role at all in what might seem as the usual operation of the enterprise; nor does it require that such acts be in furtherance of the enterprise, as defendants suggest it must. In this Court’s view, the statute fails to state these requirements because Congress did not intend to require them in these terms. The perversion of legitimate business may take many forms. The goals of the enterprise may themselves be perverted. . Or the legitimate goals may be continued as a front for unrelated criminal activity. Or the criminal activity may be pursued by some persons in direct conflict with the legitimate goals, pursued by others. Or the criminal activity may, indeed, be utilized to further otherwise legitimate goals. No good reason suggests itself as to why Congress should want to cover some, but not all of these forms; nor is there any good reason why this Court should construe the statute to do so. It plainly says that it places criminal responsibility on both those who conduct and those who participate, directly or indirectly, in the conduct of the affairs of the enterprise, without regard to what the enterprise was or was not about at the time in question. This may be broad, but it is not vague. Id. at 613. Thus, in Stofsky’s view, the “requisite nexus” between unlawful acts and enterprise activities was left undefined “for the simple reason that no particular degree of interrelationship is required.” United States v. Field, 432 F.Supp. 55, 58 (S.D.N.Y.1977) (citing Stofsky). Notwithstanding Stofsky’s refusal to clarify the reach of § 1962(c), courts have struggled to define the scope of behavior chargeable under that section. Attempts have been made to formalize the" }, { "docid": "10096337", "title": "", "text": "Or the criminal activity may, indeed, be utilized to further otherwise legitimate goals. No good reason suggests itself as to why Congress should want to cover some, but not all of these forms; nor is there any good reason why this Court should construe the statute to do so. It plainly says that it places criminal responsibility on both those who conduct and those who participate, directly or indirectly, in the conduct of the affairs of the enterprise, without regard to what the enterprise was or was not about at the time in question. This may be broad, but it is not vague. Id. at 613. Thus, in Stofsky’s view, the “requisite nexus” between unlawful acts and enterprise activities was left undefined “for the simple reason that no particular degree of interrelationship is required.” United States v. Field, 432 F.Supp. 55, 58 (S.D.N.Y.1977) (citing Stofsky). Notwithstanding Stofsky’s refusal to clarify the reach of § 1962(c), courts have struggled to define the scope of behavior chargeable under that section. Attempts have been made to formalize the intuition that § 1962(c) was not meant to punish predicate activity which forms no part of the ordinary affairs of the enterprise, and is only incidentally related to its day-to-day business. See, e.g., U.S. v. Yonan, 623 F.Supp. 881, 883 (N.D.Ill.1985), aff'd in part and rev’d in part, 800 F.2d 164 (7th Cir.1986) (seeking a test for “association” and “participation” to disqualify, for example, “robbing a bank twice”). Some federal courts have required that the defendant participate in the “direction” or “management” of the organization, or have fashioned other rules to restrict the universe of relationships subject to § 1962(c) liability. See, e.g. Bennett v. Berg, 710 F.2d 1361, 1364 (8th Cir.), cert. denied sub nom. Prudential Ins. Co. v. Bennett, 464 U.S. 1008, 104 S.Ct. 527, 78 L.Ed.2d 710 (1983) (“[S]ome participation in the operation or management of the enterprise itself” is ordinarily required); Bank of America v. Touche Ross & Co., 782 F.2d 966, 970 (11th Cir.1986) (chargeable predicate acts must be “helpful or necessary” to the operation of the enterprise); United States" }, { "docid": "11131929", "title": "", "text": "S.Ct. 3109, 69 L.Ed.2d 971 (1981); see also Tillem, supra, 906 F.2d at 822 (quoting Scotto, supra, 641 F.2d at 54). This test has been interpreted liberally. “[T]he statute ‘does not define [the] connection by distinguishing between predicate acts which play a major or a minor role, or any role at all, in what might be seen as the usual operations of the enterprise; nor does it require that such acts be in furtherance of the enterprise....’ The statute, then declines to define in quantitative terms the degree of interrelationship between the pattern of racketeering and the conduct of the enterprise’s affairs.” Scotto, supra, 641 F.2d at 54 (quoting United States v. Stofsky, 409 F.Supp. 609, 613 (S.D.N.Y.1973), aff'd, 527 F.2d 237 (2d Cir.1975), cert. denied, 429 U.S. 819, 97 S.Ct. 65, 66, 50 L.Ed.2d 80 (1976)). Thus, the courts have not required that “the predicate acts ‘concerned or related to the operation or management of the enterprise’ and ‘[a]ffeeted the affairs of the [enterprise] in its essential functions.’ ” Scotto, supra, 641 F.2d at 54 (quoting appellant’s proposed jury charge). In addition, “ ‘Section 1962(c) nowhere requires proof regarding advancement of the [enterprise’s] affairs by the defendant’s activities, or proof that the [enterprise] itself is corrupt, or proof that the [enterprise] authorized the defendant to do whatever acts form the basis for the charge. It requires only that the government establish that the defendant's acts were committed in the conduct of the [enterprise’s] affairs.’ ” Scotto, supra, 641 F.2d at 54 (quoting United States v. Field, 432 F.Supp. 55, 58 (S.D.N.Y.1977), aff'd, 578 F.2d 1371 (2d Cir.), cert. dismissed, 439 U.S. 801, 99 S.Ct. 43, 58 L.Ed.2d 94 (1978)). Accepting the allegations in the amended complaint as true, as the Court must, see Papasan, supra, 478 U.S. at 283, 106 S.Ct. at 2943, the Court finds that the transfer of the Strange Note by Mayes Sr. to the “Mayes Charitable Trust,” alleged in the amended complaint to be part of a fraudulent scheme to hide his assets and defraud plaintiffs, is without question sufficiently related to the activities of" }, { "docid": "10096335", "title": "", "text": "its parts in this context.” Furthermore, allowing plaintiffs to generate such “contrived partnerships” consisting of an umbrella organization and its subsidiary parts, would render the non-identity requirement of section 1962(c) meaningless. We decline to permit such an “end run” around the statutory requirements. B. “Participate in the conduct of the affairs” The district court rejected Yellow Bus’ attempt to charge the Local as a RICO defendant under § 1962(c) by amending the complaint to name itself as the “enterprise”. In addition to objecting to the timing of the request, the court concluded that the amended complaint would fail to state a proper RICO claim because the union’s acts were not committed in the conduct of Yellow Bus’ affairs; rather, Yellow Bus was merely the “setting” for the union’s activities. We disagree with the district court’s assessment of the relationship between the bus company and the Local’s alleged conduct, and reject as overly restrictive any interpretation of the language of § 1962(c) which would necessitate a dismissal of the RICO claim against the Local in this case. Unlike “enterprise” and “pattern”, the terms “conduct”, “participate” and “through” do not have statutory definitions. The Act has been challenged as unconstitutionally vague for this reason. See United States v. Stofsky, 409 F.Supp. 609 (S.D.N.Y.1973). In rejecting the vagueness argument the court in Stofsky explained: The statute does not define [the] connection by distinguishing between predicate acts which play a major or a minor role, or any role at all in what might seem as the usual operation of the enterprise; nor does it require that such acts be in furtherance of the enterprise, as defendants suggest it must. In this Court’s view, the statute fails to state these requirements because Congress did not intend to require them in these terms. The perversion of legitimate business may take many forms. The goals of the enterprise may themselves be perverted. . Or the legitimate goals may be continued as a front for unrelated criminal activity. Or the criminal activity may be pursued by some persons in direct conflict with the legitimate goals, pursued by others." }, { "docid": "16223214", "title": "", "text": "plan or motive so as’ to constitute a pattern and not simply a series of disconnected acts.” Id. at 614. But this should not mean that the acts themselves must be interrelated. The common scheme or plan must be supplied in each instance by the enterprise, in the conduct of whose affairs the acts must be committed. Congress, after long analysis and debate, defined the term “pattern”. Had Congress intended the definition of “pattern” used in 18 U.S.C. § 3575(e) (also part of the Organized Crime Control Act), which the court in Stofsky used to cast light on the § 1961(5) definition of “pattern”, it could have specifically provided for such. Instead Congress determined that the “enterprise” would be the common bridge between the two predicate acts and therefore specifically did not provide any other requirement or test of interrelatedness. It is perhaps reassuring, however, to note that the definition of “pattern” as set forth in 18 U.S.C. § 3575(e) has been met here, for the criminal acts alleged had the same “purposes”, “participants”, and are interrelated by “distinguishing characteristics and are not isolated events.” The characteristics are the use of an apparently legitimate enterprise, the Theatre, as a vehicle to provide benefits to the participants in the pattern as a consequence of concealed criminal acts. If Congress intended this definition to be read into § 1961(5) it should have said so; but even if it had, the Indictment remains sufficient. In United States v. White, 386 F.Supp. 882 (E.D.Wis.1974), cited by defendant Weisman, the court was concerned that absent a showing of a pattern or interrelatedness, 18 U.S.C. § 1962(c) could be used against the isolated acts of an independent criminal; therefore the two acts “must have a greater interrelationship than simply commission by a common perpetrator.” Id. at 883. This court agrees that more than a common perpetrator is needed. However, the additional element is satisfied by a showing that the predicate acts were both committed in the conduct of the affairs of the same enterprise or business, therefore possessing a distinguishing characteristic, and are not isolated. See" }, { "docid": "23179865", "title": "", "text": "in 1974 concerning the unionizing of Jackson Engineering Co. DISCUSSION I. The RICO and RICO conspiracy convictions — instruction on the element of “conduct of [the] enterprise’s affairs” Among the principal arguments on appeal are those focusing on the “RICO” and “RICO conspiracy” convictions. RICO, an acronym for the part of the Organized Crime Control Act of 1970 dealing with Racketeer Influenced and Corrupt Organizations, 18 U.S.C. §§ 1961-68; see generally H.R.Rep.No. 91-1549, 91st Cong., 2d Sess., reprinted in [1970] U.S.Code Cong. & Admin.News, pp. 4007, 4010, 4032-33, specifically includes within its definition of “racketeering activity” a wide variety of serious criminal acts under federal and state law, among them “any act which is indictable under title 29, United States Code, section 186 (dealing with restrictions on payments and loans to labor organizations).” Id. § 1961(1)(C). It furthermore defines “pattern of racketeering activity” as “requirpng] at least two acts of racketeering activity.” Id. § 1961(5). The term “enterprise” includes “any union.” Id. § 1961(4). Under 18 U.S.C. § 1962(c), it is unlawful “for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity . . . .” Id. There also is a prohibition against “conspirfing] to violate any of the provisions” of subsection (c) of § 1962. Id. (d). The RICO statute has been upheld as not unconstitutionally vague. E. g., United States v. Huber, 603 F.2d 387, 393 (2d Cir. 1979), cert. denied, 445 U.S. 927, 100 S.Ct. 1312, 63 L.Ed.2d 759 (1980); United States v. Swiderski, 593 F.2d 1246, 1249 (D.C.Cir. 1978), cert. denied, 441 U.S. 933, 99 S.Ct. 2056, 60 L.Ed.2d 662 (1979); United States v. Campanalé, 518 F.2d 352, 364 (9th Cir. 1975) (per curiam), cert. denied, 423 U.S. 1050, 96 S.Ct. 777, 46 L.Ed.2d 638 (1976); United States v. Field, 432 F.Supp. 55, 58 (S.D.N.Y.1977), aff’d, 578 F.2d 1371 (2d Cir.), cert. dismissed, 439 U.S. 801, 99 S.Ct. 43, 58 L.Ed.2d 94 (1978). It" }, { "docid": "23179872", "title": "", "text": "any role at all, in what might be seen as the usual operations of the enterprise; nor does it require that such acts be in furtherance of the enterprise . .” Id. at 613. The statute, then declines to define in quantitative terms the degree of interrelationship between the pattern of racketeering and the conduct of the enterprise’s affairs. We think that one conducts the activities of an enterprise through a pattern of racketeering when (1) one is enabled to commit the predicate offenses solely by virtue of his position in the enterprise or involvement in or control over the affairs of the enterprise, or (2) the predicate offenses are related to the activities of that enterprise. Simply committing predicate acts which are unrelated to the enterprise or one’s position within it would be insufficient. Cf. United States v. Rubin, 559 F.2d 975, 990 (5th Cir. 1977), vacated on other grounds, 439 U.S. 810, 99 S.Ct. 67, 58 L.Ed.2d 102 (1978), rev’d in part on other grounds, 591 F.2d 278 (5th Cir. 1979) (RICO requires “some required relationship between the proscribed acts and the maintenance of union position”). But, as Judge Lasker noted in United States v. Field, supra : Section 1962(c) nowhere requires proof regarding the advancement of the union’s affairs by the defendant’s activities, or proof that the union itself is corrupt, or proof that the union authorized the defendant to do whatever acts form the basis for the charge. It requires only that the government establish that the defendant’s acts were committed in the conduct of the union’s affairs. 432 F.Supp. at 58. Furthermore, we do not think it necessary for a person to solidify or otherwise enhance his position in the enterprise through commission of the predicate violations. The court below properly told the jury that it was necessary to find that the defendant committed two or more of the offenses alleged in Counts 2 through 37 “while and as part of conducting or participating either directly or indirectly in the conduct of the affairs of the enterprise.” The charge did not have to require that" }, { "docid": "22093575", "title": "", "text": "(series of rigged card games). . Although Mallah was a conspiracy, not a RICO, case, we believe that the business venture analogy is appropriate to help define a RICO “enterprise”. See also United States v. Palermo, 410 F.2d 468 (7th Cir. 1969), in which the Court found “one overall agreement to extort money from Riley in any way possible” even though many different means had been used. . We note that at least two district courts have construed “a pattern of racketeering activity”, as used in the Act, to require that the two or more acts of “racketeering activity” be interrelated. United States v. White, 386 F.Supp. 882, 883-84 (E.D.Wis.1974); United States v. Stofsky, 409 F.Supp. 609, 614 (S.D.N.Y.1973). On its face, however, the statute does not require such “interrelatedness”, and we can perceive no reason for reading it into the statutory definition, 18 U.S.C. § 1961(5). “There is no constitutional principle that would prevent Congress from labeling the commission of two crimes within a specified period of time and in the course of a particular type of enterprise a ‘pattern’ of activity, whether or not a sequence of two similar acts amounts to a pattern as that term is ordinarily understood. Further, Congress is constitutionally entitled to make such behavior an independent criminal offense, punishable more severely than simply twice the penalty for each constituent offense.” United States v. Field, 432 F.Supp. 55, 60-61 (S.D.N.Y.1977). We note also that the Act does not criminalize either associating with an enterprise or engaging in a pattern of racketeering activity standing alone. The gravamen of the offense described in 18 U.S.C. § 1962(c) is the conduct of an enterprise’s affairs through a pattern of racketeering activity. Thus, the Act does require a type of relatedness: the two or more predicate crimes must be related to the affairs of the enterprise but need not otherwise be related to each other. . Although Perez was a hybrid case, involving a wheel conspiracy in which each spoke was itself a chain conspiracy, we applied the interdependence rationale to find a single, overall conspiracy. Perez involved" }, { "docid": "2322652", "title": "", "text": "to the timing of the request, the court concluded that the amended complaint would fail to state a proper RICO claim because the union’s acts were not committed in the conduct of Yellow Bus’ affairs; rather, Yellow Bus was merely the “setting” for the union’s activities. We disagree with the district court’s assessment of the relationship between the bus company and the Local’s alleged conduct, and reject as overly restrictive any interpretation of the language of § 1962(c) which would necessitate a dismissal of the RICO claim against the Local in this case. Unlike “enterprise” and “pattern,” the terms “conduct,” “participate” and “through” do not have statutory definitions. The Act has been challenged as unconstitutionally vague for this reason. See United States v. Stofsky, 409 F.Supp. 609 (S.D.N.Y.1973). In rejecting the vagueness argument the court in Stofsky explained: [T]he statute does not define [the] connection by distinguishing between predicate acts which play a major role or a minor role, or any role at all in what might be seen as the usual operation of the enterprise; nor does it require that such acts be in furtherance of the enterprise, as defendants suggest it must. In this Court’s view, the statute fails to state these requirements because Congress did not intend to require them in these terms. The perversion of legitimate business may take many forms. The goals of the enterprise may themselves be perverted. Or the legitimate goals may be continued as a front for unrelated criminal activity. Or the criminal activity may be pursued by some persons in direct conflict with the legitimate goals, pursued by others. Or the criminal activity may, indeed, be utilized to further otherwise legitimate goals. No good reason suggests itself as to why Congress should want to cover some, but not all of these forms; nor is there any good reason why this Court should construe the statute to do so. It plainly says that it places criminal responsibility on both those who conduct and those who participate, directly or indirectly, in the conduct of the affairs of the enterprise, without regard to what" }, { "docid": "1273285", "title": "", "text": "Cir. 1978), “a criminal statute should be fairly construed in accordance with the legislative purpose behind its enactment. See, e. g. United States v. Turley, 352 U.S. 407 [77 S.Ct. 397, 1 L.Ed.2d 430] (1957).” Thus, in construing this act and effectuating this purpose, the Fifth Circuit has given the RICO enterprise “a very broad meaning.” United States v. Elliot, supra at 897. II. The defendant’s second argument is that 18 U.S.C. § 1962 is void for vagueness. 18 U.S.C. § 1962(c) provides, in part, that: “[i]t shall be unlawful for any person employed by or associated with any enterprise ... to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity.” (emphasis added). The defendant contends that the italicized portions of the aforementioned statute are impermissibly vague, see, Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972), and that Counts I and II must be dismissed as a result. Facially, the phrase “employed by or associated [by an] enterprise” is not unconstitutionally vague, United States v. Hawes, 529 F.2d 472, 479 (5th Cir. 1976); nor is the language “to conduct or participate, directly or indirectly, in the conduct of enterprise’s affairs.” United States v. Stofsky, 409 F.Supp. 609 (S.D.N.Y.1973), aff’d 527 F.2d 237 (2d Cir. 1975); United States v. Scalzitti, 408 F.Supp. 1014 (W.D.Pa.1975); United States v. Field, 432 F.Supp. 55 (S.D. N.Y.1977), aff’d 578 F.2d 1371 (2d Cir. 1978), cert. dismissed 439 U.S. 801, 99 S.Ct. 43, 58 L.Ed.2d 94 (1979). Finally, the phrase “through a pattern of racketeering activity” is not unconstitutional under the vagueness doctrine. United States v. Hawes, supra. The argument that 18 U.S.C. § 1962 is unconstitutionally vague as applied here has even less merit. Only three defendants, Thevis, Global Industries, Inc. and Fidelity Equipment Leasing Corporation, are indicted under the two RICO counts. The gravamen of the offense proscribed in 18 U.S.C. § 1962(c) is “the conduct of an enterprise’s affairs through a pattern of racketeering activity.” United States v. Elliot, supra at 899, n. 23. Since the" } ]

[ { "docid": "17255953", "title": "", "text": "1642 (jurors need not be totally ignorant of the facts and issues); Murphy v. Florida, 421 U.S. 794, 799, 95 S.Ct. 2031, 2036, 44 L.Ed.2d 589 (1975) (juror exposure to news accounts of crime does not by itself presumptively deprive defendant of fair trial). The Supreme Court has found that even pervasive and adverse pretrial publicity “does not inevitably lead to an unfair trial.” Nebraska Press Association, 427 U.S. at 554, 96 S.Ct. at 2800. In addition, transfer to a venue outside New York City would be hardly likely to diminish the level of media coverage. See United States v. Dioguardi, 428 F.2d 1033, 1039 (2d Cir.1970) (transfer to smaller city may result in more rather than less intensive publicity). In airy event, this issue is best determined during or after voir dire examinations. See United States v. Livoti, 8 F.Supp.2d 246, 249 (S.D.N.Y.1998) (even if media coverage was prejudicial, defendant failed to show impartial jury cannot be selected following careful voir dire questioning); United States v. Washington, 813 F.Supp. 269 (D.Vt.1993) (voir dire is best time to assess impact of negative publicity); United States v. McDonald, 740 F.Supp. 757, 761 (D.Alaska 1990) (“[a]ny attempt to measure the prejudicial effect of publicity on prospective jurors prior to voir dire would be merely speculative”); United States v. Sinclair, 424 F.Supp. 719, 720 (D.Del.1976) (in absence of extraordinary circumstances decision to change venue should await voir dire). Careful voir dire questioning is a recognized and effective tool to uncover bias. Patton, 467 U.S. at 1038 n. 13, 104 S.Ct. at 2892 n. 13. Indeed, thorough voir dire examinations have been used in this circuit to produce unbiased juries, even in high-profile cases. See In re Application of National Broadcasting Co., Inc., 635 F.2d 945, 953 (2d Cir.1980) (“The opportunity for voir dire examination still remains a sufficient device to eliminate from jury service those so affected by exposure to pre-trial publicity that they cannot fairly decide issues of guilt or innocence.”); United States v. Gotti, 753 F.Supp. 443 (E.D.N.Y.1990); United States v. Amuso, 10 F.Supp.2d 227 (E.D.N.Y.1998) (organized crime); United States v." } ]

[ { "docid": "23071334", "title": "", "text": "further answered, however, that he would be able to put aside his “envy” and that it would not influence his decision on the defendants’ guilt or innocence. He also indicated that although it probably would be hard to put aside his opinion, he thought he could render a decision based solely on the evidence presented in the courtroom. He also indicated that he would not expect Anthony Peters to explain his wealth because, based upon the judge’s comments, he understood that he could not expect Peters to testify or to offer evidence. These comments do not indicate that these jurors were not impartial. As the Supreme Court has stated, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case. This is particularly true in criminal cases. To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court. Irvin v. Dowd, 366 U.S. 717, 722-23, 81 S.Ct. 1639, 1642-43, 6 L.Ed.2d 751 (1961). Peters has not pointed out any actual prejudice from the publicity, and we find that the trial judge’s voir dire examination adequately protected the defendant from any prejudice. See United States v. Hendrix, 752 F.2d 1226, 1231-32 (7th Cir.), cert. denied sub nom. Merritt v. United States, — U.S. —, 105 S.Ct. 2032, 85 L.Ed.2d 314 (1985). The district judge’s conduct of the voir dire examination coupled with his repeated admonition to the selected jurors not to listen to or read any accounts of the trial or speak with anyone about the case satisfied due process requirements. We find no support for Peters’ contention that the district court abused its discretion in denying the" }, { "docid": "14021004", "title": "", "text": "v. McVeigh, 918 F.Supp. 1467, 1470 (W.D.Okla.1996). Indeed, “[o]nly where voir dire reveals that an impartial jury cannot be impanelled would a change of venue be justified.” Bakker, 925 F.2d at 732. In this regard, “it is not required ... that jurors be totally ignorant of the facts and issues involved.” Id. at 734. Rather, “[i]t is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.” Id. These principles, applied here, compel the conclusion that neither dismissal nor transfer is warranted on the current record of pre-trial publicity. To be sure, this prosecution has understandably occasioned considerable nationwide publicity, and it is likely that few, if any, citizens here in this district, or indeed in any district, will not have read or heard of this case. The parties’ submissions, including numerous news articles, leave no doubt on this point: This case has received considerable nationwide media attention. But this fact is, of course, by itself, no reason for dismissal or transfer, for it is not uncommon in the course of voir dire for a venire member to disclose familiarity with a case by virtue of pre-trial publicity. Indeed, this occurs just as often in locally notorious cases as in cases of national interest. Yet, what ultimately matters is not simply whether a potential juror has heard or read about a case, but whether a prospective “juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.” Irvin v. Dowd, 366 U.S. 717, 722-23, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). Put another way, all prospective jurors in this case, as in all cases, will be questioned carefully as to what they have seen or read or heard about the case and whether they have formed any opinions or impressions. No juror will be qualified to serve unless the Court is satisfied that the juror (i) is able to put aside any previously formed opinions or impressions, (ii) is prepared to pay careful and close attention to the evidence as" }, { "docid": "20302738", "title": "", "text": "To hold that the mere existence of any preconceived notion- as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court. Murphy v. Florida, 421 U.S. 794, 800, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975) (internal quotations omitted). Here, Juror No. 42 said — not once, but three times — she could do just that. After the district court explained the purpose of voir dire, the juror acknowledged: “I know that what you’re trying to do is figure out if someone could serve impartially. I would — I believe that I could according to the evidence and the Constitution, yes.” J.A., 38. The court asked Juror No. 42 whether, if a trial involved allegations of an individual facilitating illegal immigration, she could “listen fairly and impartially to the evidence and render a fair and impartial verdict based only on the evidence that you hear here in the courtroom?” J.A. 39. The juror responded: “Yes. That’s the beauty of the Constitution, is you’re innocent until proven guilty.” J.A. 39. The court then secured a final reassurance of impartiality: “So is there ... [n]o doubt in your mind? You think you can render a fair and impartial ... verdict if selected to serve on this jury?” J.A. 40. Juror No. 42 responded: “Yes.” J.Á. 40. Although a juror’s avowal of impartiality is not dispositive, see Murphy, 421 U.S. at 800, 95 S.Ct. 2031,. “if a district court views juror assurances of continued impartiality to be credible, the court may rely upon such assurances in deciding whether a defendant has satisfied the burden of proving actual prejudice.” United States v. Corvado, 304 F.3d 593, 603 (6th Cir.2002) (internal '.quotations omitted). Because Jones fails to cast doubt on Juror No. 42’s assurance that she could set aside any opinion she may have had on the case, see id., we defer to the" }, { "docid": "14021006", "title": "", "text": "it is presented in the case and finally (iii) is able to render a fair and impartial verdict based solely on the evidence adduced at trial and the Court’s instructions of law. Just as the sheer volume of pretrial publicity in this case does not compel dismissal or transfer, neither does the nature of that publicity. A review of the parties’ submissions on pre-trial publicity relating to this case discloses that the bulk of the publicity is factual, rather than inflammatory, and hence less likely to poison the venire pool. See Murphy, 421 U.S. at 801 n, 95 S.Ct. 2031. 4. No doubt the publicity in this case also includes some expressions of opinions on newspaper editorial pages or the Internet that were specifically designed to inflame or persuade readers. Yet, on the whole, the record does not warrant a conclusion that prejudicial pre-trial publicity has been so “inherently prejudicial that trial proceedings must be presumed to be tainted” or that Lindh cannot receive a fair trial. Bakker, 925 F.2d at 732. And, in any event, the proof of this pudding will be the voir dire results; only those prospective jurors found to be capable of fair and impartial jury service after careful voir dire will be declared eligible to serve as jurors. Past experience provides reasonable assurance that more than a sufficient number of qual ified, impartial jurors will be identified as a result of the voir dire in this case. Nor are Lindh’s expert reports — one prepared by Neil Vidmar and the other by Steven Penrod — to the contrary; neither persuasively supports dismissal of the Indictment or transfer to another district. Vidmar developed a survey interview questionnaire to assess the impact of pre-trial publicity in this case. He later supervised the Evans McDonough Company in conducting random telephone interviews of 400 individuals in this district and, for comparison purposes, 200 individuals in Chicago, Minneapolis, San Francisco and Seattle. Penrod, on the other hand, conducted a content analysis of the pre-trial newspaper coverage concerning Lindh and other issues, as reported in the two major newspapers circulated in" }, { "docid": "14021005", "title": "", "text": "it is not uncommon in the course of voir dire for a venire member to disclose familiarity with a case by virtue of pre-trial publicity. Indeed, this occurs just as often in locally notorious cases as in cases of national interest. Yet, what ultimately matters is not simply whether a potential juror has heard or read about a case, but whether a prospective “juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.” Irvin v. Dowd, 366 U.S. 717, 722-23, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). Put another way, all prospective jurors in this case, as in all cases, will be questioned carefully as to what they have seen or read or heard about the case and whether they have formed any opinions or impressions. No juror will be qualified to serve unless the Court is satisfied that the juror (i) is able to put aside any previously formed opinions or impressions, (ii) is prepared to pay careful and close attention to the evidence as it is presented in the case and finally (iii) is able to render a fair and impartial verdict based solely on the evidence adduced at trial and the Court’s instructions of law. Just as the sheer volume of pretrial publicity in this case does not compel dismissal or transfer, neither does the nature of that publicity. A review of the parties’ submissions on pre-trial publicity relating to this case discloses that the bulk of the publicity is factual, rather than inflammatory, and hence less likely to poison the venire pool. See Murphy, 421 U.S. at 801 n, 95 S.Ct. 2031. 4. No doubt the publicity in this case also includes some expressions of opinions on newspaper editorial pages or the Internet that were specifically designed to inflame or persuade readers. Yet, on the whole, the record does not warrant a conclusion that prejudicial pre-trial publicity has been so “inherently prejudicial that trial proceedings must be presumed to be tainted” or that Lindh cannot receive a fair trial. Bakker, 925 F.2d at 732. And, in any" }, { "docid": "5245020", "title": "", "text": "This case generated a great deal of publicity. The petitioner contends that extensive media coverage of the crimes and his trial made it impossible to impanel an unbiased jury in Rutherford County. Thus, it is argued that he was denied due process when the trial judge refused to grant his motion for a change of venue. A citizen’s right to a jury trial guarantees that a criminal defendant will receive a fair trial by a panel of impartial jurors. This does not mean, however, that jurors must be totally ignorant of the facts and issues involved in a case in order to be deemed impartial. Irvin v. Dowd, 366 U.S. 717, 721-724, 81 S.Ct. 1639, 1642-1643, 6 L.Ed.2d 751 (1961). The mere exposure to publicity is not sufficient, standing alone, to give rise to a presumption that the defendant will be deprived of his right to be tried by fair and impartial jurors. Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977). Rather, the petitioner bears the burden of showing that a juror was unable to set aside any preconceived notions or opinions and render a verdict based solely upon the evidence presented in court. Irvin, supra, 366 U.S. at 723-724, 81 S.Ct. at 1643. The trial judge was well aware that media coverage may have tainted the pool of veniremen. For this reason, potential jurors were extensively questioned during voir dire about their knowledge of the case and any opinions that they may have formed about the petitioner’s guilt or innocence. Questionable jurors were dismissed by the court for cause. Each member of the jury expressed a belief that he could render a verdict based upon the evidence. The trial judge was satisfied that the jurors would render such a verdict. Having studied the record, this Court is in agreement. The petitioner has failed to meet his burden of showing that at least one of the jurors was predisposed to finding him guilty of the charges. Therefore, the trial court did not err by refusing to grant the petitioner’s motion for a change of venue." }, { "docid": "7194023", "title": "", "text": "is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court, (citations omitted). Id. at 723, 81 S.Ct. at 1642. (Citations omitted.) 4s 5k sk ‡ Sfc During the voir dire, Juror Yell was asked if there was any reason she might be unable to return an unbiased and unprejudiced verdict. She answered “No.” At the hearing after the trial, she indicated that the conversation she overheard had no bearing on her decision. Although a juror’s assurance of impartiality is not dispositive of petitioner’s rights, a trial judge’s finding of impartiality should be set aside only upon a showing that prejudice is manifest. Irvin, supra, 366 U.S. at 723, 81 S.Ct. at 1642. Haney v. Rose, 642 F.2d 1055, 1059-60 (6th Cir.1981). Under this legal precedent it is significant that, following the voir dire examination, Judge Peck denied further motions regarding the conduct of the voir dire saying: [F]or whatever it is worth, I have the view that the Jury that has been selected is as fair and impartial a Jury as could be obtained. (Tr. at 291) We now hold, both for the reasons set forth above and for one additional reason set forth below, that the trial judge did not abuse his discretion in the handling of jury selection in this trial. Defendants have adduced no proof that this was a biased jury. At the en banc hearing of this case, the author of this opinion asked lead counsel for Governor Blanton whether there was evidence of jury bias. The response was made wholly in relation to one juror and cited evidence which we deem quite inconclusive. We have searched this record for any other such evidence pertaining to periods before, during, or posttrial and have found none. For the reasons set forth above, we believe that the jury selection process, although not perfect, was nonetheless both fair and effective in that it resulted in an impartial jury. We find no merit as to other issues, and in this regard adopt the panel opinion’s dispositions for" }, { "docid": "4304247", "title": "", "text": "jurors were excluded as potentially being partial. We do not believe that the number of venirepersons excluded for being partial gives rise to the conclusion the appellants’ assert. Compare Irvin, supra, 366 U.S. 717, 727, 81 S.Ct. 1639, 1645 (prejudice shown where 268 — 90% of those questioned on the point — believed the accused guilty) with United States v. Blanton, 719 F.2d 815, 820 (6th Cir.1983), cert. denied, — U.S. —, 104 S.Ct. 1592, 80 L.Ed.2d 125 (1984) (70 out of 92 venirepersons excused was not reflective of prejudice). The district court took several steps to insure the impartiality of the jurors actual ly selected. One hundred fourteen venire-persons were selected in this case, a substantially larger jury pool than is utilized in most cases. Additionally, the defendants were granted 16 peremptory challenges as opposed to the normal 10. See Blanton, supra, 719 F.2d at 824. Furthermore, the trial judge took great care during the voir dire proceedings to ensure that an impartial jury was selected. The following excerpts from the voir dire proceeding serve to exemplify the care taken by the trial judge. [COURT] The parties to the lawsuit are entitled to have the case tried to a jury that is impartial. An impartial jury is a jury where each individual juror is without bias of any kind and is fair and objective. An impartial jury is also one who is willing and able to return a verdict solely on the evidence presented at this trial in this courtroom and the law applicable to that evidence as I will give it to you in my instructions at the end of the trial. An impartial jury must be able to disregard and set aside all prejudice, sympathy, ideas, notions or beliefs about the law or the case which they have previously encountered. An impartial jury must be able to set aside and disregard anything they may have previously heard or read about the case before coming into the courtroom this morning. In other words, as I have previously mentioned, an impartial jury is a jury composed of 12 impartial" }, { "docid": "6185923", "title": "", "text": "particularly since one standard provides that a prospective juror who has been exposed to significant pretrial information “shall be subject to challenge for cause without regard to the prospective jur- or’s testimony as to the state of his mind.” In effect this requires a per se disqualification of jurors based upon exposure to pretrial publicity. Such a per se rule would make it virtually impossible to obtain a jury in a case that in this day of modern journalism may be the subject of extensive mass media publicity. Such publicity underscores the court’s duty to question jurors on the voir dire with painstaking care to assure the defendants an impartial jury and a fair trial. Publicity, in and of itself, does not foreclose a fair trial. The courts do not function in a vacuum and jurors are not required to be totally ignorant of what goes on about them. We live in a world of reality. As recently stated by our Court of Appeals: Jurors need not be totally ignorant of a defendant in order to be fair and unbiased. See Dobbert v. Florida, 432 U.S. 282, 302 [97 S.Ct. 2290, 2302-03, 53 L.Ed.2d 344] (1977); Murphy v. Florida, 421 U.S. 794, 798-800 [95 S.Ct. 2031, 2035-2036, 44 L.Ed.2d 589] (1975). Even where a prospective juror has formed some preconceived opinion as to the guilt of the accused in the case on trial the juror is sufficiently impartial if he or she can set aside that opinion and render a verdict based on the evidence in the case. Murphy v. Florida, 421 U.S. at 799-800 [95 S.Ct. at 2035-2036]; Irvin v. Dowd, 366 U.S. 717, 722-23 [81 S.Ct. 1639, 1642-43, 6 L.Ed.2d 751] (1961); United States v. Murray, 618 F.2d 892, 899 (2d Cir.1980). The determination of a prospective jur- or’s qualification as a fair and impartial juror is to be determined upon the voir dire. The motion to apply the standard proposed by the American Bar Association is denied. (b) The defendant moves that his attorney be permitted to conduct the voir dire as authorized by Rule 24(a) of" }, { "docid": "14321409", "title": "", "text": "but on the Government’s possible rebuttal case. The Court cannot wait until after trial has commenced to contemplate such a contingency. It is the Court’s responsibility to assess the possible prejudicial effect of pretrial publicity based upon the possibility that evidence connecting Salim to terrorism may be presented. Having done so, the Court concludes that the Defendant does not meet the high standard necessary to establish presumed prejudice so that careful voir dire questioning and other methods aimed at garnering a fair trial are rendered futile. Defendant’s own consultant found that the Survey demonstrates that “[u]nlike the situation in the Oklahoma bombing,.. .here neither the defendant nor even the crime with which he is charged is'well known” and that survey results “made it difficult for [the consultant] to justify that need [to change venue] to the Court.” Aff. ¶ 3. Professor Bronson also makes clear that “not that many actual New York jurors are likely to recall that Mr. Salim is facing the [embassy] bombing charges.” Aff. ¶ 18. The Survey reported that New York respondents were slightly over twice as likely to have been personally affected by the tragic events of September 11, 2001 (at 58%) and the Report discussed the implication that connection might have for an individual faced with serving as an impartial juror in the instant trial. However, Professor Bronson’s observation that “[j]u-rors who were personally affected by the events of September 11 are an obvious risk to the fair trial rights of Mr. Salim” (Aff.H 18), does not mandate a change of venue in and of itself. In questioning potential jurors, it is not the fact that they may have been personally affected by the events of September 11, 2001 that is dis-positive; it is their sworn response whether that connection makes it difficult for them to be fair and impartial jurors for the parties in this case. Precautions can function to assure the selection of an unbiased jury. Specifically, careful voir dire questioning on this topic, accompanied by the assembling of a jury pool significantly larger than the normal size, will be sufficient in" }, { "docid": "7194024", "title": "", "text": "selected is as fair and impartial a Jury as could be obtained. (Tr. at 291) We now hold, both for the reasons set forth above and for one additional reason set forth below, that the trial judge did not abuse his discretion in the handling of jury selection in this trial. Defendants have adduced no proof that this was a biased jury. At the en banc hearing of this case, the author of this opinion asked lead counsel for Governor Blanton whether there was evidence of jury bias. The response was made wholly in relation to one juror and cited evidence which we deem quite inconclusive. We have searched this record for any other such evidence pertaining to periods before, during, or posttrial and have found none. For the reasons set forth above, we believe that the jury selection process, although not perfect, was nonetheless both fair and effective in that it resulted in an impartial jury. We find no merit as to other issues, and in this regard adopt the panel opinion’s dispositions for the reasons stated therein. The judgment of the District Court is affirmed. CORNELIA G. KENNEDY, Circuit Judge. I write separately only to highlight what I consider to be the significant fact that defense counsel never complained to the District Court about the group nature of the inquiry of the first group of prospective jurors into whether they could lay aside any impressions or opinions that they may have formed and render a verdict based solely on the evidence presented in court. Defense counsel did unsuccessfully assert a right to participate in the voir dire examination. There is no evidence, however, that defense counsel ever requested an individual voir dire by the judge on the question of the jurors’ ability to lay aside any impressions or opinions that they may have formed. Moreover, there is every indication on the record that the trial judge would have complied with such a request had it been made. Whenever a prospective juror indicated that she or he had formed some opinion concerning the guilt or innocence of the defendants," }, { "docid": "22855897", "title": "", "text": "a juror whose initial responses prove less than satisfactory and offers potential jurors the opportunity to speak with the court privately. In this case, several jurors were indeed questioned individually, when it appeared necessary. A review of the jury selection process reveals that the trial court was quite fair to the defendant. The court granted all of the defense’s challenges for cause. When the government and the defense both used a peremptory challenge on the same juror, the court counted it as a challenge for cause. Moreover, Bakker used only nine of his ten peremptory challenges. At the end of the voir dire, Bakker’s counsel even expressed his satisfaction with the jury designated to hear the case. In an era of rapid and widespread communications, trial courts must be vigilant to ensure that jurors are not biased and trials are not compromised by media attention surrounding a case. At the same time, “it is not required ... that jurors be totally ignorant of the facts and issues involved.... It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.” Irvin v. Dowd, 366 U.S. 717, 722-23, 81 S.Ct. 1639, 1642-43, 6 L.Ed.2d 751 (1961). The proper way to impanel such jurors is through a careful voir dire like that conducted by the trial court here. When combined with other precautions taken by the trial court, the voir dire guaranteed to Bakker a fundamental Sixth Amendment right: that a defendant, regardless of his standing in the community or the repugnance of his crimes, will have his case heard fairly and impartially by his peers. 3. As a final point related to publicity, Bakker argues that the trial court’s refusal to grant his motion to sequester the jury unjustifiably exposed the jury to influence from the media and public opinion. The decision on whether to sequester the jury is committed to the sound discretion of the trial judge because that court is in the best position to assess the environment surrounding a trial and the ability of jurors to" }, { "docid": "9382249", "title": "", "text": "prejudice from the pre-trial publicity could be and was eliminated through the voir dire. As the authoring justice stated: In the instant case, the trial court questioned each of the prospective jurors thoroughly on voir dire as to their actual recollection of the pre-trial publicity, their ability to remain impartial and to render a verdict based solely on the evidence. The court excused three jurors for cause when they candidly admitted that they had already formed an opinion about the case. In Irvin v. Dowd [citation omitted], the Supreme Court of the United States recognized that “[t]o hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.” [citation omitted]. Washington, 121 Ill.App.3d at 487, 76 Ill.Dec. at 901, 459 N.E.2d at 1036. The court observed that the newspaper articles were primarily factual and appeared mostly in the first several days following the incident. It added that the trial judge had properly admonished the jury not to read any newspaper accounts or listen to radio or television accounts of the case, and required any juror inadvertently exposed to media coverage to convey that fact to the trial judge for further questioning. In view of these precautions and the voir dire, the state appellate court concluded that the trial judge did not abuse his discretion in allowing defendant’s trial to proceed almost five months after his arraignment and therefore that the court had not deprived defendant of his right to an impartial jury. In the district court, the magistrate held that the Appellate Court of Illinois had properly disposed of this matter and therefore rejected Washington’s claim that there should have been a continuance to avoid a biased jury. We agree with both the district court and the Appellate Court of Illinois that the denial of the motion for a" }, { "docid": "22354970", "title": "", "text": "facts and issues involved. “To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.” A defendant’s right to a fair trial is violated only if he shows that “the trial atmosphere was ‘utterly corrupted by press coverage.’ ” Therefore, even if inflammatory pretrial publicity did saturate the community, raising a presumption of prejudice to the defendant, the government can usually rebut this presumption through voir dire that ferrets out such prejudice. In this case, to the extent that the district court focused on prejudice to the government, it failed to give Lipscomb any opportunity to rebut that presumption through voir dire. The exception to this rebuttable-pre-sumption rule regarding prejudicial publicity was announced by the Supreme Court in Rideau v. Louisiana, in which a defendant’s uncounselled, taped confession had been broadcast three times to two-thirds of a small community, rendering the venire pool presumptively prejudiced against him, so that confirmation of this prejudice through voir dire was not necessary. From Rideau we derived the following rules for habeas cases: where petitioner adduces evidence of inflammatory, prejudicial pretrial publicity that so pervades or saturates the community as to render virtually impossible a fair trial by an impartial jury drawn from that community, jury prejudice is presumed and there is no further duty to establish bias. Given that virtually every ease of any consequence will be the subject of some press attention, however, the Rideau principle of presumptive prejudice is only rarely applicable, and is confined to those instances where the petitioner can demonstrate an extreme situation of inflammatory pretrial publicity that literally saturated the community in which his trial was held. Despite this standing caution against presuming prejudice, the trial court in this case essentially created out of whole cloth a Rideau exception for cases in which publicity is" }, { "docid": "14321410", "title": "", "text": "respondents were slightly over twice as likely to have been personally affected by the tragic events of September 11, 2001 (at 58%) and the Report discussed the implication that connection might have for an individual faced with serving as an impartial juror in the instant trial. However, Professor Bronson’s observation that “[j]u-rors who were personally affected by the events of September 11 are an obvious risk to the fair trial rights of Mr. Salim” (Aff.H 18), does not mandate a change of venue in and of itself. In questioning potential jurors, it is not the fact that they may have been personally affected by the events of September 11, 2001 that is dis-positive; it is their sworn response whether that connection makes it difficult for them to be fair and impartial jurors for the parties in this case. Precautions can function to assure the selection of an unbiased jury. Specifically, careful voir dire questioning on this topic, accompanied by the assembling of a jury pool significantly larger than the normal size, will be sufficient in detecting and eliminating any prospective jurors prejudiced by their personal connection to September 11,2001. Finally, the Survey emphasizes what has since become apparent, that the events of September 11, 2001 have had the unfortunate effect of increasing the prejudice and animosity towards Arab nationals nationwide. The Survey found that New York respondents’ belief that it would be “hard” for New York jurors to be fair to an Arab national charged in an attack against a correctional officer was at 49.6%, while the average of the other five districts was 84.9%. These results, particularly with a difference of only 14.7% , does not translate into a finding of special prejudice in New York City against Arab nationals such that no New York juries can be empaneled which could be fair and impartial. While Defendant is correct that indeed, the tragedy has evoked a veritable “tidal wave” of passions (Def. Mem. Law at 6), and while New York residents are particularly hard hit because of the destruction of the World Trade Center and considerable loss of loved" }, { "docid": "11240254", "title": "", "text": "in his examination of the panel of jurors on the “voir dire,” to determine whether the publicity has so impressed them that they will not be able to give the defendant a fair trial, is an important consideration. The defendants who went to trial, Miranti, Bando and Leo Telvi moved at the trial for a change of venue to the District of Columbia. They did not ask for a postponement. Their contention was that because of the publicity in the Southern District of New York the defendants could not get a fair trial here. On the first “voir dire” in selecting the jury, eleven of the prospective jurors were excused. On a second “voir dire” twenty-three additional members of the jury panel were excused. From those who remained of a panel of sixty, a jury was selected. As an indication of the care exercised in selecting the jury, the trial judge had before him eight pages of questions from defendants’ attorneys to put to the prospective jurors. More than 150 pages of the stenographer’s minutes deal with the selection of the jury. The trial judge conducted the examination of the prospective jurors pursuant to Rule 24, Fed.Rules Cr.Proc. 18 U.S.C. All subdivisions of that rule were complied with. Specifically the trial judge asked the jurors — “Do any of you have the slightest doubt in your minds that you will be able to serve conscientiously, fairly and impartially in this case?” The trial judge then denied defendants’ motion for a change of venue with this statement: “I have not the slightest doubt as to the capacity of this jury as presently constituted to serve impartially, objectively and fairly in determining the issues of this case.” There is no good reason why we should substitute our judgment for that of the trial judge. He had an opportunity to observe the panel of jurors during the selection of the trial jury. The jurors who tried the case rendered a just verdict. The evidence to support the verdict was conclusive. Counsel on this appeal do not attack the jurors as biased or prejudiced." }, { "docid": "4412050", "title": "", "text": "some way with Edmond or his co-defendants that were published during the five-month period between Edmond’s arrest and the beginning of appellants’ trial, and they point out that some reports linked Edmond and other appellants to Colombian drug cartels and as many as 30 homicides. In the wake of such publicity, appellants contend, the District Court’s manner of conducting voir dire, which consisted of administration of the previously discussed questionnaire followed by generalized questioning of groups of prospective jurors, was inadequate to ensure that the jury ultimately impaneled was free from prejudice against the defendants. Although we agree that the voir dire with respect to pretrial publicity was imperfect, we reject appellants’ argument that the shortcomings in the trial judge’s inquiry were so serious as to constitute an abuse of discretion under the circumstances of this ease. The Sixth Amendment right to jury trial “guarantees to the criminally accused a fair trial by a panel of impartial, ‘indifferent’ jurors,” but it does not require “that the jurors be totally ignorant of the facts and issues involved.” Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961). Rather, “[i]t is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.” Id. at 723, 81 S.Ct. at 1643. Our cases recognize that protection of this right “demands that voir dire examination serve as a filter capable of screening out” those jurors whose prejudice against the defendants renders them incapable of performing this function. United States v. Liddy, 509 F.2d 428, 434 (D.C.Cir.1974) (en banc), cert. denied, 420 U.S. 911, 95 S.Ct. 833, 42 L.Ed.2d 842 (1975). “Without an adequate voir dire the trial judge’s responsibility to remove prospective jurors who will not be able impartially to follow the court’s instructions and evaluate the evidence cannot be fulfilled.” Rosales-Lopez v. United States, 451 U.S. 182, 188, 101 S.Ct. 1629, 1634, 68 L.Ed.2d 22 (1981) (plurality opinion). Despite the significance of voir dire as a safeguard against juror bias, however, the trial judge’s administration of this process" }, { "docid": "3445515", "title": "", "text": "moving the trial from Duluth to Minneapolis; assembling a jury pool of 196, three times the normal size; expanding the area from which the pool was drawn to the entire State but excluding the Fifth Division, where Poirier was abducted; mailing questionnaires to the prospective jurors inquiring about their exposure to pretrial publicity; and increasing the number of peremptory strikes for each side. The court did not abuse its discretion in denying Blom’s pretrial motion for change of venue. See Green, 983 F.2d at 102 (“it is preferable for the trial court to await voir dire before ruling on motions for a change of venue”). During voir dire, counsel and the district court focused on the impact of pretrial publicity, and Blom renewed his motion for a change of venue at the conclusion of the extensive voir dire. Therefore, we must proceed to the second tier of our analysis and determine whether the jury-selection process established an inference of actual prejudice. We must “independently evaluate the voir dire testimony of the impaneled jury in order to determine whether an impartial jury was selected, thus obviating the necessity for a change of venue.” McNally, 485 F.2d at 403 (quotations omitted). The district court conducted three days of individualized voir dire of seventy-five prospective jurors. The court struck thirty-seven for cause. Most of the strikes were based upon the juror’s knowledge of and reactions to pretrial publicity. Fourteen jurors and alternates were selected. All had at least some knowledge that Blom was connected with or accused of Katie Poirier’s abduction. Four knew of his prior confession. Seven had seen some publicity about this federal firearm charge. Five said they had learned something about Blom’s prior felonies from the media. Each juror and alternate stated that he or she understood the state kidnapping and murder charges were separate from this case. Each declared he or she could put aside all pretrial publicity, recognize the presumption of innocence in Blom’s favor, and render an impartial verdict based solely on the evidence presented at trial. The district court explained that the parties would stipulate to" }, { "docid": "21603478", "title": "", "text": "467 U.S. 1025, 1038, 104 S.Ct. 2885, 2892, 81 L.Ed.2d 847 (1984). This is so because the issue is essentially one of credibility, where the demeanor of the prospective jurors becomes relevant. Id. Therefore, so long as there is fair support in the record for the state court’s conclusions regarding the jurors’ impartiality, those conclusions should not be overturned in habeas proceedings. Id. Upon review of the voir dire, there is no doubt that many of those seated on the jury had knowledge either of facts regarding the Bryant case, which facts were ultimately ruled inadmissible, or of facts regarding the Stumpp case as told in media reports. However, knowledge of irrelevant or prejudicial facts is not dispositive, for “the accused is not entitled to an ignorant jury, just a fair one.” Simmons, 814 F.2d at 510. “It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.” Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1643, 6 L.Ed.2d 751 (1961). After extensive voir dire, all those ultimately seated stated that they could lay aside any impression gained from the media and decide the case solely on the evidence presented. Furthermore, none of the twelve jurors claimed to have a definite preconceived opinion as to Snell’s guilt. Based on these statements, the trial court concluded that those seated as jurors were qualified. As noted above, this is not a ease where the pretrial publicity was so inflammatory and pervasive “as to make juror’s claims of impartiality unbelievable.” Simmons, 814 F.2d at 511. Nor does the record demonstrate such hostility within the venire that “even the few jurors who claim to be able to disregard what they have heard must be presumed to have been irretrievably poisoned by the publicity.” Id. A general voir dire was initially conducted in which many veniremen were questioned and eight were excused for bias. After the general questioning, individual voir dire began. Of the forty-one prospective jurors individually qúes-tioned, ten were excused because they had formed an opinion or knew" }, { "docid": "3578424", "title": "", "text": "re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955). Sensitive to the risk of prejudicial publicity, Judge Sifton exercised care to assure appellants a fair trial. In conducting the voir dire, the District Judge carefully and thoroughly examined prospective jurors. At the request of the defense, he questioned members of the venire individually, thereby insulating prospective jurors from publicity to which others may have been exposed. Each juror was questioned in detail regarding exposure to media coverage of appellants or the FALN. Jurors acknowledging familiarity were probed as to whether they could decide appellants guilt solely on the basis of evidence introduced at trial. As a result of suspected or admitted bias, Judge Sifton excused ten prospective jurors. Appellants raised no substantial objections to Judge Sifton’s voir dire questioning, nor proposed additional lines of inquiry in the hope of ferreting out hidden bias. Appellants appear to fault the trial court’s failure to impanel a trial jury completely unfamiliar with the FALN. While jurors who have formed definitive opinions about a defendant’s guilt or innocence must be excused, there is no constitutional requirement that jurors come to a trial without any knowledge of the facts and issues involved. Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1643, 6 L.Ed.2d 751 (1961). Such a standard would unduly impair the Government’s ability to prosecute individuals of even limited public notoriety. “It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on evidence presented in court.” Id. at 723, 81 S.Ct. at 1643. We find no abuse of discretion in the District Court’s refusal to grant a continuance. It is doubtful whether a continuance would have so significantly reduced the effects of publicity or the need for allegedly prejudicial security precautions as to warrant compromising the public interest in prompt disposition of criminal charges. See, e.g., Hilbert v. Dooling, 476 F.2d 355, 358 (2d Cir.), cert. denied, 414 U.S. 878, 94 S.Ct. 56, 38 L.Ed.2d 123 (1973). Whenever conducted, appellants’ trial in the Eastern District of New York would" } ]

[ { "docid": "18602404", "title": "", "text": "the public welfare by protecting the public from injury by product use ... involving drugs, devices, and cosmetics.” § 499.002(1), Fla.Stat. (1993). Section 499.004 charges the Department of Health and Rehabilitative Services with administration and enforcement of the Act. The Department is given the authority to impose administrative fines, and to maintain an action in the name of the state for injunction or other process to enforce the provisions of the Act. § 499.066(2), (3), Fla.Stat. (1993). Legislative intent, as evidenced by the language and structure of the Act, does not support the conclusion that the Florida Drug and Cosmetic Act impliedly provides a private cause of action. Therefore, the defendant’s motion to dismiss Count VII of the complaint is GRANTED, and it is DISMISSED. E. Punitive Damages. Finally, the defendant has moved to strike the plaintiffs’ demand for punitive damages contained in all counts of the complaint on the grounds that the plaintiffs have not complied with Florida’s requirements for punitive damages. Specifically, Section 768.72, Florida Statutes (1993), provides: In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages____ The statute’s meaning is no longer in question. “By its clear terms, the statute requires the [plaintiff] to make a showing by proffer or through evidence in the record that some reasonable basis exists to support recovery of punitive damages before the trial court permits a pleading requesting such damages.” Wolper Boss Ingham & Co. v. Liedman, 544 So.2d 307, 308 (Fla. 3d DCA 1989). The plaintiffs have not identified anything in the record, nor have they alleged factual matters, that would support an award of punitive damages under the law of Florida. Instead, the complaint contains only a legally insufficient conclusory allegation that the defendant acted “deliberately and maliciously and was guilty of wanton disregard of the rights of the Plaintiff.” See Bankest Imports, Inc. v. ISCA Corp., 717 F.Supp. 1537 (S.D.Fla.1989). Accordingly, the motion to strike the demand for" } ]

[ { "docid": "20151879", "title": "", "text": "complaint,” NAL II, Ltd, v. Tonkin, 705 F.Supp. at 528, it makes no reference as to when such damages are to be set forth in the complaint. It only requires that, when plead, they be plead specifically. Conceivably, a state statute could allow a right of action to punitive damages to accrue only six months after the filing of a lawsuit or only after a plaintiff prevailed on its underlying compensatory claim. Neither these delays in the pleading of punitive damages nor that engendered by § 768.72’s requirement of some minimum reasonable basis determination directly conflicts with Rule 9(g). The specificity required by 9(g) has no more effect on the timing of a state punitive damage claim than Rule 3 does on the tolling of a state statute of limitation. The Florida statute, however, does directly and irreconcilably conflict with Federal Rule 8. Rule 8(a)(2) provides that a plaintiffs complaint establishes a claim by setting forth “a short and plain statement of the claim showing that the pleader is entitled to relief.” Section 768.72 obviously requires much more than a mere “short and plain statement” for establishing a punitive damage claim in that it necessitates 1) the presentation of evidence in the record or proffered by Plaintiff to demonstrate that there exists a reasonable basis for a punitive damage claim and 2) court review and determination that Plaintiffs evidentiary proffer meets the statute’s “reasonable basis” standard. The only way to avoid recognizing a direct conflict is to argue that Rule 8 is a floor for pleading claims and not a ceiling. See Kuehn v. Shelcore, Inc. 686 F.Supp. at 234. While a strict reading of Rule 8’s language that “[a] pleading which sets forth a claim for relief ... shall contain ... a short and plain statement ...” does not preclude the imposition of pre-pleading requirements, it is irrefutably clear from its history and interpretation that Rule 8 is the sole and full requirement for stating entitlement to relief in federal courts. Rule 8 represents a paring down of other functions pleadings have historically fulfilled. Under the Federal Rules, discovery" }, { "docid": "2566090", "title": "", "text": "of SAI that the Exchange would occur, nor is there any indication that PMM took any affirmative actions to facilitate the Exchange. Accordingly, PMM cannot be held liable under Florida common law for any negligent conduct which may have oc curred in reference to the information it disseminated which Plaintiffs may have relied upon in participating in the 1988 Exchange Offer. C. Conspiracy Plaintiffs in B.F. Enterprises assert a common law conspiracy claim against all Defendants. In order to state a cause of action for conspiracy in Florida, a plaintiff must allege: (1) an agreement between two or more people to achieve an illegal objective, (2) an overt act in furtherance of the conspiracy, and (3) injury. Armbrister v. Roland Intern. Corp., 667 F.Supp. 802, 809 (M.D.Fla.1987). Having determined that the allegations in support of Plaintiffs’ claim for a RICO conspiracy are ample and further, finding that several overt acts committed to foster the alleged conspiracy have been set forth, the Court declines to dismiss this state law claim. D. Punitive Damages Defendants Bodden and Logal move to strike Plaintiffs’ demand for punitive damages in Count IV of the Feld Consolidated Amended Class Action Complaint, arguing that Plaintiffs have not complied with Florida Statute § 768.72, which requires there to be evidence in the record or proffered by Plaintiffs establishing a reasonable basis for such damages before a claim for punitive damages may be asserted. Defendants are mistaken that § 768.72 applies to this case, however. This Court has recently held in State of Wisconsin Investment Board v. Plantation Square Associates, Ltd., 761 F.Supp. 1569 (S.D.Fla.1991), that the Supreme Court’s analysis in Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965), compels the conclusion that the pleading of punitive damages in an action filed in federal court is governed by the provisions of Federal Rule of Civil Procedure 8(a), which requires only “a short and plain statement of the claim showing that [the plaintiff] is entitled to relief,” and not by Fla.Stat. § 768.72, which irreconcilably conflicts with the notice pleading requirement of Rule 8(a). Accordingly," }, { "docid": "20151899", "title": "", "text": "of § 768.72 Under normal circumstances, application of § 768.72’s discovery provision will likely come before the court in the guise of a motion for protective order by the defendant or on a motion to compel or for leave to seek discovery of financial worth by the plaintiff. Here, Plaintiff, in opposing the defendants’ motion to dismiss its punitive claim, has submitted a proffer of evidence. Plaintiff’s proffer reasonably supports the assertions in its Complaint that, prior to purchasing three South Florida shopping centers, SWIB was fraudulently deceived as to the number and extent of side agreements existing between the various limited partnerships and the shopping centers’ tenants, that the number and extent of the undisclosed side agreements caused Plaintiff to substantially overvalue the centers— and that the deceptions were willfully and wantonly perpetrated to cause Plaintiff’s overvaluation. Accordingly, Plaintiff is entitled to seek discovery of the defendants’ financial worth. In reaching this finding, the court has resisted applying the statute as a summary judgment adjudication, which is what the parties apparently have sought to undertake. The Plaintiff’s submission of exhibits to substantiate its claim has elicited a barrage of briefs and counter-proffers of evidence by the defendants seeking to disprove SWIB’s claim largely by arguing their own evidence. The court seriously doubts that the statute intended such a fact-intensive investigation into the merits of Plaintiff’s punitive claim. Without attempting to determine precisely what type of showing is required by § 768.72, the court believes it must ultimately be a lesser standard than that required for summary judgment. Though the burden is on SWIB to survive a § 768.72 challenge of insufficiency, see Will v. Systems Engineering Consultants, 554 So.2d 591, 592 (Fla.App. 3 DCA 1989), the standard of proof required merely to assert Plaintiff’s punitive claim must be lower than that needed to survive a summary adjudication on its merits. As the Florida courts have noted, a § 768.72 challenge more closely resembles a motion to dismiss that additionally requires an evidentiary proffer and places the burden of persuasion on the plaintiff. Id. In considering a motion to dismiss," }, { "docid": "9546571", "title": "", "text": "money is to be kept for the party making the depos-it_” Id. at 648. No such agreement existed between Defendant ISCA and the Plaintiff. As the instant dispute is essentially an action for breach of a contract to pay money; it is not an action in conversion. Accordingly, it is the opinion of this Court that Count IX of Defendant’s Counterclaim should be dismissed. Punitive Damages Plaintiff has filed a Motion to Strike Defendant’s request for punitive damages for failure to comply with the pleading requirements set forth in Section 768.72, Florida Statutes. Upon review of this matter, it is the opinion of this Court that Plaintiff’s Motion to Strike should be GRANTED. A federal court sitting in diversity must apply federal law to matters of procedure and state law to matters of substance. Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). The Federal Rules of Civil Procedure contemplate liberal notice pleading by the parties. Under the Federal Rules, a complaint need only contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Courts, however, have abrogated these liberal pleading requirements when greater specificity is required. Section 768.72, Florida Statutes (1987), represents such a departure from the liberal requirements of notice pleading. Florida Statute Section 768.72 requires that a Plaintiff plead with greater specificity when asserting a claim for punitive damages. Florida courts have held that this statute is substantive in nature and, thus, should be applied by a federal court in Florida, sitting in diversity. Smith v. Department of Ins., 507 So.2d 1080 (Fla.1987). Accordingly, Plaintiff in the instant case is bound by the more stringent pleading requirements of Section 768.72. Upon review of Defendant’s Counterclaim, it is evident that Defendant has failed to comply with the special pleading requirements of Section 768.72. Defendant has merely set forth conclusory allegations, and has failed to allege facts sufficient to entitle it to recover punitive damages. Absent compliance with these pleading requirements, Defendant is not entitled to maintain a claim for punitive damages. Accordingly, this Court" }, { "docid": "7626414", "title": "", "text": "ORDER DENYING MOTION TO STRIKE RYSKAMP, District Judge. THIS CAUSE came before the Court upon defendants’ Motion to Strike Claims for Punitive Damages [DE 36], filed May 22, 1997. Plaintiffs have moved for an extension of time to file a responsive memorandum. Upon review of the issue presented in defendants’ motion, the Court concludes that the motion must be denied, thus obviating any need for plaintiffs to file a response. Defendants’ motion raises a single issue that has divided the judges of the Southern District of Florida for some time. Defendants argue that plaintiffs’ demand for punitive damages should be stricken because it fails to comply with the pleading requirements of section 768.72 of the Florida Statutes. This District’s judges have reached differing issues as to whether the statute’s pleading requirement should apply in federal diversity actions. The undersigned has briefly considered this issue on previous occasions. In Frio Ice, S.A. v. SunFruit, 724 F.Supp. 1373, 1383 (S.D.Fla.1989), rev’d on other grounds, 918 F.2d 154 (11th Cir.1990), the undersigned assumed, without discussion, that section 768.72 does apply in diversity eases. In more recent unpublished opinions, however, the Court followed what appeared to be the majority position in the Southern District, and held that the statute’s pleading requirement does not bind federal litigants. See Fletcher v. North River Shores Property Owners’ Ass’n, Inc., Case No. 96-14124-CIV-RYSKAMP (Order Denying Motion to Strike, September 19, 1996); Taylor v. Lee, Case No. 96-8170-CIV-RYSKAMP (Omnibus Order, March 12, 1997). Due to the frequent recurrence of this issue, and the fact that the Eleventh Circuit may never have the opportunity to resolve it, the Court believes that a full discussion of section 768.72’s application in diversity actions is warranted. Section 768.72 provides as follows: In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages. The claimant may move to amend his complaint to assert a claim for punitive damages as allowed by the rule of civil procedure." }, { "docid": "7626416", "title": "", "text": "The rules of civil procedure shall be liberally construed so as to allow the claimant discovery of evidence which appears reasonably calculated to lead to admissible evidence on the issue of punitive damages. No discovery of financial worth shall proceed until after the pleading concerning punitive damages is permitted. The Florida Supreme Court has “read 768.72to create a substantive legal right not to be subject to a punitive damages claim and ensuing financial worth discovery until the trial court makes a determination that there is a reasonable evidentiary basis for recovery of punitive damages.” Globe Newspaper Co. v. King, 658 So.2d 518, 519 (Fla.1995); see also Smith v. Department of Insurance, 507 So.2d 1080, 1092 n. 10 (Fla.1987) (section 768.72creates substantive rights). Thus, if the statute applies at the pleading stage, plaintiffs demand for punitive damages must be stricken. Several courts have recognized that section 768.72contains two requirements, one concerning pleading and the other concerning discovery. As Judge Hurley recently noted in Teel v. United Technologies Pratt & Whitney, 953 F.Supp. 1534, 1536 (S.D.Fla.1997), the judges of the Southern District of Florida have unanimously agreed that the discovery portion of the statute applies as substantive law for claims in federal court. The Court finds no reason to disagree with this analysis at this juncture, but would simply remark that the substantive right to be free from financial discovery absent a proper pleading of punitive damages means very little if the liberal standards of the Federal Rules of Civil Procedure, and not the first half of section 768.72, govern at the threshold stage. At present, however, the Court need only decide whether the statute’s pleading requirement applies to federal litigants. It is of course old hat that the day of the “brooding omnipresence in the sky” has passed and that federal courts sitting in diversity must apply the common and statutory law of the relevant state. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Indeed, as applied to state statutes such as section 768.72, this precept predates even Erie, which only overruled Swift" }, { "docid": "20151902", "title": "", "text": "fact, Plaintiff has failed to respond in any manner to the defendants’ attempt to void the claim for fees. Accordingly, defendants’ motion to dismiss SWIB’s claim for attorney fees shall be granted. ORDER For the foregoing reasons, it is hereby ORDERED and ADJUDGED that the defendants’ motion to dismiss Plaintiff’s claim for punitive damages is DENIED as the pleading provisions of Florida Statutes § 768.72 shall not be given effect by this court. It is further ORDERED and ADJUDGED that the discovery provision of Florida Statutes § 768.72 shall be given effect by this court and that Plaintiff has met that provision’s standard for obtaining discovery of the defendants’ financial worth. It is further ORDERED and ADJUDGED that the defendants’ motion to dismiss Plaintiff’s claim for attorney fees is GRANTED. . These motions include the Wenal Defendants’ Motion to Strike Claim for Punitive Damages and Attorneys’ Fees, Plaintiff's Proffer of Evidence Pursuant to Florida Statutes § 768.72, the Wenal Defendants’ Response to Plaintiffs Proffer, the Zaremba Defendants' Memorandum in Opposition to Plaintiffs Proffer, Plaintiff’s Motion to Strike Memoranda in Opposition to Plaintiffs Proffer of Evidence, the Wenal Defendants’ Response to Plaintiff’s Motion to Strike, the Zaremba Defendants’ Memorandum in Opposition to Plaintiff’s Motion to Strike, and Plaintiffs Reply Memorandum in Support of Motion to Strike Defendants’ Memoranda. . The Wenal Defendants have also moved to dismiss Plaintiff's punitive damage claim on the grounds that such damages are unavailable under Plaintiff’s breach of contract and constructive trust theories. Plaintiff, however, only seeks punitive damages under its fraud claim. Plaintiff’s Motion to Strike Memorandum in Opposition to Plaintiff’s Proffer at 2. The Wenal Defendants have further argued that Plaintiff cannot seek punitive damages where its fraud claim is merely a contract claim by another name and where punitive damages are not allowed for breach of contract. This argument is unavailable to the defendants in light of this court’s Order dated January 8, 1990, finding Plaintiff to have alleged a fraud claim distinct and independent from its breach of contract claim. Order Denying Motion to Dismiss at 4. . The Act provides in" }, { "docid": "20151875", "title": "", "text": "a rule of discovery. B. The Pleading Aspects of § 768.72 Since the statute’s adoption in 1986, other district courts in Florida have addressed the issue of whether § 768.72 is procedural or substantive under the Erie doctrine. With the notable exception of Citron v. Armstrong World Industries, Inc., 721 F.Supp. 1259 (S.D.Fla.1989), all reported cases have applied § 768.72 as substantive State law in federal diversity actions. See Bankest Imports, Inc. v. ISCA Corp., 717 F.Supp. 1537 (S.D.Fla.1989); Frio Ice, S.A. v. Sunfruit, 724 F.Supp. 1373 (S.D.Fla.1989); Lancer Arabians, Inc. v. Beech Aircraft Corp., 723 F.Supp. 1444 (M.D.Fla.1989); Dah Chong Hong Ltd. v. Silk Greenhouse, Inc., 719 F.Supp. 1072 (M.D.Fla.1989); Jerry W. Lewis v. Snap On Tools Corp., 708 F.Supp. 1260 (M.D.Fla.1989); McCarthy v. Barnett Bank of Polk County, 750 F.Supp. 1119 (M.D.Fla.1990). In other jurisdictions district courts facing virtually identical state statutes have been more divided in deciding whether to apply the state provision. See NAL II, Ltd. v. Tonkin, 705 F.Supp. 522 (D.Kan.1989) (state statute conflicted with Federal Rules and would not be given effect in federal diversity ease and even if no conflict were found, Erie analysis did not compel application of the state rule); Belkow v. Celotex Corp., 722 F.Supp. 1547, 1551-52 (N.D.Ill.1989), citing Berry v. Eagle-Picher, 1989 WL 77764, 1989 U.S.Dist. LEXIS 7671 (N.D.Ill.1989) (same); Kuehn v. Shelcore, Inc., 686 F.Supp. 233 (D.Minn.1988) (state statute does not conflict with federal rule and should be applied in federal court under Erie analysis); Zeelan Industries, Inc. v. de Zeeuw, 706 F.Supp. 702 (D.Minn.1989) (same); Windsor v. Guarantee Trust Life Ins. Co., 684 F.Supp. 630 (D.Idaho 1988) (same). The court is unaware of any appellate decision which has dealt with the issue now before it. Indeed, because a district court’s decision of whether to apply a state punitive damage pleading rule is not immediately appealable, and because the district court’s ruling would in all likelihood not affect the outcome of the litigation, appeal of such a ruling, though possible in some narrow contexts, has proven elusive as of yet. (1) The Pleading Aspects of § 768.72 Under" }, { "docid": "5720149", "title": "", "text": "ORDER GRANTING MOTION TO STRIKE AND STRIKING WITHOUT PREJUDICE THE PRAYER FOR PUNITIVE DAMAGES ON ALL CLAIMS UNDER FLORIDA LAW HURLEY, District Judge. This matter comes before the court upon a motion to strike. Upon review of the record and the applicable case law, and for the reasons given below, the motion is granted. I. FACTS This litigation concerns alleged incidents of gender harassment against plaintiff Jo-ann Teel by employees of defendant Pratt & Whitney. After this court’s order granting in part a- motion to dismiss, the remaining counts are three: sexual harassment under Title VII; defamation; and invasion of privacy. The latter two of these claims arise under the laws of the state of Florida and are before the court in its supplemental jurisdiction. On both the state law claims, Ms. Teel, prays for punitive damages. Defendant Pratt & Whitney now moves to strike this prayer, pursuant to Rule 12 of the Federal Rules of Civil Procedure, arguing that section 768.72, Florida Statutes (1995), precludes such pleading. II. DISCUSSION A. Section 768.72, Florida Statutes Section 768.72 states the following requirements: In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages. The claimant may move to amend his complaint to assert a claim for punitive damages as allowed by the rules of civil procedure.:.. No discovery of financial worth shall proceed until after the pleading concerning punitive damages is permitted. § 768.72, Fla.Stat. (1995). Ms. Teel appears willing to concede that § 768.72 applies, a view which coincides with other district courts in Florida. However, the applicability of this statute to claims arising under Florida law is a matter of some dispute in the Southern District of Florida. No case from the Eleventh Circuit has resolved the dispute — most likely because a decision to apply or to reject § 768.72 is not immediately appealable and because the harm from an erroneous rejection of the statute falls most heavily on parties" }, { "docid": "8733204", "title": "", "text": "into previously by both parties in settlement of an earlier employment dispute. In count four, plaintiff alleges a common law claim for intentional infliction of emotional distress. Plaintiff seeks consequential damages in count three, and count four includes a prayer for punitive damages and attorney’s fees. The question’ presented by defendant’s motion is whether this Court can or should extend pendant jurisdiction to hear state claims for compensatory and punitive damages in a Title VII case. Initially, the Court notes that defendant does not move to dismiss count two, despite the prayer for punitive damages therein. Rather, defendant moves to strike the claim for punitive damages in count two, arguing correctly that the Florida Human Rights Act of 1977 does not support such relief. Florida’s Human Rights Act of 1977 is patterned in large part after Title VII of the Civil Rights Act of 1964. See School Board of Leon County v. Hargis, 400 So.2d 103, 108 n. 2 (Fla.App.1981). Like Title VII, the state statute includes no mention of punitive damages. Rather, it provides that, upon finding that an unlawful employment practice has occurred, a court “shall issue an order prohibiting the practice, including reasonable attorney’s fees.” Fla.Stat.Ann. § 23.167(13). The omission of punitive damages from this legislation is made all the more glaring when the Act is compared to Florida’s equal pay statute. Section 725.07, Florida Statutes, prohibits discrimination on the basis of race, sex, or marital status in providing “equal pay for equal services,” and permits a victim of such discrimination to recover punitive as well as compensatory damages, along with reasonable attorney’s fees. Fla.Stat.Ann. § 725.07(2). Plaintiff cites no case suggesting that the Florida statute does support a claim for punitive damages. Instead, plaintiff resists the motion to strike on the ground that it is untimely. This argument is without merit. F.R.Civ.P. 12(f). Thus, defendant moves to dismiss counts three and four, the only counts of plaintiff’s complaint that include supportable claims for compensatory and punitive damages, on the ground that the court should not hear such pendant claims in a Title VII suit. Analyzing whether" }, { "docid": "5720171", "title": "", "text": "Rules 8(a)(3) and 9(g) apply. III. DECRETAL PROVISIONS For the foregoing, reasons, it is hereby ORDERED and ADJUDGED as follows: 1. The defendant’s motion to strike is GRANTED. 2. Plaintiffs prayer for punitive damages in the ad damnum clause of the complaint is STRICKEN without prejudice as to all counts arising under Florida law. . Cf. Martin v. Honeywell, Inc., 1995 WL 868604 (M.D.Fla. July 18, 1995) (Bucklew; J.) (holding § 768.72 a substantive limitation on punitive damages which federal courts must apply); Marcus v. Carrasquillo, 782 F.Supp. 593, 600-01 (M.D.Fla.1992) (Kovachevich, J.) (same); Lancer Arabians, Inc. v. Beech Aircraft Corp., 723 F.Supp. 1444, 1446 (M.D.Fla.1989) (Melton, J.) (same); accord, T.W.M. v. American Medical Sys., Inc., 886 F.Supp. 842 (N.D.Fla.1995) (Vinson, J.) (same). But see In re Edgewater Sun Spot, Inc., 154 B.R. 338 (Bankr.N.D.Fla.1993) (reaching opposite conclusion). . Compare Sanders v. Mayor’s Jewelers, Inc., 942 F.Supp. 571 (S.D.Fla.1996) (Lenard, J.); Al-Site Corp. v. VSI Int’l, Inc., 842 F.Supp. 507 (S.D.Fla.1993) (Atkins, J.); Bankest Imports, Inc. v. ISCA Corp., 717 F.Supp. 1537 (S.D.Fla.1989) (Spellman, J.), where judges applied the statute, with Blount v. Sterling Healthcare Group, Inc., 934 F.Supp. 1365 (S.D.Fla.1996) (Ungaro-Benages, J.); Wisconsin Inv. Bd. v. Plantation Square Assocs., Ltd., 761 F.Supp. 1569, 1576-81 (S.D.Fla.1991) (Hoeveler, J.); Kingston Square Tenants Ass’n v. Tuskegee Gardens, Ltd., 792 F.Supp. 1566 (S.D.Fla.1992) (Paine, J.); Citron v. Armstrong World Indus., 721 F.Supp. 1259 (S.D.Fla.1989) (Nesbitt, J.), and cases cited therein, where judges rejected the statute as merely state procedure. . See Citron, 721 F.Supp. at 1262 (citing NAL II., Ltd. v. Tonkin, 705 F.Supp. 522, 529 (D.Kan.1989)). This so-called \"check,” however, invokes hindsight to moot on appeal the very question which the court faces today: whether a party should be spared the threat of punitive damages and related discovery from the very inception of suit. . As noted previously, the Citron court likened § 768.72 to a different statute, § 768.28, Florida Statutes. See Citron, 721 F.Supp. at 1261-61. Section 768.28 requires a six month pre-suit waiting period as part of Florida’s waiver of sovereign immunity in tort actions. This pre-suit waiting period" }, { "docid": "7626423", "title": "", "text": "damage pleading is also in issue in the section 768.72 setting.” Id. Judge Hurley’s position appears to be predicated upon the assumption that a diversity jurisdiction litigant may pursue the following course in seeking punitive damages: first, plead the cause of action in the complaint without demanding punitive damages; second, move the court for an allowance to plead punitive damages; and third, amend the complaint to add the federally required short and plain statement and demand for relief under the federal “free amendment” policy of Rule 15(a). But what is the second step of this waltz if not a mini-complaint for punitive damages? According to Henn, this request for permission to add a punitive damages claim must plead the punitive damages issue in a legally sufficient manner, presumably by alleging facts sufficient to sustain an award of punitive damages. See also McDonald v. Dade County Public Health, 677 So.2d 23, 24 (Fla. 3d DCA 1996) (plaintiff may satisfy 768.72 by making a proffer of evidence sufficient to support claim for punitive damages); Key West Convalescent Center v. Doherty, 619 So.2d 367, 369 (Fla. 3d DCA 1993) (plaintiff must proffer evidence sufficient to support finding that conduct was willful, wanton, and intentional). The net effect of the statute is to create satellite pleadings for punitive damages in which the Federal Rules have no sway, not to mention satellite proceedings to determine the factual propriety of the satellite plead ings. The Court cannot agree that these satellite procedures do not conflict with the liberal standards of Rule 8. The considerations that suggest that section 768.72 conflicts with Rule 8 suggest also that the statute conflicts with Rule 9(g). Rule 9(g) requires a specific statement of items of special damages, which include punitive damages. The rule merely requires that the plaintiff set forth the special damages he seeks; at the pleading stage he need not proffer evidence sufficient to sustain the claim. See Italiano v. Jones Chemicals, Inc., 908 F.Supp. 904, 907 (M.D.Fla.1995) (“Rule 9(g) requires no more than a specific statement that allows Defendants to prepare a responsive pleading and begin their" }, { "docid": "7626415", "title": "", "text": "does apply in diversity eases. In more recent unpublished opinions, however, the Court followed what appeared to be the majority position in the Southern District, and held that the statute’s pleading requirement does not bind federal litigants. See Fletcher v. North River Shores Property Owners’ Ass’n, Inc., Case No. 96-14124-CIV-RYSKAMP (Order Denying Motion to Strike, September 19, 1996); Taylor v. Lee, Case No. 96-8170-CIV-RYSKAMP (Omnibus Order, March 12, 1997). Due to the frequent recurrence of this issue, and the fact that the Eleventh Circuit may never have the opportunity to resolve it, the Court believes that a full discussion of section 768.72’s application in diversity actions is warranted. Section 768.72 provides as follows: In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages. The claimant may move to amend his complaint to assert a claim for punitive damages as allowed by the rule of civil procedure. The rules of civil procedure shall be liberally construed so as to allow the claimant discovery of evidence which appears reasonably calculated to lead to admissible evidence on the issue of punitive damages. No discovery of financial worth shall proceed until after the pleading concerning punitive damages is permitted. The Florida Supreme Court has “read 768.72to create a substantive legal right not to be subject to a punitive damages claim and ensuing financial worth discovery until the trial court makes a determination that there is a reasonable evidentiary basis for recovery of punitive damages.” Globe Newspaper Co. v. King, 658 So.2d 518, 519 (Fla.1995); see also Smith v. Department of Insurance, 507 So.2d 1080, 1092 n. 10 (Fla.1987) (section 768.72creates substantive rights). Thus, if the statute applies at the pleading stage, plaintiffs demand for punitive damages must be stricken. Several courts have recognized that section 768.72contains two requirements, one concerning pleading and the other concerning discovery. As Judge Hurley recently noted in Teel v. United Technologies Pratt & Whitney, 953 F.Supp. 1534, 1536 (S.D.Fla.1997), the" }, { "docid": "7626424", "title": "", "text": "Center v. Doherty, 619 So.2d 367, 369 (Fla. 3d DCA 1993) (plaintiff must proffer evidence sufficient to support finding that conduct was willful, wanton, and intentional). The net effect of the statute is to create satellite pleadings for punitive damages in which the Federal Rules have no sway, not to mention satellite proceedings to determine the factual propriety of the satellite plead ings. The Court cannot agree that these satellite procedures do not conflict with the liberal standards of Rule 8. The considerations that suggest that section 768.72 conflicts with Rule 8 suggest also that the statute conflicts with Rule 9(g). Rule 9(g) requires a specific statement of items of special damages, which include punitive damages. The rule merely requires that the plaintiff set forth the special damages he seeks; at the pleading stage he need not proffer evidence sufficient to sustain the claim. See Italiano v. Jones Chemicals, Inc., 908 F.Supp. 904, 907 (M.D.Fla.1995) (“Rule 9(g) requires no more than a specific statement that allows Defendants to prepare a responsive pleading and begin their defense.”). As with Rule 8, the conflict with section 768.72 arises from the fact that the statute in effect requires a satellite pleading to the court, requesting permission to plead a claim for punitive damages. Contrary to Rule 9(g), this pleading must proffer facts sufficient to support a punitive damages award. Rather than merely stating the special damages the plaintiff hopes to recover, as contemplated by Rule 9(g), section 768.72 requires the plaintiff essentially to survive a summary judgment-type inquiry on the issue of punitive damages at the pleading stage of the litigation. Thus, the Court sees a conflict between Rule 9(g) and section 768.72. In summary, the Court finds that application of section 768.72 in federal court would upset the notice pleading system constructed by Rules 9(g) and 8(a). It would impose on federal plaintiffs pleading burdens heavier than the Supreme Court and Congress intended for them to carry, and require the Court to undertake screening procedures foreign to the scheme of the federal judiciary. Thus, the Court concludes under the first step of" }, { "docid": "11305540", "title": "", "text": "PUNITIVE DAMAGES CLAIMS Plaintiffs seek punitive damages in connection with Counts I, IV, V, VII, IX, XI, XII, XIII, and XIV. Pursuant to Section 768.72, Florida Statutes, in a civil action, ... no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages. The claimant may move to amend his complaint to assert a claim for punitive damages as allowed by the rules of civil procedure. The rules of civil procedure shall be liberally construed as to allow the claimant discovery of evidence which appears reasonably calculated to lead to admissible evidence on the issue of punitive damages. No discovery of financial worth shall proceed until after the pleading concerning punitive damages is permitted. The state trial judge found that the claims of Plaintiffs were subject to the requirements of 768.72, because all of the dates in the complaint were subsequent to the July 1, 1986, effective date of the Act. As to Counts I, IV, V, VII, and IX the complaint, where the question is addressed, asserts that all actions occurred prior to July 1, 1987. The complaint is unclear as to which if any of the actions arose prior to the effective date of 768.72, July 1, 1986. Therefore, the Court concurs with the finding of the state trial judge and finds that, unless Plaintiffs clearly establishes that the claims arose prior to July 1, 1986, the statute applies to this complaint. The Court adopts by reference here Defendants’ motion to dismiss claim for punitive damages as to Counts X through XIV. Plaintiffs response fails to oppose this portion of the motion to dismiss. The Court finds the claim for punitive damages as to Counts X through XIV should be dismissed with prejudice. The claims for punitive damages alleged by Plaintiffs’ four previous complaints have been dismissed. In its order of June 7, 1988, this Court dismissed the punitive damage claims, without prejudice, for failure to support the claims by record evidence. Subsequently, Plaintiffs" }, { "docid": "7626422", "title": "", "text": "with the Federal Rules. In his recent Teel opinion, Judge Hurley found that section 768.72 does not conflict with Rule 8 because Rule 8 specifies the “how” of pleading, but not the “when.” 953 F.Supp. at 1539. In other words, the short and plain statement standard remains in effect, but the plaintiff cannot offer such a short and plain statement until he has made a record showing of facts sufficient to support the claim. Respectfully, the Court believes that this reading misconstrues the outworking of section 768.72. The Florida Supreme Court has made clear that section 768.72 forbids a party even to raise a punitive damages claim in its complaint without prior leave of the Court. Simeon, Inc. v. Cox, 671 So.2d 158, 160 (Fla.1996). Before permitting such a punitive damages claim, the Court must first “make a legal determination that the kind of claim in suit is one which allows for punitive damages under [Florida] law.” Henn v. Sandler, 589 So.2d 1334, 1335-36 (Fla. 4th DCA 1991). Thus, “the legal sufficiency of the punitive damage pleading is also in issue in the section 768.72 setting.” Id. Judge Hurley’s position appears to be predicated upon the assumption that a diversity jurisdiction litigant may pursue the following course in seeking punitive damages: first, plead the cause of action in the complaint without demanding punitive damages; second, move the court for an allowance to plead punitive damages; and third, amend the complaint to add the federally required short and plain statement and demand for relief under the federal “free amendment” policy of Rule 15(a). But what is the second step of this waltz if not a mini-complaint for punitive damages? According to Henn, this request for permission to add a punitive damages claim must plead the punitive damages issue in a legally sufficient manner, presumably by alleging facts sufficient to sustain an award of punitive damages. See also McDonald v. Dade County Public Health, 677 So.2d 23, 24 (Fla. 3d DCA 1996) (plaintiff may satisfy 768.72 by making a proffer of evidence sufficient to support claim for punitive damages); Key West Convalescent" }, { "docid": "5720170", "title": "", "text": "cases where the pleadings exceed the scope of approved discovery. Finally, such a practice may also risk placing a party in non-compliance with the discovery rules pending the court’s ruling on the need to disclose financial worth information. Thus, while it may be possible in theory to divide § 768.72 into a discovery component and a pleading component, no such ready distinction exists in practice. If the statutory right to be free from financial discovery and punitive damages claims is to be given any practical effect in federal court, it must apply to pleading as well. To avoid the forum-shopping and inequitable administration of the law that Erie warns against, § 768.72 must be treated as a substantive its entirety, and the pleading of punitive damages must be guided accordingly. Properly applied, § 768.72 bars a prayer for punitive damages for claims under Florida law unless and until reasonable proof is adduced of an entitlement to such damages. At that time, and only that time, amendment of the pleadings becomes appropriate, and the dictates of Rules 8(a)(3) and 9(g) apply. III. DECRETAL PROVISIONS For the foregoing, reasons, it is hereby ORDERED and ADJUDGED as follows: 1. The defendant’s motion to strike is GRANTED. 2. Plaintiffs prayer for punitive damages in the ad damnum clause of the complaint is STRICKEN without prejudice as to all counts arising under Florida law. . Cf. Martin v. Honeywell, Inc., 1995 WL 868604 (M.D.Fla. July 18, 1995) (Bucklew; J.) (holding § 768.72 a substantive limitation on punitive damages which federal courts must apply); Marcus v. Carrasquillo, 782 F.Supp. 593, 600-01 (M.D.Fla.1992) (Kovachevich, J.) (same); Lancer Arabians, Inc. v. Beech Aircraft Corp., 723 F.Supp. 1444, 1446 (M.D.Fla.1989) (Melton, J.) (same); accord, T.W.M. v. American Medical Sys., Inc., 886 F.Supp. 842 (N.D.Fla.1995) (Vinson, J.) (same). But see In re Edgewater Sun Spot, Inc., 154 B.R. 338 (Bankr.N.D.Fla.1993) (reaching opposite conclusion). . Compare Sanders v. Mayor’s Jewelers, Inc., 942 F.Supp. 571 (S.D.Fla.1996) (Lenard, J.); Al-Site Corp. v. VSI Int’l, Inc., 842 F.Supp. 507 (S.D.Fla.1993) (Atkins, J.); Bankest Imports, Inc. v. ISCA Corp., 717 F.Supp. 1537 (S.D.Fla.1989) (Spellman, J.)," }, { "docid": "20151874", "title": "", "text": "employing federal procedure unless doing so would violate the “twin aims” of Erie: (1) “discouragement of forum-shopping” and (2) “avoidance of inequitable administration of the laws.” Hanna, 380 U.S. at 468, 85 S.Ct. at 1142; Walker, 446 U.S. at 752-53, 100 S.Ct. at 1986. Lundgren, 814 F.2d at 606. Absent scrutiny under these two lines of analysis, deciding when to apply a state rule in federal court becomes a battle of divining rods and crystal balls. With these analyses in mind, then, the court turns its attention to § 768.72. A. The Statute as Both a Pleading Rule and a Discovery Rule Preliminarily, it must be conceded that § 768.72 is both a pleading rule and a discovery rule. The greater part of the statute addresses the standard for pleading a punitive damage claim. However the last sentence, permitting discovery of a defendant’s financial worth only after a punitive damage claim has been permitted, is of an entirely different nature than the rest of the statute and, for Erie purposes, must be analyzed separately as a rule of discovery. B. The Pleading Aspects of § 768.72 Since the statute’s adoption in 1986, other district courts in Florida have addressed the issue of whether § 768.72 is procedural or substantive under the Erie doctrine. With the notable exception of Citron v. Armstrong World Industries, Inc., 721 F.Supp. 1259 (S.D.Fla.1989), all reported cases have applied § 768.72 as substantive State law in federal diversity actions. See Bankest Imports, Inc. v. ISCA Corp., 717 F.Supp. 1537 (S.D.Fla.1989); Frio Ice, S.A. v. Sunfruit, 724 F.Supp. 1373 (S.D.Fla.1989); Lancer Arabians, Inc. v. Beech Aircraft Corp., 723 F.Supp. 1444 (M.D.Fla.1989); Dah Chong Hong Ltd. v. Silk Greenhouse, Inc., 719 F.Supp. 1072 (M.D.Fla.1989); Jerry W. Lewis v. Snap On Tools Corp., 708 F.Supp. 1260 (M.D.Fla.1989); McCarthy v. Barnett Bank of Polk County, 750 F.Supp. 1119 (M.D.Fla.1990). In other jurisdictions district courts facing virtually identical state statutes have been more divided in deciding whether to apply the state provision. See NAL II, Ltd. v. Tonkin, 705 F.Supp. 522 (D.Kan.1989) (state statute conflicted with Federal Rules and would not" }, { "docid": "9546572", "title": "", "text": "of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Courts, however, have abrogated these liberal pleading requirements when greater specificity is required. Section 768.72, Florida Statutes (1987), represents such a departure from the liberal requirements of notice pleading. Florida Statute Section 768.72 requires that a Plaintiff plead with greater specificity when asserting a claim for punitive damages. Florida courts have held that this statute is substantive in nature and, thus, should be applied by a federal court in Florida, sitting in diversity. Smith v. Department of Ins., 507 So.2d 1080 (Fla.1987). Accordingly, Plaintiff in the instant case is bound by the more stringent pleading requirements of Section 768.72. Upon review of Defendant’s Counterclaim, it is evident that Defendant has failed to comply with the special pleading requirements of Section 768.72. Defendant has merely set forth conclusory allegations, and has failed to allege facts sufficient to entitle it to recover punitive damages. Absent compliance with these pleading requirements, Defendant is not entitled to maintain a claim for punitive damages. Accordingly, this Court hereby strikes Defendant’s request for punitive damages. The Court, however, hereby grants Defendant 20 days within which to amend its Counterclaim to comport with the pleading requirements of Section 768.72, Florida Statutes (1987). Attorney’s Fees As an element of damages, Defendant has requested an award of attorneys’ fees. In response thereto, Plaintiff has filed a Motion to Dismiss Defendant’s request for attorneys’ fees. Upon review of this matter, it is the opinion of this Court that Defendant has failed to demonstrate an entitlement to an award of attorneys’ fees; accordingly, Defendant’s request for said fees is DENIED. Attorney’s fees are not recoverable and cannot be awarded unless provided for by contract or statute. Fox v. City of West Palm Beach, 383 F.2d 189 (5th Cir.1967); Maine v. Benjamin Foster Co., 141 Fla. 91, 192 So. 602 (1940); Woodco v. B & H Realty, 501 So.2d 1330 (Fla. 3rd DCA 1987). In the instant case, Defendant has failed to allege the existence of any contractual agreement providing for the award of attorneys’ fees. Furthermore, the only" }, { "docid": "20151900", "title": "", "text": "undertake. The Plaintiff’s submission of exhibits to substantiate its claim has elicited a barrage of briefs and counter-proffers of evidence by the defendants seeking to disprove SWIB’s claim largely by arguing their own evidence. The court seriously doubts that the statute intended such a fact-intensive investigation into the merits of Plaintiff’s punitive claim. Without attempting to determine precisely what type of showing is required by § 768.72, the court believes it must ultimately be a lesser standard than that required for summary judgment. Though the burden is on SWIB to survive a § 768.72 challenge of insufficiency, see Will v. Systems Engineering Consultants, 554 So.2d 591, 592 (Fla.App. 3 DCA 1989), the standard of proof required merely to assert Plaintiff’s punitive claim must be lower than that needed to survive a summary adjudication on its merits. As the Florida courts have noted, a § 768.72 challenge more closely resembles a motion to dismiss that additionally requires an evidentiary proffer and places the burden of persuasion on the plaintiff. Id. In considering a motion to dismiss, factual adjudication is inappropriate as all facts asserted — or here, reasonably established — by the plaintiff are to be taken as true. Conley v. Gibson, 355 U.S. 41, at 45-46, 78 S.Ct. 99, at 101-02, 2 L.Ed.2d 80, at 84. As such, the court has given recognition only to those assertions of the defendants which would show Plaintiffs factual bases to be patently false or irrelevant, and has paid no heed whatsoever to the defendants’ alternative evidentiary proffers. Fuller adjudication of Plaintiffs punitive claim will have to wait another day. II. Attorneys’ Fees The defendants have also moved to dismiss Plaintiff’s claim for attorneys’ fees. It is well settled that under Florida Law the parties bear their own fees absent an agreement or statute providing otherwise. Fox v. City of West Palm Beach, 383 F.2d 189, 195 (11th Cir.1967); Estate of Hampton v. Fairchild-Florida Constr. Co., 341 So.2d 759, 761 (Fla.1977). The Plaintiff has shown no statutory or contractual basis for asserting a demand for attorneys’ fees under any of its four claims. In" } ]

[ { "docid": "22757879", "title": "", "text": "facts under § 2254(d)(2), and the mitigating evidence he seeks to introduce would not have changed the result. In such circumstances, a District Court has discretion to deny an evidentiary hearing. The judgment of the Court of Appeals for the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Although not at issue here, AEDPA generally prohibits federal habeas courts from granting evidentiary hearings when applicants have failed to develop the factual bases for their claims in state courts. 28 U. S. C. § 2254(e)(2). Indeed, the Court of Appeals below, recognizing this point, applied § 2254(d)(2) to reject certain of the Arizona court’s factual findings that established a hearing would be futile. Landrigan made this argument for the first time in a motion for rehearing from the denial of his postconviction petition. Under Arizona law, a defendant cannot raise new claims in a motion for rehearing. State v. Byers, 126 Ariz. 139, 142, 613 P. 2d 299, 302 (App. 1980), overruled on other grounds, State v. Pope, 130 Ariz. 253, 635 P. 2d 846 (1981). Justice Stevens, with whom Justice Souter, Justice Ginsburg, and Justice Breyer join, dissenting. Significant mitigating evidence — evidence that may well have explained respondent’s criminal conduct and unruly behavior at his capital sentencing hearing — was unknown at the time of sentencing. Only years later did respondent learn that he suffers from a serious psychological condition that sheds important light on his earlier actions. The reason why this and other mitigating evidence was unavailable is that respondent’s counsel failed to conduct a constitutionally adequate investigation. See Wiggins v. Smith, 539 U. S. 510 (2003). In spite of this, the Court holds that respondent is not entitled to an evidentiary hearing to explore the prejudicial impact of his counsel’s inadequate representation. It reasons that respondent “would have” waived his right to introduce any mitigating evidence that counsel might have uncovered, ante, at 476, 479, and that such evidence “would have” made no difference in the sentencing anyway, ante, at 480. Without the benefit of" } ]

[ { "docid": "23363052", "title": "", "text": "11, 2002). We conclude that the combination of this motion and the request for an evidentiary hearing in the habeas petition was sufficient to alert the district court with adequate specificity to Mr. Fairchild’s grounds for seeking an evidentiary hearing concerning ineffective assistance. Accordingly, in our view, Mr. Fairchild preserved his contention of error concerning the district court’s denial of an evidentiary hearing and it is properly before us. 3. AEDPA Standard for an Evidentiary Hearing Under AEDPA, a federal habeas court may not grant an evidentiary hearing to a defendant who failed to develop his claim in state court, except in a few, narrowly defined circumstances that are not at issue here. See 28 U.S.C. § 2254(e)(2); Young, 486 F.3d at 679. But “if the petitioner did not fail to develop the factual basis of his claim in State court, ... a federal habeas court should proceed to analyze whether a hearing is appropriate or required under pre-AEDPA standards.” Young, 486 F.3d at 679 (alterations and internal quotation marks omitted). Failure to develop the claim means a “lack of diligence, or some greater fault” on the petitioner’s part. Williams v. Taylor (Michael Williams), 529 U.S. 420, 432, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000). “Diligence ... depends upon whether the prisoner made a reasonable attempt, in light of the information at the time, to investigate and pursue claims in state court.” Id. at 435, 120 S.Ct. 1479; cf. Allen v. Zavaras, 568 F.3d 1197, 1202-03 (10th Cir.2009) (holding that a federal habeas petitioner who filed his state petition in the state Supreme Court, where review is discretionary, rather than the district court, where review is mandatory, had failed to exhaust all available state remedies). Although not an absolute prerequisite, a petitioner typically must request an evidentiary hearing in state court. Michael Williams, 529 U.S. at 437, 120 S.Ct. 1479 (“Diligence will require in the usual case that the prisoner, at a minimum, seek an evidentiary hearing in state court in the manner prescribed by state law.”). We have sometimes found such a request, by itself, to be sufficient proof" }, { "docid": "23134514", "title": "", "text": "Court as to Strickland based upon a complete record.” Id. at 117. Likewise, we believe that any resolution of Thomas’ Strickland claims here is premature without the benefit of an evidentiary hearing. Accordingly, we will remand the case for a hearing concerning the extent, if any, of Thomas’ counsel’s pre-sentencing investigative efforts to obtain mitigating evidence. C. The Commonwealth urges that an evidentiary hearing would be inappropriate for two reasons: 1) Thomas has failed to develop a factual record in state court, so a hearing would be barred by 28 U.S.C. § 2254(e)(2); and 2) even if counsel were deficient, Thomas cannot prevail because he was not prejudiced. Neither of these arguments are persuasive. 1. First, Thomas did not “fail[] to develop the factual basis of a claim in State court” in such a way that causes Section 2254(e)(2) to bar an evidentiary hearing. “Under the opening clause of § 2254(e)(2), a failure to develop the factual basis of a claim is not established unless there is lack of diligence, or some greater fault, attributable to the prisoner or the prisoner’s counsel.” Williams v. Taylor, 529 U.S. 420, 432, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000). “Diligence ... depends upon whether the prisoner made a reasonable attempt, in light of the information available at the time, to investigate and pursue claims in state court; it does not depend ... upon whether those efforts could have been successful.” Id. at 435, 120 S.Ct. 1479. In Thomas v. Varner, 428 F.3d 491 (3d Cir.2005), we concluded that the petitioner’s request for an evidentiary hearing in the state post-conviction court, which was denied, showed sufficient diligence to render Section 2254(e)(2) inapplicable. Id. at 498. Likewise, here, Thomas requested an evidentiary hearing in the PCRA court to develop the factual record for his claim that trial counsel failed to investigate mitigating evidence. Therefore, Section 2254(e)(2) does not apply. See also Williams, 529 U.S. at 437, 120 S.Ct. 1479 (“Diligence will require in the usual case that the prisoner, at a minimum, seek an evidentiary hearing in state court in the manner prescribed by state" }, { "docid": "12734577", "title": "", "text": "disqualification, and denied Getsy’s request for an eviden-tiary hearing on the matter. On direct review, the Ohio Supreme Court relied on Chief Justice Moyer’s denial of Getsy’s Affidavit of Disqualification in ruling against his judicial-bias argument. Getsy, 702 N.E.2d at 876. Judge McKay’s DUI prosecution overlapped with Getsy’s trial. In order to avoid the appearance of impropriety, the Trumbull County Prosecutor’s Office trying Getsy’s case brought in a special prosecutor from neighboring Geauga County to prosecute Judge McKay. Ultimately, Judge McKay pled guilty to the DUI charge and was sentenced on September 5, 1996. Judge McKay’s plea and sentencing thus followed the September 3, 1996 guilty verdict in Getsy’s jury trial} but preceded the jury’s death-sentence recommendation handed down on September 10, 1996 and Judge McKay’s imposition of the death sentence on September 12,1996. Getsy’s primary argument is that he is entitled to an evidentiary hearing to develop facts relevant to his judicial-bias claim. The district court denied Get-sy’s request for such a hearing. We will reverse a district court’s denial of an evi-dentiary hearing only if the court abused its discretion. Abdus-Samad v. Bell, 420 F.3d 614, 626 (6th Cir.2005) (reciting that standard of review in affirming the denial of an evidentiary hearing). A district court abuses its discretion where it “applies the incorrect legal standard, misapplies the correct legal standard, or relies upon clearly erroneous findings of fact.” United States v. Martinez, 430 F.3d 317, 326 (6th Cir.2005) (quotation marks omitted). Section 2254(e)(2) sets forth certain preconditions to obtaining an eviden-tiary hearing in a habeas proceeding where a petitioner has “failed to develop the factual basis of a claim in State court proceedings.” The Supreme Court has held that “failed” within the meaning of § 2254(e)(2) refers to “a lack of diligence, or some greater fault, attributable to the prisoner or the prisoner’s counsel.” Williams v. Taylor, 529 U.S. 420, 432, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000). Here, Getsy sought to develop evidence regarding his judicial-bias claim both at trial and in his postconviction proceedings in state court. He has thus demonstrated diligence in accordance with §" }, { "docid": "20764797", "title": "", "text": "whether Mr. Stouffer may receive a hearing in federal court. We first consider whether Mr. Stouffer satisfies the diligence requirement outlined in 28 U.S.C. § 2254 and conclude that he does. We then examine and reject the State’s procedural arguments against granting an evidentiary hearing. a. Mr. Stouffer satisfies § 225^’s diligence requirement Because the trial court failed to provide the proper remedy, we must determine whether a federal court may do so. Federal law “restrict[s] the authority of federal courts to grant evidentiary hearings in habeas cases.” Cannon, 383 F.3d at 1175. Mr. Stouffer cannot receive a hearing if he “failed to develop the factual basis of [his] claim” in state court,. 28 U.S.C. § 2254(e)(2), due to “a lack of diligence, or some greater fault, attributable to the prisoner or the prisoner’s counsel.” Williams v. Taylor, 529 U.S. 420, 432, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000). To demonstrate the required diligence, Mr. Stouffer must show that he “made a reasonable attempt, in light of the information available at the time, to investigate and pursue claims in state court” in “the manner prescribed by state law.” Id. at 435, 437, 120 S.Ct. 1479. Mr. Stouffer’s counsel asked the trial court for a hearing to examine Mr. Vetter and Juror Vetter, and the court refused. As the State concedes, he raised the issue in his state application for post-conviction relief (along with a claim that counsel on direct 'appeal- had been ineffective for failing to raise it). And he asked both the federal district court and this court to consider the request. This is sufficient to satisfy § 2254(e)’s diligence requirement. b. The request for an evidentiary hearing is not .procedurally barred and is within our jurisdiction The State makes several procedural and jurisdictional arguments against granting an evidentiary hearing. It first argues that Mr. Stouffer waived the request for an evidentiary hearing because his original federal habeas petition sought a different remedy — vacation of his conviction — rather than an evidentiary hearing. Howev er, Mr. Stouffer filed a pro se motion alternatively requesting an evidentiary hearing on" }, { "docid": "15137436", "title": "", "text": "the record sufficient to support this claim. The fact that appellant states a different version of the events in an affidavit and claims he did not kill the victim, without any independent evidence, does not justify an evidentiary hearing on this claim. The affidavits of Schlechty and Judy Robertson Cowans also do not include any evidence dehors the record which would justify an evidentiary hearing. (J.A. Vol. V, Exh. 26, at 263.) The Court concludes that petitioner is not entitled to habeas relief on this ineffective assistance claim because the Court concludes, for several reasons, that the state court’s decision rejecting the claim did not contravene or unreasonably apply controlling Supreme Court precedent. In Ake v. Oklahoma, 470 U.S. 68, 83, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), the Supreme Court held that “when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.” The District Court for the Western District of Michigan, citing several decisions from federal courts across the country, recently held that although habeas corpus courts prior to the enactment of the AEDPA extended Ake to non-psychiatric experts, it is very much an open question as to habeas corpus decisions post-AEDPA whether Ake applies to requests for experts outside the field of psychiatry, in view of the fact that the Supreme Court has never explicitly extended Ake to non-psychiatric experts. Babick v. Berghuis, No. 1:03-cv-20, 2008 WL 282166, at *41 (W.D.Mich. Jan. 29, 2008). Although the precise issue before this Court is not whether the trial court erred in failing to provide funds for non-psychiatric experts, but whether trial counsel were ineffective for failing to request funds for non-psychiatric experts, it certainly diminishes petitioner’s argument that counsel performed deficiently or to petitioner’s prejudice when it cannot be said that Supreme Court precedent clearly dictates that he had a due process right to such" }, { "docid": "46569", "title": "", "text": "2254(e)(2) does not apply, we review the denial of an evidentiary hearing request for an abuse of discretion. See, e.g., Karis v. Calderon, 283 F.3d 1117, 1126 (9th Cir.2002). A petitioner who avoids the reach of § 2254(e)(2) qualifies for an evidentiary hearing if the petitioner alleges facts, that if proven, would entitle the petitioner to relief and the state court trier of fact has not, after a full and fair hearing, reliably found the relevant facts. See Jones v. Wood, 114 F.3d 1002, 1010, 1013 (9th Cir.1997). Although application of the wrong legal standard constitutes an abuse of discretion, see Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 406, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990), we may affirm the district court on any ground supported by the record. Paradis v. Arave, 240 F.3d 1169, 1175-76 (9th Cir.2001). We hold that the record adequately supports the district court’s denial of Griffey’s eviden-tiary hearing request. A Griffey asks us to determine whether he is entitled to an evidentiary hearing on several claims whose substantive merits are not properly before us. We decline to do so. In Williams v. Taylor, 529 U.S. 420, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000), the Supreme Court refused to evaluate the denial of an evidentiary hearing with respect to those claims that were rejected on the merits by the Fourth Circuit. See id. at 444, 120 S.Ct. 1479 (“The Court of Appeals rejected this claim on the merits ... so it is unnecessary to reach the question whether § 2254(e)(2) would permit a hearing on the claim.”). We follow the same approach here. We restrict our consideration to those claims whose merits are encompassed by the COA: 1) Griffey’s due process claims based on allegedly tainted identifications; and 2) Griffey’s ineffective assistance of counsel claims. B Griffey received a pre-trial hearing in the state trial court on his claim that various identification procedures violated his due process rights. In his state habeas petitions, Griffey supplemented his original suggestive identification claim with additional allegations. The factual basis for these expanded allegations rests on a combination" }, { "docid": "23548411", "title": "", "text": "] to develop the factual basis of a claim in State court proceedings.” The Supreme Court has explained that “a failure to develop the factual basis of a claim is not established unless there is lack of diligence, or some greater fault, attributable to the prisoner or the prisoner’s counsel.” Michael Williams v. Taylor, 529 U.S. 420, 432, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000). This court has noted that “a finding of diligence would ‘depend[ ] upon whether the prisoner made a reasonable attempt, in light of the information available at the time, to investigate and pursue claims in state court.’ ” Sawyer v. Hofbauer, 299 F.3d 605, 610 (6th Cir.2002) (citing Williams, 529 U.S. at 435, 120 S.Ct. 1479). Bowling has met his burden under 28 U.S.C. § 2254(e)(2). Bowling repeatedly sought an evidentiary hearing in state court and, in those proceedings, introduced several documents attempting to corroborate the deal between Clay Brackett and the government and to establish the culpability of Donald Adams. We find this suf ficient to show that Bowling was diligent in his state court litigation. However, the fact that Bowling is not disqualified from receiving an evidentiary-hearing under § 2254(e)(2) does not entitle him to one. We must determine then whether the district court abused its discretion by denying him an evidentiary hearing. See Sawyer, 299 F.3d at 610. This court has held that “a habeas petitioner is generally entitled to such a hearing if he alleges sufficient grounds for release, relevant facts are in dispute, and the state courts did not hold a full and fair evidentiary hearing.” Id. (internal quotations omitted). However, “[e]ven in a death penalty ease, ‘bald assertions and conclusory allegations do not provide sufficient ground to warrant requiring the state to respond to discovery or to require an evidentiary hearing.’ ” Stanford v. Parker, 266 F.3d 442, 460 (6th Cir.2001) (citation omitted), cert. denied, 537 U.S. 831, 123 S.Ct. 136, 154 L.Ed.2d 47 (2002). Bowling cannot show that the district court abused its discretion in denying him an evidentiary hearing. Bowling’s claims that Donald Adams was the one" }, { "docid": "2028644", "title": "", "text": "(which did not include intellectual testing data), the records remaining from Morris' attendance in school (many of the records had been destroyed), Morris' adult probation records from Harris County, and affidavits from Dr. Richard Garnett, Jimmie Morris, Ayanna Shauntay Sweatt, Craig Morris, and Darrel Morris. Further, Morris indicates in his successive state application for writ of habeas corpus that he asked the state trial court in which his application was filed for apppintment of counsel for the purpose of obtaining psychological testing. This request was apparently denied after it was opposed by the Harris County District Attorney's office. . The Supreme Court reached a similar conclusion in Williams: We do not suggest the State has an obligation to pay for investigation of as yet undeveloped claims; but if the prisoner has made a reasonable effort to discovery the claims to commence or continue state proceedings, § 2254(e)(2) will not bar him from developing them in federal court. 529 U.S. at 443, 120 S.Ct. 1479; see also United States ex rel. Hampton v. Leibach, 347 F.3d 219, 233-34 (7th Cir.2003) (evidentiary hearing allowed to consider affidavit that was not presented to the state court when the state court had denied petitioner's request for an evidentiary hearing at the state level for the purpose of developing the testimony contained in the affidavit); Greer v. Mitchell, 264 F.3d 663, 681 (6th Cir.2001) (evidentiary hearing allowed when petitioner diligently pursued his ineffective assistance .claim in state habeas proceedings, had twice requested hearings to develop evidence, and both requests were refused by the state courts). . Williams, 529 U.S. at 432, 120 S.Ct. 1479. . 28 U.S.C. § 2254(d)(1)-(2). . 529 U.S. at 434, 120 S.Ct. 1479. DENNIS, Circuit Judge, concurring: I join fully in Judge DeMoss’s opinion. Moreover, I heartily endorse Judge Higginbotham’s analysis of the state’s failure to develop argument and applaud the passion and eloquence with which he argues. Further, I believe that Judge Higginbotham’s reasoning, and that of the Supreme Court in Williams v. Taylor, 529 U.S. 420, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000), should inform this court’s application of" }, { "docid": "21154584", "title": "", "text": "we are required to give the decision of the Michigan Supreme Court under AED-PA. See 28 U.S.C. § 2254(d). D. Ivory is not entitled to an evidentia-ry hearing Ivory’s final contention is that, even if he cannot demonstrate that he is entitled to habeas relief based on his ineffective-assistance-of-counsel claims, he is entitled to an evidentiary hearing to develop additional relevant facts. The district court denied Ivory’s request for an evidentiary hearing, which we review under the abuse-of-discretion standard. See Bowling v. Parker, 344 F.3d 487, 512 (6th Cir.2003). The Warden asserts that Ivory’s lack of compliance with 28 U.S.C. § 2254(e)(2) prohibits him from receiving an evidentiary hearing. Section 2254(e)(2) bars the grant of an evidentiary hearing to a defendant who “has failed to develop the factual basis of a claim in State court proceedings” unless certain exceptions are met. Id. As the Supreme Court has explained, “a failure to develop the factual basis of a claim is not established unless there is lack of diligence, or some greater fault, attributable to the prisoner or the prisoner’s counsel.” Williams v. Taylor, 529 U.S. 420, 432, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000). The Warden argues that, just as Ivory procedurally defaulted his substantive ineffective-assistance-of-trial-counsel claim by failing to raise it on direct review, § 2254(e)(2) precludes granting Ivory an evidentiary hearing because he failed to seek one on direct review. Ivory responds that § 2254(e)(2) does not bar granting an evidentiary hearing because (1) he sought an evidentiary hearing in state postconviction proceedings and was denied, (2) any default is excused by the ineffective assistance of his appellate counsel, and (3) he is at least entitled to an evidentiary hearing regarding the ineffectiveness of his appellate counsel because that claim is not procedurally defaulted. Because the sole ground upon which Ivory bases his ineffective-assistance-of-appellate-counsel claim is appellate counsel’s failure to raise the claim of ineffective assistance of trial counsel, the two issues are intertwined. We need not ultimately decide whether the bar of § 2254(e)(2) applies to either request, however, because even assuming that it does not, “the fact" }, { "docid": "16135196", "title": "", "text": "(3d Cir.2008), our consideration of the District Court’s legal conclusions is plenary, Slutzker v. Johnson, 393 F.3d 373, 378 (3d Cir.2004). We review any findings of fact drawn from the evidentiary hearing for clear error. Rolan v. Vaughn, 445 F.3d 671, 677 (3d Cir.2006). To the extent that state court factual findings are at issue in this habeas appeal, we presume them to be correct and will disturb them only upon a showing of clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1); Campbell v. Vaughn, 209 F.3d 280, 290 (3d Cir.2000). Ill We first consider the Commonwealth’s contention that the District Court erred by granting Kelvin an evidentiary hearing on his conflict-of-interest claim. Our inquiry proceeds in two stages. First, we must determine whether the hearing was barred by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214. If it was not, we then consider whether the District Court’s decision to grant a hearing was an abuse of its discretion. We address each issue in turn. A Pursuant to AEDPA, district courts retain discretion to grant evidentiary hearings in federal habeas proceedings, subject to certain restrictions. See Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007). Of primary significance in Kelvin’s case is 28 U.S.C. § 2254(e)(2), which generally prohibits evidentiary hearings where the petitioner “has failed to develop the factual basis of a claim in state court proceedings.” Under § 2254(e)(2), “a habeas court is barred from holding an evidentiary hearing unless the petitioner was diligent in his attempt to develop a factual basis for his claim in the state court.” Palmer v. Hendricks, 592 F.3d 386, 392 (3d Cir.2010); see also Williams v. Taylor, 529 U.S. 420, 435, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000). The principles of federalism and comity that underlie AEDPA in general — ■ and § 2254(e)(2) in particular — demand that a petitioner first afford the state court a fair opportunity to develop and adjudicate his claims before seeking federal habeas relief. See Williams, 529 U.S. at 436-37," }, { "docid": "16135197", "title": "", "text": "turn. A Pursuant to AEDPA, district courts retain discretion to grant evidentiary hearings in federal habeas proceedings, subject to certain restrictions. See Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007). Of primary significance in Kelvin’s case is 28 U.S.C. § 2254(e)(2), which generally prohibits evidentiary hearings where the petitioner “has failed to develop the factual basis of a claim in state court proceedings.” Under § 2254(e)(2), “a habeas court is barred from holding an evidentiary hearing unless the petitioner was diligent in his attempt to develop a factual basis for his claim in the state court.” Palmer v. Hendricks, 592 F.3d 386, 392 (3d Cir.2010); see also Williams v. Taylor, 529 U.S. 420, 435, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000). The principles of federalism and comity that underlie AEDPA in general — ■ and § 2254(e)(2) in particular — demand that a petitioner first afford the state court a fair opportunity to develop and adjudicate his claims before seeking federal habeas relief. See Williams, 529 U.S. at 436-37, 120 S.Ct. 1479; see also O’Sullivan v. Boerckel, 526 U.S. 838, 844-45, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). Accordingly, whether a petitioner first pursued an evidentiary hearing in state court in the manner provided by state law is central to the diligence analysis under § 2254(e)(2). Williams, 529 U.S. at 437, 120 S.Ct. 1479. In this appeal, the parties agree that Kelvin sought an evidentiary hearing on his conflict-of-interest claim in state court when he filed his second PCRA petition in 1996. The state court, however, denied Kelvin a hearing and dismissed his petition without addressing its merits after deeming it untimely under the PCRA’s one-year statute of limitations. Though the District Court recognized that the state court had dismissed the claim as time-barred, it reiterated its finding that the PCRA’s statute of limitations was an inadequate bar to federal relief and thus concluded that Kelvin had made a sufficient attempt to develop the record in state court. Accordingly, the District Court held that § 2254(e)(2) did not bar a hearing. Noting the lengthy" }, { "docid": "3493724", "title": "", "text": "find that Landrigan has made a colorable claim that he did not receive effective assistance of counsel in his sentencing. We therefore remand to the district court to conduct an evidentiary hearing. I. We review the district court’s decision to deny habeas corpus relief de novo. Bribiesca v. Galaza, 215 F.3d 1015, 1018 (9th Cir.2000). Because Landrigan filed his petition after April 24, 1996, it is governed by the standard of review set forth in the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254(d)(1). Under AEDPA, Landrigan is entitled to a writ if the state court’s denial of his claim “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.” Id. The district court’s decision to deny an evidentiary hearing is reviewed for an abuse of discretion. See Earp v. Ornoski, 431 F.3d 1158, 1166 (9th Cir.2005). Under AEDPA, if a petitioner fails to develop in state court the factual basis for a claim, he is restricted in his ability to do so in federal court. See 28 U.S.C. § 2254(e)(2). These restrictions do not apply, however, if a petitioner exercised due diligence in state court and attempted to develop the factual basis of his claim. As the Supreme Court has explained, “a failure to develop the factual basis of a claim is not established unless there is lack of diligence, or some greater fault, attributable to the prisoner or the prisoner’s counsel.” Michael Wayne Williams v. Taylor, 529 U.S. 420, 432, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000). The Court has further noted that “[d]iligence will require in the usual case that the prisoner, at a minimum, seek an evidentiary hearing in state court in the manner prescribed by state law.” Id. at 437, 120 S.Ct. 1479. Landrigan did not “fail to develop” the factual basis for his ineffective assistance claim in state court. In his state habeas petition, Landrigan made a general claim that his counsel had failed to investi gate and develop potential mitigating" }, { "docid": "23363053", "title": "", "text": "claim means a “lack of diligence, or some greater fault” on the petitioner’s part. Williams v. Taylor (Michael Williams), 529 U.S. 420, 432, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000). “Diligence ... depends upon whether the prisoner made a reasonable attempt, in light of the information at the time, to investigate and pursue claims in state court.” Id. at 435, 120 S.Ct. 1479; cf. Allen v. Zavaras, 568 F.3d 1197, 1202-03 (10th Cir.2009) (holding that a federal habeas petitioner who filed his state petition in the state Supreme Court, where review is discretionary, rather than the district court, where review is mandatory, had failed to exhaust all available state remedies). Although not an absolute prerequisite, a petitioner typically must request an evidentiary hearing in state court. Michael Williams, 529 U.S. at 437, 120 S.Ct. 1479 (“Diligence will require in the usual case that the prisoner, at a minimum, seek an evidentiary hearing in state court in the manner prescribed by state law.”). We have sometimes found such a request, by itself, to be sufficient proof of diligence. See Cannon v. Mullin, 383 F.3d 1152, 1176 (10th Cir.2004) (citing examples). But requesting an evidentiary hearing does not “ipso facto satisffy] the diligence requirement.” Id. To determine diligence, we look to a petitioner’s efforts to develop facts in compliance with state law. See Barkell v. Crouse, 468 F.3d 684, 694 (10th Cir.2006) (holding that if petitioner “complied with what reasonably appeared to be the established state-law requirements, he cannot be said to have failed to develop the factual basis of his claim, even if his reasonable interpretation of state law turned out to be wrong” (alterations, citations and internal quotation marks omitted)). “But whether a habeas petitioner has shown ‘a lack of diligence’ ... is a question of federal law decided by the federal habeas courts.” Boyle v. McKune, 544 F.3d 1132, 1136 (10th Cir. 2008), cert. denied, — U.S. -, 129 S.Ct. 1630, 173 L.Ed.2d 1011 (2009). There is a strong argument that Mr. Fairchild was not diligent. He did not present his ineffective assistance claim on direct appeal, as Oklahoma" }, { "docid": "14719867", "title": "", "text": "support,” Picard, 404 U.S. at 277, 92 S.Ct. 509. We, therefore, conclude that the district court did not err in thrice rejecting the State’s argument that Pope’s failure-to-mitigate claim was unexhausted. IV. Having concluded that Pope’s penalty-phase claims are properly before us, we turn to the merits. The procedural history surrounding these claims is tortured. As we explain below, although Pope consistently sought an evidentiary hearing in state court to develop his penalty-phase claims, no hearing was ever held. Even the federal district court denied his request for an evidentiary hearing to develop these claims, albeit under pre-AEDPA law, on the ground that Pope had already participated in two state-court hearings. But these hearings barely touched on his counsel’s performance during the penalty phase. The record, therefore, leaves us with Pope’s untested penalty-phase allegations, and little, if anything else to consider. In the face of this procedural history, together with the substance of the claims, we are compelled to conclude that the district court erred in granting habeas relief on this barren record, and moreover, abused its discretion in denying Pope an evidentiary hearing to develop his claims. We, therefore, vacate the district court’s decision, and remand the case with instructions for the district court to hold an evidentiary hearing. AEDPA prohibits the district court from holding an evidentiary hearing “[i]f the applicant has failed to develop the factual basis of a claim in State court proceedings” unless certain circumstances are shown. 28 U.S.C. § 2254(e)(2). However, “[b]y the terms of its opening clause the statute applies only to prisoners who have ‘failed to develop the factual basis of a claim in State court proceedings.’ ” Williams v. Taylor, 529 U.S. 420, 430, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000) (“Michael Williams”) (quoting 28 U.S.C. § 2254(e)(2)). The Supreme Court has held, however, that in the context of this section, “failed to develop” connotes fault on the part of the petitioner. Id. at 431-32, 120 S.Ct. 1479 (“ ‘[F]aiF connotes some omission, fault, or negligence on the part of the person who has failed to do something ---- [A] person" }, { "docid": "18046878", "title": "", "text": "ask for an evidentiary hearing; questions of mental retardation are, as his state proceedings suggest, incredibly fact intensive. To be eligible for an evidentiary hearing, Hill would then need to demonstrate that he was diligent in attempting to develop the factual underpinnings of his claim. 28 U.S.C. § 2254(e)(2) (restricting a district court’s discretion to hold evidentiary hearings where the petitioner “failed to develop the factual basis of a claim in State court proceedings”); Williams v. Taylor, 529 U.S. 420, 430, 120 S.Ct. 1479, 1487, 146 L.Ed.2d 435 (2000) (“ ‘[F]ailed to develop’ implies some lack of diligence .... ”). Nothing in the record suggests that Hill would be barred by § 2254(e)(2)’s restriction. Therefore, the district court would have had the discretion to hold an evidentiary hearing according to pre-AEDPA rules. Williams v. Allen, 542 F.3d 1326, 1346-47 (11th Cir.2008) (analyzing the petitioner’s request for an evidentiary hearing under the standards set out by Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963)). At this point, Hill could have argued that the district court was required to hold an evidentiary hearing because the beyond-a-reasonable-doubt standard deprived him of a “full and fair hearing.” See Kelley v. Sec’y for Dep’t of Corr., 377 F.3d 1317, 1334 (11th Cir.2004) (quoting Toumsend, 372 U.S. at 313, 83 S.Ct. at 757); see also Quince, 360 F.3d at 1262-63 (stating that the state post-conviction judge’s conflict of interest could have been a basis for arguing that the state post-conviction proceeding was not “full and fair”). His argument here would mirror the grounds he asserts for habeas relief. Claims of mental retardation are incredibly fact-intensive and could devolve into a swearing match between conflicting, and equally qualified, experts. This swearing match could easily — if not always — create reasonable doubt that the defendant is not mentally retarded. By erecting this higher burden, the State effectively put its thumb on the scale against a defendant’s mental-retardation defense. The state post-conviction trial court demonstrated this point; it found Hill mentally retarded by a preponderance of the evidence, but not beyond a reasonable" }, { "docid": "23548410", "title": "", "text": "denying him a federal evidentiary hearing in conjunction with his habeas petition. Bowling seeks an evidentiary hearing to investigate one of his Brady claims and a few of his ineffective assistance of counsel claims. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Specifically, Bowling wants to investigate whether the prosecution had any internal documents linking the Earleys to Donald Adams (and thus Donald Adams to the crime itself), and whether Bowling’s counsel was defective for not further investigating Adams. Bowling also seeks an evidentiary hearing to establish whether his counsel was ineffective for failing to investigate a potential deal the government made with Clay Brackett. Bowling was never granted any post-conviction evidentiary hearing by the Kentucky state courts, but requested an evidentiary hearing in the direct appeal and post-conviction proceedings. We conclude that the district court did not err in denying Bowling an evidentiary hearing. The first hurdle that Bowling must jump is 28 U.S.C. § 2254(e)(2), which prevents federal courts from granting evi-dentiary hearings to petitioners who “fail[ ] to develop the factual basis of a claim in State court proceedings.” The Supreme Court has explained that “a failure to develop the factual basis of a claim is not established unless there is lack of diligence, or some greater fault, attributable to the prisoner or the prisoner’s counsel.” Michael Williams v. Taylor, 529 U.S. 420, 432, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000). This court has noted that “a finding of diligence would ‘depend[ ] upon whether the prisoner made a reasonable attempt, in light of the information available at the time, to investigate and pursue claims in state court.’ ” Sawyer v. Hofbauer, 299 F.3d 605, 610 (6th Cir.2002) (citing Williams, 529 U.S. at 435, 120 S.Ct. 1479). Bowling has met his burden under 28 U.S.C. § 2254(e)(2). Bowling repeatedly sought an evidentiary hearing in state court and, in those proceedings, introduced several documents attempting to corroborate the deal between Clay Brackett and the government and to establish the culpability of Donald Adams. We find this suf ficient to show that Bowling" }, { "docid": "12734578", "title": "", "text": "only if the court abused its discretion. Abdus-Samad v. Bell, 420 F.3d 614, 626 (6th Cir.2005) (reciting that standard of review in affirming the denial of an evidentiary hearing). A district court abuses its discretion where it “applies the incorrect legal standard, misapplies the correct legal standard, or relies upon clearly erroneous findings of fact.” United States v. Martinez, 430 F.3d 317, 326 (6th Cir.2005) (quotation marks omitted). Section 2254(e)(2) sets forth certain preconditions to obtaining an eviden-tiary hearing in a habeas proceeding where a petitioner has “failed to develop the factual basis of a claim in State court proceedings.” The Supreme Court has held that “failed” within the meaning of § 2254(e)(2) refers to “a lack of diligence, or some greater fault, attributable to the prisoner or the prisoner’s counsel.” Williams v. Taylor, 529 U.S. 420, 432, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000). Here, Getsy sought to develop evidence regarding his judicial-bias claim both at trial and in his postconviction proceedings in state court. He has thus demonstrated diligence in accordance with § 2254(e)(2). See id. at 437, 120 S.Ct. 1479 (“Diligence will require in the usual case that the prisoner, at a minimum, seek an evidentia-ry hearing in state court in the manner prescribed by state law.”). Although Getsy thus overcomes the initial statutory hurdle to obtaining a hearing, “the fact that [a petitioner] is not disqualified from receiving an evidentiary hearing under § 2254(e)(2) does not entitle him to one.” Bowling v. Parker, 344 F.3d 487, 512 (6th Cir.2003). The Supreme Court recently explained that, “[i]n deciding whether to grant an evidentiary hearing, a federal court must consider whether such a hearing could enable an applicant to prove the petition’s factual allegations, which, if true, would entitle the applicant to federal habeas relief.” Schriro v. Landrigan, — U.S. -, 127 S.Ct. 1933, 1940, 167 L.Ed.2d 836 (2007); see also Bowling, 344 F.3d at 512 (determining that the district court’s denial of an evidentiary hearing did not amount to an abuse of discretion after examining the following factors: whether the petitioner “alleges sufficient grounds for release,” whether" }, { "docid": "25272", "title": "", "text": "who “failed to develop the factual basis of a claim in State court proceedings” cannot obtain an evidentiary hearing unless he satisfies two statutory exceptions not applicable here. 28 U.S.C. § 2254(e)(2). However, when a defendant diligently seeks an evidentiary hearing in the state courts in the manner prescribed, but the state courts deny him that opportunity, he can avoid § 2254(e)(2)’s barriers to obtaining a hearing in federal court. Williams v. Taylor, 529 U.S. 420, 437, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000). A defendant fails to develop the factual basis of a claim only when he is at fault for failing to develop the factual record in state court, as when he or his counsel has not exercised proper diligence, or greater fault, in failing to develop the record. Id. at 432, 120 S.Ct. 1479; Moss v. Hofbauer, 286 F.3d 851, 858-59 (6th Cir.), cert. denied, 537 U.S. 1092, 123 S.Ct. 702, 154 L.Ed.2d 639 (2002). The test for “failed to develop” is defined as a “lack of diligence, or some greater fault, attributable to the prisoner or the prisoner’s counsel” in his or her attempts to discover and present a claim in the state court. Williams, 529 U.S. at 432, 120 S.Ct. 1479; Thompson v. Bell, 315 F.3d 566, 594 (6th Cir.2003). Diligence for purposes of § 2254(e)(2) depends upon “whether the prisoner made a reasonable attempt, in light of the information available at the time, to investigate and pursue claims in the state court.” Williams, 529 U.S. at 435, 120 S.Ct. 1479; Thompson, 315 F.3d at 594. If the petitioner did not fail to develop the facts in the state court, then the district court may hold an evidentiary hearing. Williams, 529 U.S. at 433, 120 S.Ct. 1479; Thompson, 315 F.3d at 594; Moss, 286 F.3d at 859. Section § 2254(e)(2) may or may not preclude remand for an evidentia-ry hearing on the ineffective assistance issue. We need not reach this issue, however. Even if we could remand for an evidentiary hearing, doing so would be futile. The present record appears to be complete. McAdoo points" }, { "docid": "18046877", "title": "", "text": "the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). The district court, or this court on appeal, would review the evidence introduced at Hill’s post-conviction hearing and determine if the state court’s ultimate finding of fact — that Hill was not mentally retarded — was “objectively unreasonable.” See Lockyer v. Andrade, 538 U.S. 63, 76, 123 S.Ct. 1166, 1175, 155 L.Ed.2d 144 (2003) (explaining that § 2254(d)(l)’s “unreasonable application” clause bars federal habeas relief unless the state court’s decision was “objectively unreasonable,” which is not synonymous with “clear error” or other “independent review” by the federal court) (citing Williams v. Taylor, 529 U.S. 362, 409, 120 S.Ct. 1495, 1521, 146 L.Ed.2d 389 (2000)). If the federal court found the Georgia courts’ determination unreasonable, the federal court would then decide, in its independent judgment, whether Hill actually was mentally retarded. See McGahee v. Ala. Dep’t of Corr., 560 F.3d 1252, 1266 (11th Cir.2009) (reviewing a petitioner’s claim de novo after determining that the petitioner satisfied § 2254(d)). At this point, Hill would likely ask for an evidentiary hearing; questions of mental retardation are, as his state proceedings suggest, incredibly fact intensive. To be eligible for an evidentiary hearing, Hill would then need to demonstrate that he was diligent in attempting to develop the factual underpinnings of his claim. 28 U.S.C. § 2254(e)(2) (restricting a district court’s discretion to hold evidentiary hearings where the petitioner “failed to develop the factual basis of a claim in State court proceedings”); Williams v. Taylor, 529 U.S. 420, 430, 120 S.Ct. 1479, 1487, 146 L.Ed.2d 435 (2000) (“ ‘[F]ailed to develop’ implies some lack of diligence .... ”). Nothing in the record suggests that Hill would be barred by § 2254(e)(2)’s restriction. Therefore, the district court would have had the discretion to hold an evidentiary hearing according to pre-AEDPA rules. Williams v. Allen, 542 F.3d 1326, 1346-47 (11th Cir.2008) (analyzing the petitioner’s request for an evidentiary hearing under the standards set out by Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963)). At this point, Hill could have argued" }, { "docid": "13105972", "title": "", "text": "peremptory strikes. In addition, he argued that the justification for striking an African-American potential juror applied equally to white venire members who were not excluded. These are Batson step three arguments in that they go to the question of whether the prosecutor’s “race-neutral explanation should be believed.” Hernandez v. New York, 500 U.S. 352, 365, 111 S.Ct. 1859, 1869, 114 L.Ed.2d 395 (1991) (plurality opinion). Given these contentions, a reasonable reader would have understood that Williams’ claim implicated the third Batson step. See McNair, 416 F.3d at 1302. We thus conclude that Williams has satisfied the exhaustion requirement as to his Batson step three claim. Accordingly, we reverse the district court’s ruling that the claim is procedurally barred from federal habeas review. C. Denial of Evidentiary Hearing Finally, Williams argues that the district court improperly denied his request for an evidentiary hearing. Williams contends that the “injudicious conduct” exhibited by the trial judge during the Rule 32 proceedings prevented him from developing evidence related to his ineffective assistance and Brady claims. “We review a district court’s decision to grant or deny an evidentiary hearing for abuse of discretion.” Kelley, 377 F.3d at 1333. A court abuses its discretion if it misapplies the law or makes clearly erroneous findings of fact. Id. Here, the district court determined that an evidentia-ry hearing was not precluded under § 2254(e)(2) because Williams was diligent in seeking to develop the factual bases of his claims in state court. See Williams v. Taylor, 529 U.S. 420, 432, 120 S.Ct. 1479, 1488, 146 L.Ed.2d 435 (2000). The Court then addressed whether a hearing was mandatory under Townsend v. Sain, 872 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), overruled in part by Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992), superseded by statute as stated in Williams, 529 U.S. at 433, 120 S.Ct. at 1489. In Townsend, the Court held that a federal habeas court must hold an evidentiary hearing under the following circumstances: If (1) the merits of the factual dispute were not resolved in the state hearing; (2) the" } ]

[ { "docid": "5651180", "title": "", "text": "POSNER, Circuit Judge. The Department of Labor asked the district court to enforce a subpoena directed against the Great Lakes Indian Fish and Wildlife Commission, seeking evidence that the Commission is violating the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq., which so far as relevant here requires employers to pay employees one and a half times their regular wages for work in excess of forty hours a week. The district judge refused to enforce the subpoena, on the ground that the Commission is not subject to the Act. The Department has appealed. Its first argument, which need not detain us long, is that the court should have enforced the subpoena without resolving the question of statutory coverage, instead deferring the question until and unless the Department proceeded against the Commission for violations of the Act. If it were doubtful whether the Commission was failing to pay time and a half for overtime, or if the question whether the Commission is subject to the Act could not be resolved without the information sought by the subpoena, the deferral suggested by the Department would be proper. Neither condition is satisfied. The Commission admits that it does not pay time and a half for overtime; and the question of statutory coverage is independent of any informa tion that the subpoena might produce, as it is a question purely of law. The Commission should not be burdened with having to comply with a subpoena if, as the district court believed, the agency issuing it has no jurisdiction to regulate the wages that the Commission pays. Questions of regulatory jurisdiction are properly addressed at the subpoena-enforcement stage if, as here, they are ripe for determination at that stage. EEOC v. Cherokee Nation, 871 F.2d 937 (10th Cir.1989); United States v. Newport News Shipbuilding & Dry Dock Co., 837 F.2d 162, 165-66 (4th Cir.1988); EEOC v. Ocean City Police Dept., 820 F.2d 1378 (4th Cir.1987); FTC v. Shaffner, 626 F.2d 32, 36 (7th Cir.1980); United States v. Frontier Airlines, Inc., 563 F.2d 1008, 1009 (10th Cir.1977); cf. Oklahoma Press Publishing Co. v. Walling," } ]

[ { "docid": "11497637", "title": "", "text": "district court was not authorized to decide the question of coverage or, on the basis of its adverse decision, to deny enforcement to the Secretary’s subpoena seeking relevant evidence on that question, because Congress had committed its initial determination to [the Secretary] We think . . . that Congress has authorized the Administrator, rather than the district courts in the first instance, to determine the question of coverage in the preliminary investigation of possibly existing violations . 327 U.S. at 211 & 214, 66 S.Ct. at 507 & 508. . Endicott Johnson Corp. v. Perkins, 317 U.S. at 503, 63 S.Ct. at 340 (quoting from Walsh-Healy Act § 5). . Id. at 507, 63 S.Ct. at 342. . Id. . But even if the determination of the gas supply issue was not primarily the duty of the FPC, the Trade Commission should still be es-topped from re-investigating and relitigating (/. e., collaterally attacking) the prior findings of fact of an equally (if not more) competent sister agency. On the facts of this case, application of collateral estoppel need not rest upon a primary jurisdiction-like policy. Indeed, before we could hold that the reserves question fell within the primary jurisdiction of the FPC (and correspondingly, outside the subject matter jurisdiction of the FTC), we would probably need to await an initial determination of this jurisdictional question by the FTC. See Safir v. Gibson, 432 F.2d at 144; cf. Endicott Johnson Corp. v. Perkins, 317 U.S. 501, 63 S.Ct. 339, 87 L.Ed. 424 (1943). . 432 F.2d at 143-44 (citations omitted) (emphasis added). . Dollar Vitamin Plan, Inc., 69 F.T.C. 933, 971 n.2 (1966). . 532 F.2d 1092 (7th Cir. 1976). . 532 F.2d 541 (6th Cir. 1976). . Regrettably, the majority opinion, at-of 180 U.S.App.D.C. n. 41, at 879 of 555 F.2d n. 41 and accompanying text, thoroughly confuses what it means by “these jurisdictional questions” and tries to lump in statutory coverage (jurisdiction) and collateral estoppel with the only “jurisdiction” argument the appellees made, i. e., “primary jurisdiction.” Endicott Johnson and that entire line of cases relied on by the" }, { "docid": "2367122", "title": "", "text": "the contested issue may first be litigated through established agency procedures. Christensen, 549 F.2d at 1324. See Federal Power Commission v. Louisiana Power & Light Co., 406 U.S. 621, 647, 92 S.Ct. 1827, 32 L.Ed.2d 369 (1972); Marine Engineers Beneficial Ass’n v. Interlake Steamship Co., 370 U.S. 173, 185, 82 S.Ct. 1237, 8 L.Ed.2d 418 (1962); Klicker v. Northwest Airlines, Inc., 563 F.2d 1310, 1313 (9th Cir. 1977). We affirm the district court’s finding that the FTC is not plainly operating outside the scope of its authority. C. Unconstitutionality of Section 10. The Unions alleged that they complied with the subpoenas duces tecum because they were threatened with criminal prosecution under § 10 of the Act. They seek a declaratory order that the section violates the separation-of-powers doctrine, denies due process, and denies the right to trial by jury. We do not reach the issue, however, because the mere possibility of prosecution here does not constitute a case or controversy sufficient to render the issue justiciable. O'Shea v. Littleton, 414 U.S. 488, 493-99, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974); Jensen v. National Marine Fisheries Service, 512 F.2d 1189, 1191 (9th Cir. 1975) (citing United Public Workers v. Mitchell, 330 U.S. 75, 89-90, 67 S.Ct. 556, 91 L.Ed. 754 (1947)). CASEY II The Unions appeal from the district court order enforcing the subpoenas ad testificandum. Such an order is final and appealable for purposes of 28 U.S.C. § 1291 (1970). E. g., FTC v. Texaco, Inc., 180 U.S.App.D.C. 390, 555 F.2d 862, 873 n.21, cert. denied, 431 U.S. 974, 97 S.Ct. 2940, 53 L.Ed.2d 1072 (1977). The district court’s role in a subpoena enforcement proceeding is strictly limited where the subpoena is attacked for lack of agency jurisdiction. The subpoena must be enforced if the information sought is “not plainly incompetent or irrelevant to any lawful purpose” of the FTC. Federal Maritime Commission v. Port of Seattle, 521 F.2d 431 (9th Cir. 1975) (quoting Endicott Johnson Corp. v. Perkins, 317 U.S. 501, 509, 63 S.Ct. 339, 87 L.Ed. 424 (1943)). Accord, FTC v. Swanson, 560 F.2d 1, 2 (1st Cir." }, { "docid": "11497451", "title": "", "text": "accept the producers’ arguments that only proved reserves are relevant. App. II 398a-402a, 431a, 439a-A43a. The limitation to proved reserves was also premised in part on an application of collateral estoppel. See discussion infra at- of 180 U.S.App.D.C., at 881 of 555 F.2d. . This standard was urged by the FTC in its first brief on appeal. FTC’s Brief at 16. In its supplementary brief the FTC argues that the pertinent inquiry is whether the requested material is “plainly irrelevant” to the investigation. Supp. Brief at 5, 31. The “plainly irrelevant” language is derived, of course, from the Supreme Court’s statement in Endicott Johnson that the evidence sought by the subpoena was not “plainly incompetent or irrelevant” to any lawful purpose of the Secretary. 317 U.S. at 509, 63 S.Ct. 339. The issue before the Endicott Court was the authority of the district court to decide the question of statutory coverage; the appropriate standard of relevance was not directly addressed. In Oklahoma Press and Morton Salt, decided after Endicott, the Court spoke of information “relevant” and “reasonably relevant,” respectively, to the inquiry. 327 U.S. at 209, 66 S.Ct. 494; 338 U.S. at 652, 70 S.Ct. 357. More recently, the Court has stated that, for enforcement of an Internal Revenue Service summons for records, the Commissioner must demonstrate, in ter alia, that the inquiry “may be relevant” to a legitimate purpose. United States v. Powell, 379 U.S. 48, 57, 85 S.Ct. 248, 13 L.Ed.2d 112 (1964). And in See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967), the Court noted, citing Morton Sait and Oklahoma Press, that when an administrative agency subpoenas corporate books or records, the subpoena must be “sufficiently limited in scope, relevant in purpose, and specific in directive so that compliance will not be unreasonably burdensome.” Id. at 544, 87 S.Ct. at 1740. While some courts of appeal have employed a “clearly” irrelevant standard in enforcement proceedings, see, e. g., FTC v. Feldman, 532 F.2d 1092, 1098 (7th Cir. 1976); FTC v. Standard American, Inc., 306 F.2d 231, 235 (3d Cir. 1962)," }, { "docid": "15341961", "title": "", "text": "* * * Such attendance of witnesses, and the production of such documentary evidence, may be required from any place in the United States, at any designated place of hearing. And in case of disobedience to a subpoena the Commission may invoke the aid of any court of the United States in requiring the attendance and testimony of witnesses and the production of documentary evidence. + * * * *. * Any person may be compelled to appear and depose and to produce documentary evidence in the same manner as witnesses may be compelled to appear and testify and produce documentary evidence before the Commission as hereinbefore provided. . Other courts have similarly described the responsibility of a district court: The district court’s role in a subpoena enforcement proceeding is strictly limited where the subpoena is attacked for lack of agency jurisdiction. The subpoena must be enforced if the information sought is “not plainly incompetent or irrelevant to any lawful purpose” of the FTC. Federal Maritime Commission v. Port of Seattle, 521 F.2d 431 (9th Cir. 1975) (quoting Endicott Johnson Corp. v. Perkins, 317 U.S. 501, 509, 63 S.Ct. 339, 87 L.Ed. 424 (1943)). Accord, FTC v. Swanson, 560 F.2d 1, 2 (1st Cir. 1977); FTC v. Feldman, 532 F.2d 1092, 1098 (7th Cir. 1976). See United States v. Morton Salt Co., 338 U.S. 632, 652, 70 S.Ct. 357, 94 L.Ed. 401 (1950); FTC v. Texaco, Inc., supra [180 U.S.App.D.C. 390 at 400-01 & n. 23,] 555 F.2d [862] at 872-73 & n. 23. Casey v. FTC, 578 F.2d 793, 799 (9th Cir. 1978). See also K. Davis, Administrative Law Treatise § 3.12 at 216 (1958), wherein the author, in discussing the extent of judicial inquiry in enforcing subpoenas, states: A court may always consider such questions as unreasonable searches and seizures, self-incrimination, undue breadth of the subpoena, improper inclusion of irrelevant infor mation, administrative authority to make the particular investigation, power to require disclosures concerning activities outside the agency’s regulatory authority, and proper issuance of the particular subpoena. (Footnotes omitted) . This proviso was added to Section 46 by" }, { "docid": "17736576", "title": "", "text": "own errors so as to moot judicial controversies”. Parisi v. United States, 405 U.S. 34, 37, 92 S.Ct. 815, 818, 31 L.Ed.2d 17 (1972). The exhaustion doctrine fundamentally requires that an agency be accorded an opportunity to determine initially whether it has jurisdiction. Marshall v. Able Contractors, Inc., 573 F.2d at 1057; State of California ex rel. Christensen v. FTC, 549 F.2d at 1324. Here “[pjrimary jurisdiction to determine questions of OSHA coverage is lodged in the statutorily created organ for hearing appeals of OSHA violation citations, the Occupational Safety and Health Review Commission”. Marshall v. Able Contractors, Inc., 573 F.2d at 1057. See also In re Restland Memorial Park, 540 F.2d 626 (3d Cir. 1976). The policy behind the exhaustion doctrine is well served in this case since “a determination of [§ 4(b)(1)] preemption requires an inquiry into complex issues of law and fact. Accordingly, it is proper for a court to defer examination of such difficult questions of agency jurisdiction until a party has fully exhausted its administrative remedies. . [T]he agency will be given a chance to apply its expertise”. Marshall v. Northwest Orient Airlines, Inc., 574 F.2d 119, 122 (2d Cir. 1978). Judicial intervention prior to an agency’s initial determination of its jurisdiction is appropriate only where: (1) there is clear evidence that exhaustion of administrative remedies will result in irreparable injury; (2) the agency’s jurisdiction is plainly lacking; and (3) the agency’s special expertise will be of no help on the question of its jurisdiction. Casey v. FTC, 578 F.2d 793, 796 (9th Cir. 1978); Marshall v. Able Contractors, Inc., 573 F.2d at 1057; State of California ex rel. Christensen v. FTC, 549 F.2d at 1323; Lone Star Cement Corp. v. FTC, 339 F.2d at 510, citing 3, K. Davis, Administrative Law Treatise, § 20.03 (1958 ed.). Under this test, there is little question that Burlington prematurely raised, and the district court improperly considered, the question of OSHA’s jurisdiction over the Laurel operation. Adjudication of Burlington’s jurisdictional defense before the OSHRC will present it with no irreparable injury unrelated to the contested citations which it" }, { "docid": "23669966", "title": "", "text": "Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958). Shawnee contends that this exception applies here; regardless of the statutory provisions, exhaustion was not required here because the Secretary’s jurisdiction over the tipple operation was challenged. The Leedom jurisdiction exception to the exhaustion doctrine is not automatically invoked whenever a challenge to the scope of an agency’s authority is raised. On the contrary, it is a narrow anomaly reserved for extreme situations. See American General Ins. Co. v. FTC, 496 F.2d 197, 200 (5th Cir. 1974). Thus, even when the issue of agency jurisdiction is raised, the exhaustion doctrine generally requires that an agency be accorded an opportunity to determine initially whether it has jurisdiction. West v. Bergland, 611 F.2d 710, 719 (8th Cir. 1979), cert. denied, 449 U.S. 821, 101 S.Ct. 79, 66 L.Ed.2d 23 (1980); Marshall v. Burlington Northern Inc., 595 F.2d 511, 513 (9th Cir. 1979); In re Restland Memorial Park, 540 F.2d 626, 628 (3rd Cir. 1976); Casey v. FTC, 578 F.2d 793, 798 (9th Cir. 1978); cf. United States v. City of Painesville, Ohio, 644 F.2d 1186, 1190 (6th Cir. 1981) (agency’s interpretation of its own regulations is controlling unless plainly erroneous). See also Public Lands Institute, Inc. v. Andrus, 497 F.Supp. 482, 486 (D.C.C. 1980). In many circumstances it is easier to theorize than to discern when an agency’s action is so far out of bounds, so beyond the realm of its delegated authority that the Leedom exception should be invoked. In grappling with this problem the courts have employed three criteria for determining whether the exhaustion requirement should be waived: 1) is the agency’s jurisdiction conspicuously lacking; 2) will the agency’s expertise assist in resolving the jurisdictional issue; and 3) will exhaustion of administrative remedies result in irreparable harm to the claimant. See Marshall v. Burlington Northern, Inc., 595 F.2d 511, 513 (9th Cir. 1979) and authorities cited therein. In deciding the “jurisdictional appearance” issue, the initial focus is on Shawnee’s contention that the Secretary exceeded his authority because Shawnee’s tipple is not an “activity ... in connection with" }, { "docid": "4329741", "title": "", "text": "are sufficient to give rise to a reasonable inference that ASAT, Inc. had control of the subpoenaed documents&emdash;a remand to the district court is unnecessary. See, e.g., Empagran S.A. v. F. Hoffman-LaRoche, Ltd., 388 F.3d 337, 345 (D.C.Cir.2004). In a series of cases the Supreme Court has limited the district court’s role in enforcing an administrative subpoena, beginning with Endicott Johnson Corp. v. Perkins, 317 U.S. 501, 509, 63 S.Ct. 339, 87 L.Ed. 424 (1943), and Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 209, 66 S.Ct. 494, 90 L.Ed. 614 (1946). Most relevantly, in United States v. Morton Salt Co., 338 U.S. 632, 70 S.Ct. 357, 94 L.Ed. 401 (1950), in the context of the Federal Trade Commission’s investigatory powers to require reports, the Supreme Court confined the judicial role to determining whether “the inquiry is within the authority of the agency, the demand is not too indefinite and the information sought is reasonably relevant.” Id. at 652-53, 70 S.Ct. 357; see also United States v. Powell, 379 U.S. 48, 57-58, 85 S.Ct. 248, 13 L.Ed.2d 112 (1964). With this instruction, this court has held, in light “of the important governmental interest in the expeditious investigation of possible unlawful activity,” that the district court’s role is “strictly limited.” Texaco, 555 F.2d at 872. The court has explained, however, that “[although the investigative powers of regulatory agencies are broad, they are not unlimited, and are subject to judicial review ‘[t]o protect against mistaken or arbitrary orders.’ ” In re FTC Line of Bus. Report Litig., 595 F.2d 685, 702 (D.C.Cir.1978) (quoting Morton Salt, 338 U.S. at 640, 70 S.Ct. 357); see also United States v. Markwood, 48 F.3d 969, 979 (6th Cir.1995); Burlington N. Ry. Co. v. Office of Inspector Gen., 983 F.2d 631, 638 (5th Cir.1993); United States v. Int’l Union of Petroleum & Indus. Workers, 870 F.2d 1450 (9th Cir.1989); cf. Univ. Medicine & Dentistry N.J. v. Corrigan, 347 F.3d 57, 64 (3d Cir.2003). But see United States v. Am. Target Adver., Inc., 257 F.3d 348, 354 (4th Cir.2001). See generally EEOC v. United Air Lines, Inc.," }, { "docid": "2367124", "title": "", "text": "1977); FTC v. Feldman, 532 F.2d 1092, 1098 (7th Cir. 1976). See United States v. Morton Salt Co., 338 U.S. 632, 652, 70 S.Ct. 357, 94 L.Ed. 401 (1950); FTC v. Texaco, Inc., supra, 555 F.2d at 872-73 & n.23. The FTC offered three plausible jurisdictional grounds to justify its investigation; a conclusive showing is not necessary to justify enforcing a subpoena. Marshall v. Able Contractors, Inc., 573 F.2d 1055 at 1056 (9th Cir. 1978); FMC v. Port of Seattle, supra, 521 F.2d at 436. In United States v. Morton Salt Co., 338 U.S. at 642-43, 70 S.Ct. at 364, the Court explained the proper role of administrative investigation: The only power that is involved here is the power to get information from those who best can give it and who are most interested in not doing so. Because judicial power is reluctant if not unable to summon evidence until it is shown to be relevant to issues in litigation, it does not follow that an administrative agency charged with seeing that the laws are enforced may not have and exercise powers of original inquiry. It has a power of inquisition, if one chooses to call it that, which is not derived from the judicial function. It is more analogous to the Grand Jury, which does not depend on a case or controversy for power to get evidence but can investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not. When investigative and accusatory duties are delegated by statute to an administrative body, it, too, may take steps to inform itself as to whether there is probable violation of the law. We think the same principles govern here and require that the FTC subpoenas be enforced. The stay order issued by this court on October 21, 1977 is vacated. AFFIRMED. . 15 U.S.C. § 45 (1976). The statute empowers and directs the FTC “to prevent persons, partnerships, or corporation . . . from using unfair methods of competition in or affecting commerce and unfair or deceptive acts or practices" }, { "docid": "21999540", "title": "", "text": "the proper forum for review of the protective order questions. Exxon Corp. v. FTC, 436 F.Supp. 1019, 1024 (D.Del.1977). In this proceeding the joint respondents, excluding Texaco, Inc., again challenge the adequacy of the protective order and request that this court impose its own protective order. Texaco resists enforcement in to to by challenging the Commission’s authority and the nature of the administrative proceeding. All of the respondents have made motions to dismiss the individual corporate presidents who also were named as respondents in this action. I. Enforcement of a FTC Subpoena The FTC has the authority to issue subpoenas and this court has the jurisdiction to enforce them under § 9 of the FTC Act, Í5 U.S.C. § 49 (1970 & Supp. V 1974) This court’s role in the enforcement of an administrative subpoena is strictly limited. Although the scope of the issues that can be litigated in an enforcement proceeding is narrow, the court’s function is “neither minor nor ministerial” Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 217 n.57, 66 S.Ct. 494, 90 L.Ed. 614 (1946). The court, however, need only ascertain whether “the inquiry is within the authority of the agency, the demand is not too indefinite and the information sought is reasonably relevant.” United States v. Morton Salt Co., 338 U.S. 632, 652, 70 S.Ct. 357, 369, 94 L.Ed. 401 (1970); see Endicott Johnson Corp. v. Perkins, 317 U.S. 501, 509, 63 S.Ct. 339, 87 L.Ed. 424 (1975); FTC v. Texaco, 180 U.S.App.D.C. 390, 399-400, 401-402 n.23, 407, 555 F.2d 862, 871-72, 873-74 n.23, 879 (1977) (en banc). In addition, a respondent may challenge an agency’s exercise of its subpoena power on the ground that it is unduly burdensome. Oklahoma Press Publishing Co., supra, 327 U.S. at 208, 66 S.Ct. 494. The FTC asserts that the subpoenas are within the Commission’s authority, seek relevant information, and are not unduly burdensome. The assertions have not been challenged by the respondents, except Texaco. Although Texaco’s contentions will be dealt with separately later, it should be noted here that the FTC has shown to this court’s satisfaction" }, { "docid": "22463180", "title": "", "text": "rendering a complete decision on the alleged violation. ... Id. at 509, 63 S.Ct. at 343. Endicott Johnson was a watershed in administrative investigations. It was now established that an agency could conduct an investigation even though it had no probable cause to believe that any particular statute was being violated. See United States v. Powell, 379 U.S. 48, 57, 85 S.Ct. 248, 254-55, 13 L.Ed.2d 112 (1964) (agency “need not meet any standard of probable cause to obtain enforcement of [its] summons”); Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 201, 66 S.Ct. 494, 501, 90 L.Ed. 614 (1946) (agency may conduct an administrative investigation “to discover and procure evidence, not to prove a pending charge or complaint, but upon which to make one if, in the [agency’s] judgment, the facts thus discovered should justify doing so”). Indeed, an administrative agency, like a grand jury, could now “investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not.” United States v. Morton Salt Co., 338 U.S. 632, 642-43, 70 S.Ct. 357, 364, 94 L.Ed. 401 (1950); see also SEC v. Brigadoon Scotch Distrib. Co., 480 F.2d 1047, 1053 (2d Cir.1973), cert. denied, 415 U.S. 915, 94 S.Ct. 1410, 39 L.Ed.2d 469 (1974) (agency “must be free without undue interference or delay to conduct an investigation which will adequately develop a factual basis for a determination as to whether particular activities come within the [agency’s] regulatory authority”); United States v. Oncology Servs. Corp., 60 F.3d 1015, 1018-19 (3d Cir.1995). Moreover, at the subpoena enforcement stage, courts need not determine whether the subpoenaed party is within the agency’s jurisdiction or covered by the statute it administers; rather the coverage determination should wait until an enforcement action is brought against the subpoenaed party. See Endicott Johnson, 317 U.S. at 509, 63 S.Ct. at 343; Brigadoon, 480 F.2d at 1052-53. But see Reich v. Great Lakes Indian Fish and Wildlife Comm’n, 4 F.3d 490, 492 (7th Cir.1993) (statutory coverage could be decided at subpoena enforcement stage, if target of investigation admitted wrongdoing" }, { "docid": "11497405", "title": "", "text": "consolidation services and in refusing to permit the Commission to inquire into the “details” of the consolidation services. 521 F.2d 431, 433-436 (1975). Similarly, the Seventh Circuit held in SEC v. Savage that the Commission was not required to establish its jurisdiction by demonstrating that a company’s commodities future contracts were “securities” within the meaning of the Securities Act before the subpoena would be enforced. 513 F.2d 188, 189 (1975). The court emphasized that the company “would require SEC to answer at the outset of its investigation the possibly doubtful questions of fact and law that the investigation is designed and authorized to illuminate.” Id. While the defense of collateral estoppel is very much akin to these jurisdictional questions, it is, if anything, even more inappropriate in the investigatory context than questions of statutory coverage. Because a collateral estoppel defense rests on factual identities, an enforcing court to evaluate this defense must preview the ultimate complaint. In the instant case, the court must not only foretell the various theories which the FTC’s evidence might support and all issues which conceivably might be raised in a FTC proceeding, but must also define all issues decided by the FPC. The court then must determine if an issue decided in the first proceeding is identical to an issue to be decided in the second proceeding. Such an exercise is unwise, if not impossible, and is in clear violation of the Supreme Court’s admonition in Oklahoma Press that an agency’s inquiry should not be limited by “forecasts” of the “probable results.” 327 U.S. at 216, 66 S.Ct. 494. That the enforcing court should not undercut the agency’s investigative function by such hypotheses has been recognized by other courts of appeal. The Sixth and Seventh Circuits recently enforced subpoenas issued by the FTC in an investigation of taxicab companies for possible violations of the FTC Act, despite claims of res judicata and collateral estoppel based upon prior Government actions brought under the Sherman Act. In FTC v. Markin, 532 F.2d 541 (6 Cir. 1976), the Sixth Circuit, analogizing to cases involving a question of agency" }, { "docid": "22463181", "title": "", "text": "Co., 338 U.S. 632, 642-43, 70 S.Ct. 357, 364, 94 L.Ed. 401 (1950); see also SEC v. Brigadoon Scotch Distrib. Co., 480 F.2d 1047, 1053 (2d Cir.1973), cert. denied, 415 U.S. 915, 94 S.Ct. 1410, 39 L.Ed.2d 469 (1974) (agency “must be free without undue interference or delay to conduct an investigation which will adequately develop a factual basis for a determination as to whether particular activities come within the [agency’s] regulatory authority”); United States v. Oncology Servs. Corp., 60 F.3d 1015, 1018-19 (3d Cir.1995). Moreover, at the subpoena enforcement stage, courts need not determine whether the subpoenaed party is within the agency’s jurisdiction or covered by the statute it administers; rather the coverage determination should wait until an enforcement action is brought against the subpoenaed party. See Endicott Johnson, 317 U.S. at 509, 63 S.Ct. at 343; Brigadoon, 480 F.2d at 1052-53. But see Reich v. Great Lakes Indian Fish and Wildlife Comm’n, 4 F.3d 490, 492 (7th Cir.1993) (statutory coverage could be decided at subpoena enforcement stage, if target of investigation admitted wrongdoing and coverage issue could be determined without examining subpoenaed documents). This is not to say that an agency may conduct any investigation it may conjure up; the disclosure sought must always be reasonable. Oklahoma Press, 327 U.S. at 209, 66 S.Ct. at 505-06; SEC v. Arthur Young & Co., 584 F.2d 1018, 1023 (D.C.Cir.1978), cert. denied, 439 U.S. 1071, 99 S.Ct. 841, 59 L.Ed.2d 37 (1979). This limitation of reasonableness is satisfied “[s]o long as an agency establishes that an investigation “will be conducted pursuant to a legitimate purpose, that the inquiry may be relevant to the purpose, that the information sought is not already within [its] possession, and that the administrative steps required ... have been followed.’ ” SEC v. Wall St. Transcript Corp., 422 F.2d 1371, 1375 (2d Cir.), cert. denied, 398 U.S. 958, 90 S.Ct. 2170, 26 L.Ed.2d 542 (1970) (quoting Powell, 379 U.S. at 57-58, 85 S.Ct. at 254-55); see also Morton Salt, 338 U.S. at 652, 70 S.Ct. at 368-69; Brigadoon, 480 F.2d at 1053. B. The NRC Subpoena Respondents" }, { "docid": "23669965", "title": "", "text": "185, 193, 89 S.Ct. 1657, 1662, 23 L.Ed.2d 194 (1969). Where pursuit of administrative remedies does not serve the purposes behind the exhaustion doctrine, the courts have allowed a number of exceptions. Thus, exhaustion is not required if administrative remedies are inadequate or not efficacious, see Humana of South Carolina, Inc. v. Califano, 590 F.2d 1070, 1081 (D.C.Cir.1978); where pursuit of administrative remedies would be a futile gesture, see Porter County Chapter of the Izaak Walton League of America, Inc. v. Costle, 571 F.2d 359, 363 (7th Cir.), cert. denied, 439 U.S. 834, 99 S.Ct. 115, 58 L.Ed.2d 130 (1978);. where irreparable injury will result unless immediate judicial review is permitted, Rhodes v. United States, 574 F.2d 1179, 1181 (5th Cir. 1978); or where the administrative proceeding would be void, see Winterberger v. Teamsters, Local Union 162, 558 F.2d 923, 925 (9th Cir. 1977). Another exception to the exhaustion doctrine is that a litigant may bypass available administrative procedures where there is a readily observable usurpation of power not granted to the agency by Congress. Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958). Shawnee contends that this exception applies here; regardless of the statutory provisions, exhaustion was not required here because the Secretary’s jurisdiction over the tipple operation was challenged. The Leedom jurisdiction exception to the exhaustion doctrine is not automatically invoked whenever a challenge to the scope of an agency’s authority is raised. On the contrary, it is a narrow anomaly reserved for extreme situations. See American General Ins. Co. v. FTC, 496 F.2d 197, 200 (5th Cir. 1974). Thus, even when the issue of agency jurisdiction is raised, the exhaustion doctrine generally requires that an agency be accorded an opportunity to determine initially whether it has jurisdiction. West v. Bergland, 611 F.2d 710, 719 (8th Cir. 1979), cert. denied, 449 U.S. 821, 101 S.Ct. 79, 66 L.Ed.2d 23 (1980); Marshall v. Burlington Northern Inc., 595 F.2d 511, 513 (9th Cir. 1979); In re Restland Memorial Park, 540 F.2d 626, 628 (3rd Cir. 1976); Casey v. FTC, 578 F.2d 793, 798 (9th Cir. 1978);" }, { "docid": "11497404", "title": "", "text": "foreclosed or at least substantially delayed. As the Court stated in Oklahoma Press, [Petitioners’ view, if accepted, would stop much if not all of investigation in the public interest at the threshold of inquiry and, in the case of the Administrator, is designed avowedly to do so. This would render substantially impossible his effective discharge of the duties of investigation and enforcement which Congress has placed upon him. 327 U.S. at 213, 66 S.Ct. at 508. No substantive rights are negated by this restriction, for if a formal complaint is issued, subpoenaed parties may assert their defenses in the subsequent administrative proceeding. Further, the agency’s final decision in that adjudicatory proceeding is reviewable by a court of appeals. These principles have consistently been applied when jurisdictional defenses have been raised in enforcement proceedings. Two recent cases are illustrative. In FMC v. Port of Seattle, the Ninth Circuit held that the district court erred in limiting enforcement of Maritime Commission discovery orders to only those facts necessary to determine the Commission’s jurisdiction to investigate the Port’s consolidation services and in refusing to permit the Commission to inquire into the “details” of the consolidation services. 521 F.2d 431, 433-436 (1975). Similarly, the Seventh Circuit held in SEC v. Savage that the Commission was not required to establish its jurisdiction by demonstrating that a company’s commodities future contracts were “securities” within the meaning of the Securities Act before the subpoena would be enforced. 513 F.2d 188, 189 (1975). The court emphasized that the company “would require SEC to answer at the outset of its investigation the possibly doubtful questions of fact and law that the investigation is designed and authorized to illuminate.” Id. While the defense of collateral estoppel is very much akin to these jurisdictional questions, it is, if anything, even more inappropriate in the investigatory context than questions of statutory coverage. Because a collateral estoppel defense rests on factual identities, an enforcing court to evaluate this defense must preview the ultimate complaint. In the instant case, the court must not only foretell the various theories which the FTC’s evidence might support" }, { "docid": "15561407", "title": "", "text": "657(b) powers is, by the statute’s very terms, discretionary. Moreover, it is hardly a novel proposition that an administrative agency can utilize its investigatory or subpoena powers and that a federal court can grant relief to aid it in doing so without a prior conclusive showing of statutory coverage. See Oklahoma. Press Publishing Co. v. Walling, 327 U.S. 186, 66 S.Ct. 494, 90 L.Ed. 614 (1946); Endicott-Johnson Corp. v. Perkins, 317 U.S. 501, 63 S.Ct. 339, 87 L.Ed. 424 (1943); Federal Maritime Comm’n v. Port of Seattle, 521 F.2d 431 (9th Cir. 1975). Generally the agency should make the initial determination of its own jurisdiction. State of Cal. ex rel. Christensen v. F. T. C., 549 F.2d 1321 (9th Cir. 1977). Primary jurisdiction to determine questions of OSHA coverage\" is lodged in the statutorily created organ for hearing appeals of OSHA violation citations, the Occupational Safety and Health Review Commission. Matter of Restland Memorial Park, 540 F.2d 626 (3rd Cir. 1976). Able should raise the question of statutory coverage in an administrative appeal contesting the validity of any citation it may receive as a result of OSHA inspections. Before a federal court reviews the question of OSHA jurisdiction, sound judicial policy requires that Able exhaust its administrative remedies. Parisi v. Davidson, 405 U.S. 34, 92 S.Ct. 815, 31 L.Ed.2d 17 (1972); State of Cal. ex rel. Christensen v. F. T. C., supra; Am. Fed. of Gov’t Employees, Local 1668 v. Dunn, 561 F.2d 1310 (9th Cir. 1977). See also Lone Star Cement Corp. v. F. T. C., 339 F.2d 505 (9th Cir. 1964). Application of the exhaustion of remedies doctrine is appropriate here. Able would not be exposed to irreparable injury by a requirement that it first contest in an administrative forum whether it is within OSHA’s reach. There appears to be little doubt about jurisdiction, and the administrative agency is particularly competent to consider the question of statutory coverage. State of California ex rel. Christensen v. F. T. C., supra; Lone Star Cement Corp. v. F. T. C., supra, 339 F.2d at 510 citing 3 K. Davis, Administrative Law" }, { "docid": "15561406", "title": "", "text": "PER CURIAM: Able Contractors (Able) appeals from a district court order compelling it to submit to inspections under the Occupational Safety and Health Act (OSHA), 29 U.S.C. § 651, et seq. The Secretary of Labor sought the injunction after Able on several occasions refused inspectors access to its premises and worksites. The crux of Able’s defense was that before inspections under § 657(a) can proceed the Secretary must prove that Able is an employer “engaged in a business affecting commerce,” [§ 652(5)] and therefore subject to OSHA’s coverage. Able argues that the Secretary must resort to a pre-inspection evidentiary hearing, utilizing his § 657(b) subpoena powers when statutory coverage is in issue. It is also asserted that Congress would be exceeding its constitutional powers to authorize inspections without a prior showing of coverage under the Act. Abie’s defense is without merit. Requiring such a hearing would totally frustrate OSHA’s express objective of establishing a system of inspections executed without undue delay or advance notice. See §§ 657(a), 666(f). Furthermore, the Secretary’s resort to his § 657(b) powers is, by the statute’s very terms, discretionary. Moreover, it is hardly a novel proposition that an administrative agency can utilize its investigatory or subpoena powers and that a federal court can grant relief to aid it in doing so without a prior conclusive showing of statutory coverage. See Oklahoma. Press Publishing Co. v. Walling, 327 U.S. 186, 66 S.Ct. 494, 90 L.Ed. 614 (1946); Endicott-Johnson Corp. v. Perkins, 317 U.S. 501, 63 S.Ct. 339, 87 L.Ed. 424 (1943); Federal Maritime Comm’n v. Port of Seattle, 521 F.2d 431 (9th Cir. 1975). Generally the agency should make the initial determination of its own jurisdiction. State of Cal. ex rel. Christensen v. F. T. C., 549 F.2d 1321 (9th Cir. 1977). Primary jurisdiction to determine questions of OSHA coverage\" is lodged in the statutorily created organ for hearing appeals of OSHA violation citations, the Occupational Safety and Health Review Commission. Matter of Restland Memorial Park, 540 F.2d 626 (3rd Cir. 1976). Able should raise the question of statutory coverage in an administrative appeal contesting the" }, { "docid": "11497636", "title": "", "text": "v. Biderman, 536 F.2d 820 (9th Cir. 1976). . Supplemental Brief for Appellant on Rehearing En Banc (filed 31 March 1976) at 10. . A. Duda & Sons Cooperative Ass’n v. United States, 495 F.2d 193, 197 (5th Cir. 1974), quoting from Painters Dist. Council No. 38, Bhd. of Painters, Decorators and Paperhangers v. Edgewood Contracting Co., 416 F.2d 1081 (5th Cir. 1969). . 317 U.S. 501, 63 S.Ct. 339, 87 L.Ed. 424 (1943). . 327 U.S. 186, 66 S.Ct. 494, 90 L.Ed. 614 (1946). . Such as FMC v. Port of Seattle, 521 F.2d 431 (9th Cir. 1975); SEC v. Savage, 513 F.2d 188 (7th Cir. 1975); SEC v. Brigadoon Distrib. Co., 480 F.2d 1047 (2d Cir. 1973), cert, denied, 415 U.S. 915, 94 S.Ct. 1410, 39 L.Ed.2d 469 (1974); FTC v. Gibson, 460 F.2d 605 (5th Cir.). . This, as the Supreme Court recognized in Oklahoma Press, was the gravamen in both Endicott Johnson and Oklahoma Press: [I]n the Endicott Johnson case . . . [we] hold that under the Walsh-Healy Act the district court was not authorized to decide the question of coverage or, on the basis of its adverse decision, to deny enforcement to the Secretary’s subpoena seeking relevant evidence on that question, because Congress had committed its initial determination to [the Secretary] We think . . . that Congress has authorized the Administrator, rather than the district courts in the first instance, to determine the question of coverage in the preliminary investigation of possibly existing violations . 327 U.S. at 211 & 214, 66 S.Ct. at 507 & 508. . Endicott Johnson Corp. v. Perkins, 317 U.S. at 503, 63 S.Ct. at 340 (quoting from Walsh-Healy Act § 5). . Id. at 507, 63 S.Ct. at 342. . Id. . But even if the determination of the gas supply issue was not primarily the duty of the FPC, the Trade Commission should still be es-topped from re-investigating and relitigating (/. e., collaterally attacking) the prior findings of fact of an equally (if not more) competent sister agency. On the facts of this case, application of" }, { "docid": "2367123", "title": "", "text": "669, 38 L.Ed.2d 674 (1974); Jensen v. National Marine Fisheries Service, 512 F.2d 1189, 1191 (9th Cir. 1975) (citing United Public Workers v. Mitchell, 330 U.S. 75, 89-90, 67 S.Ct. 556, 91 L.Ed. 754 (1947)). CASEY II The Unions appeal from the district court order enforcing the subpoenas ad testificandum. Such an order is final and appealable for purposes of 28 U.S.C. § 1291 (1970). E. g., FTC v. Texaco, Inc., 180 U.S.App.D.C. 390, 555 F.2d 862, 873 n.21, cert. denied, 431 U.S. 974, 97 S.Ct. 2940, 53 L.Ed.2d 1072 (1977). The district court’s role in a subpoena enforcement proceeding is strictly limited where the subpoena is attacked for lack of agency jurisdiction. The subpoena must be enforced if the information sought is “not plainly incompetent or irrelevant to any lawful purpose” of the FTC. Federal Maritime Commission v. Port of Seattle, 521 F.2d 431 (9th Cir. 1975) (quoting Endicott Johnson Corp. v. Perkins, 317 U.S. 501, 509, 63 S.Ct. 339, 87 L.Ed. 424 (1943)). Accord, FTC v. Swanson, 560 F.2d 1, 2 (1st Cir. 1977); FTC v. Feldman, 532 F.2d 1092, 1098 (7th Cir. 1976). See United States v. Morton Salt Co., 338 U.S. 632, 652, 70 S.Ct. 357, 94 L.Ed. 401 (1950); FTC v. Texaco, Inc., supra, 555 F.2d at 872-73 & n.23. The FTC offered three plausible jurisdictional grounds to justify its investigation; a conclusive showing is not necessary to justify enforcing a subpoena. Marshall v. Able Contractors, Inc., 573 F.2d 1055 at 1056 (9th Cir. 1978); FMC v. Port of Seattle, supra, 521 F.2d at 436. In United States v. Morton Salt Co., 338 U.S. at 642-43, 70 S.Ct. at 364, the Court explained the proper role of administrative investigation: The only power that is involved here is the power to get information from those who best can give it and who are most interested in not doing so. Because judicial power is reluctant if not unable to summon evidence until it is shown to be relevant to issues in litigation, it does not follow that an administrative agency charged with seeing that the laws are" }, { "docid": "12697906", "title": "", "text": "is a question of law, reviewable de novo in this court. See United States v. McConney, 728 F.2d 1195, 1201 (9th Cir). (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). The application of that standard to the facts of this case is also reviewable de novo since appellate review requires consideration of legal concepts rather than an essentially factual inquiry. McConney, 728 F.2d at 1204. C. JUDICIAL REVIEW OF EPA SUBPOENA An EPA subpoena is not self-enforcing. A recipient of an EPA subpoena may refrain from complying with it, without penalty, until directed otherwise by a federal court order. See SEC v. Jerry T O’Brien Corp., 467 U.S. 735, 741, 104 S.Ct. 2720, 2724-25, 81 L.Ed.2d 615 (1984). The EPA Administrator is authorized to petition a federal district court to order compliance. 15 U.S.C. § 2610(c). In considering the subpoena in this case, the district court correctly articulated and applied the Ninth Circuit standard of judicial scrutiny. In EEOC v. Children’s Hospital Medical Center of Northern Nevada, 719 F.2d 1426 (9th Cir.1983), an en banc panel of this court announced the following test to determine when a court should enforce administrative investigative subpoenas: The scope of the judicial inquiry in an EEOC or any other agency subpoena enforcement proceeding is quite narrow. The critical questions are: (1) whether Congress has granted the authority to investigate; (2) whether procedural requirements have been followed; and (3) whether the evidence is relevant and material to the investigation. Id. at 1428 (citing Endicott Johnson Corp. v. Perkins, 317 U.S. 501, 508-09, 63 S.Ct. 339, 342-43, 87 L.Ed. 424 (1943)). If the agency demonstrates the existence of these factors, the court should enforce the subpoena unless the party subpoenaed proves the inquiry is unreasonably overbroad or unduly burdensome. Id. (citing Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 217, 66 S.Ct. 494, 509-10, 90 L.Ed. 614 (1946)). Each prong of the Children’s Hospital test is met in this case. Although the EPA has no power to subpoena sworn testimony under the CWA, it does under the TSCA. 15" }, { "docid": "5944566", "title": "", "text": "cannot be sustained. As with other administrative agencies, Congress has given the Board subpoena power, but, in § 11(2) of the NLRA, has relegated it to resort to the district courts for enforcement. 29 U.S.C. § 161(2) (1976). When it seeks such enforcement the Board, like other agencies, acts as an adverse party in a civil action. Interstate Commerce Commission v. Brimson, 154 U.S. 447, 14 S.Ct. 1125, 38 L.Ed. 1047 (1894). In order to obtain enforcement, agencies must show that the subpoena is for subject matter relevant to an inquiry within their statutory mandate. Endicott Johnson Corp. v. Perkins, 317 U.S. 501, 63 S.Ct. 339, 87 L.Ed. 424 (1943). Courts must insist that the agency “not act arbitrarily or in excess of [its] statutory authority . . . .” Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 216, 66 S.Ct. 494, 509, 90 L.Ed. 614 (1946). A court will ordinarily accept as sufficient the agency’s pleading that it has reason to believe the matter under investigation is within the coverage of the statute it administers. A prior showing of probable cause as to agency jurisdiction is not required, and the agency need not have actually commenced the proceedings for which the material is sought. NLRB v. Kingston Trap Rock Co., 222 F.2d 299, 301-02 (3d Cir. 1955). The court may even, in appropriate cases, enforce the subpoena without providing a full hearing. CAB v. Hermann, 353 U.S. 322, 77 S.Ct. 804, 1 L.Ed.2d 852 (1957). But where the defendant in the enforcement proceeding has articulated sufficient allegations to put in issue the legitimacy of the agency’s purpose in issuing the subpoena, not only may a hearing be appropriate, but discovery in aid of the development of facts at the hearing may be required. See United States v. LaSalle National Bank, 437 U.S. 298, 98 S.Ct. 2357, 57 L.Ed.2d 221 (1978); United States v. Genser, 595 F.2d 146 (3d Cir. 1979); United States v. McCarthy, 514 F.2d 368 (3d Cir. 1975). Of course, the burden on the party to whom the subpoena is addressed is not a meager one." } ]

[ { "docid": "3472452", "title": "", "text": "the addition of Section 110 to the statute was not intended to expand the preservationist responsibilities of federal agencies beyond what the NHPA already required. Moreover, the Section 110 Guidelines demonstrate that the Secretary of the Interior has interpreted Section 110 to embody the requirement that agencies thoroughly consider preservationist goals in all aspects of agency decisionmaking but that Section 110 does not itself affirmatively mandate the preservation of historic buildings or other resources. The Court therefore concludes that Section 110, read in conjunction with Section 106, the statute as a whole and the case law, did not require Walter Reed to undertake any preservation beyond what was necessary to comply to the fullest extent possible with, and in the spirit of, the Section 106 consultation process and with its own Historic Preservation Plan. While the Army could and, in a perfect world, should have done more to preserve the Historic District, the APA does not permit this Court to substitute its judgment for that of the agency with respect to resource allocations, so long as those allocations are not arbitrary or capricious, an abuse of discretion or contrary to law. See Citizens to Preserve Overton Park v. Volpe, 401 U.S. at 415, 91 S.Ct. at 823. While the Court may disagree with the Army’s decisions—individual and cumulative—to permit the buildings of the Historic District to deteriorate, the Court finds that the Army’s expenditure of nearly two million dollars in repairs and maintenance since 1992 was not insignificant, consistent with Walter Reed’s mission and mandate. The Court concludes that the Army’s level of expenditure, although low in relation to the expensive preservation needs of the Historic District, did not constitute an abuse of discretion or an arbitrary and capricious response to the dictates of Section 110, the Secretary of the Interior’s Guidelines and Army Regulation 420-40. The Army’s course of conduct since 1992 therefore was permissible under the NHPA and the Court finds no basis in law on which to require the Army to invest any more funds in the District. It may seem ironic for the Court to find" } ]

[ { "docid": "10468277", "title": "", "text": "right to sell such mortgage.” However, the plaintiffs do contend that the Secretary’s decision to exercise this statutory authority was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” within the meaning of the APA, 5 U.S.C. § 706(2)(A). The scope of judicial review over agency action under the “arbitrary and capricious” standard is a narrow one, and the court must not simply substitute its judgment for that of the agency. See Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866, 77 L.Ed.2d 443 (1983). A reviewing court must “consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285, 95 S.Ct. 438, 442, 42 L.Ed.2d 447 (1974). Agency action is arbitrary and capricious “if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Motor Vehicle Manufacturers, 463 U.S. at 43, 103 S.Ct. at 2866. Although the standard is deferential to agency expertise, it does not shield the Secretary’s actions “from a thorough, probing, in-depth review.” Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971). Several other courts have had occasion to address claims that the Secretary of HUD abused his discretion by ignoring the relevant policies underlying the National Housing Act. In United States v. Winthrop Towers, 628 F.2d 1028 (7th Cir.1980), the Seventh Circuit reversed a district court’s ruling that HUD’s decision to foreclose on a mortgage was “committed to agency discretion by law” and therefore unreviewable under the APA, 5 U.S.C. § 701. The court noted that the National Housing Act specifically requires HUD to exercise its powers," }, { "docid": "21262026", "title": "", "text": "for energy transactions in the Pacific Northwest. FERC contends that we lack jurisdiction to review its denial of refunds because this decision is committed to agency discretion by law. We lack jurisdiction to review “an agency’s decision not to prosecute or enforce, whether through civil or criminal process.” Heckler v. Chaney, 470 U.S. 821, 831, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985); 5 U.S.C. § 701(a)(2). This is because “an agency decision not to enforce often involves a complicated balancing of a number of factors which are peculiarly within its expertise,” such as questions about the best use of the agency’s resources. Heckler, 470 U.S. at 831, 105 S.Ct. 1649. The Supreme Court has cautioned, however, that this exception to judicial review is a narrow one, id. at 838, 105 S.Ct. 1649; Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), over-mled on other grounds by Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977), limited to those situations in which there is no meaningful standard against which to judge an agency’s decision not to act, Heckler, 470 U.S. at 830, 105 S.Ct. 1649. In those situations, the concern is that courts should not intrude upon an agency’s prerogative to pick and choose its priorities, and allocate its resources accordingly, by demanding that an agency prosecute or enforce. Thus, Heckler limited the presumption of unre-view ability to “agency refusals to institute investigative or enforcement proceedings.” Id. at 838, 105 S.Ct. 1649 (emphasis added). When an agency has instituted proceedings, meaningful standards exist to review what the agency has done: “when an agency does act to enforce, that action itself provides a focus for judicial review, inasmuch as the agency must have exercised its power in some manner. The action at least can be reviewed to determine whether the agency exceeded its statutory powers.” Id. at 832, 105 S.Ct. 1649 (emphasis in original). See also MCI Telecomms. Corp. v. FCC, 917 F.2d 30, 41-42 (D.C.Cir.1990) (“It is one thing for the FCC to decline to investigate a" }, { "docid": "15674299", "title": "", "text": "mortgage assignment was arbitrary and capricious. She also contends that HUD improperly applied a per se rule that a defaulting mortgagor who loses her job and is denied unemployment benefits does not qualify for an assignment regardless of the circumstances surrounding the job loss. Our review of HUD’s denial of Pozzie’s request for participation in the mortgage assignment program is governed by the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701 et seq. The APA provides that an agency action may be set aside if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Under this standard, our sole task is to determine “whether the [agency’s] decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 824, 28 L.Ed.2d 136 (1971). The “arbitrary or capricious” standard of review is a deferential one which presumes that agency actions are valid as long as the decision is supported by a “rational basis.” Western & Southern Life Ins. Co. v. Smith, 859 F.2d 407, 410 (6th Cir.1988); see also Kisser v. Cisneros, 14 F.3d 615, 618 (D.C.Cir.1994) (review is “highly deferential”); Hussion v. Madigan, 950 F.2d 1546, 1550 (11th Cir.1992). Although the agency’s decision is entitled to a presumption of validity, we must nevertheless engage in a “substantial inquiry,” or in other words, “a thorough, probing, in-depth review.” Citizens to Preserve Overton Park, 401 U.S. at 415, 91 S.Ct. at 823. A. Circumstances Beyond Mortgagor’s Control Pozzie’s principal contention on appeal is that her discharge was outside her control because it came “out of the blue.” She argues that in light of her record of nearly fifteen years of service, her “glowing” performance reviews, her employer’s prior tolerance of her tardiness, and her previous supervisor’s willingness to grant her flexible working hours to accommodate her commute, she had no notice that her job was in jeopardy and thus lacked time to “bring her fate within her control.” Although the" }, { "docid": "51249", "title": "", "text": "Master has adopted a permissible interpretation of the Act that is entitled to deference. Therefore, the district court properly dismissed the plaintiffs’ claims challenging these regulations. C. Consumption Rate for Single Childless Decedents Finally, the Colaio plaintiffs challenge as “arbitrary and capricious” under the APA the disproportionately higher consumption rates used by the Special Master to calculate presumptive losses for single decedents with no children. We lack jurisdiction to decide this issue. “[U]nder § 701(a)(2) agency action is not subject to judicial review to the extent that such action is committed to agency discretion by law.” Lunney v. United States, 319 F.3d 550, 558 (2d Cir.2003) (internal quotation marks and citation omitted). There is no jurisdiction if the governing statute or regulations “[are] drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion.” Heckler v. Chaney, 470 U.S. 821, 830, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985). The APA’s “arbitrary and capricious” standard does not by itself provide a “meaningful standard” of review. Lunney, 319 F.3d at 559 n. 5. Dismissal for lack of jurisdiction is appropriate where there is “no law to apply.” Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). Here, there is no law to apply because no standard of review — other than the APA’s “arbitrary and capricious” standard itself — governs. The Act does not guide or limit the Special Master’s discretion on this point: it expressly allows the Attorney General and the Special Master to adopt all substantive and procedural regulations necessary to resolve claims, and places the resolution of claims beyond the reach of judicial review. See Act §§ 404(a)(2) & 405(b)(3). Since we have found the regulations, interpretive methodologies and policies to be consistent with the meaning of the Act, calculation of compensation, even if based on disproportionate consumption rates, represents an exercise of the broad discretion given to the Special Master. There is simply no “meaningful standard” against wdiich to judge the exercise of that discretion. Conclusion For the foregoing reasons, we" }, { "docid": "15674298", "title": "", "text": "defaulting on your mortgage payments was the loss of employment. The documentation provided indicates that you were discharged for excessive tardiness and for working unauthorized overtime even though you had been warned about these problems on numerous occasions. You were also denied unemployment benefits because of this. It is therefore the decision of this Department that your discharge was not caused by circumstances beyond your control. Pozzie then sought judicial review. In March 1994, the district court concluded that HUD’s final decision was not arbitrary, capricious, or an abuse of discretion. The court held that HUD committed no “clear error in judgment” in denying Pozzie’s mortgage assignment; according to the court, HUD could rationally conclude that arriving at work on time and working only authorized hours were circumstances of work life within Pozzie’s control. Pozzie v. United States Dep’t of Hous. & Urban Dev., No. 93 C 1085, slip op. at 15, 1994 WL 96687, at *7 (N.D.Ill. Mar. 18, 1994). Pozzie appealed. II. Discussion On appeal, Pozzie argues that HUD’s decision to reject her mortgage assignment was arbitrary and capricious. She also contends that HUD improperly applied a per se rule that a defaulting mortgagor who loses her job and is denied unemployment benefits does not qualify for an assignment regardless of the circumstances surrounding the job loss. Our review of HUD’s denial of Pozzie’s request for participation in the mortgage assignment program is governed by the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701 et seq. The APA provides that an agency action may be set aside if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Under this standard, our sole task is to determine “whether the [agency’s] decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 824, 28 L.Ed.2d 136 (1971). The “arbitrary or capricious” standard of review is a deferential one which presumes that agency actions are valid as long" }, { "docid": "19065344", "title": "", "text": "A.R. 2618.) 28. On September 22, 1997, HUD executed the fifth amended UDAG agreement based on the City’s revised request for a fifth amendment to the UDAG. (Fed.A.R.93.) On October 14, 1997, the City executed the fifth amended UDAG agreement. Id. II. LEGAL STANDARD A. Administrative Procedure Act (“APA”) Claims for review by a federal court of final agency action are determined under the Administrative Procedure Act (“APA”), unless another statute precludes such review. 5 U.S.C. § 702; see, e.g., Advanced Career Training v. Riley, No. 96-7065, 1997 WL 476275, at *7 (E.D.Pa. Aug.18, 1997). The parties agree that the challenged actions in this case constitute “final action” and that review under the APA is appropriate. 5 U.S.C. § 704. In reviewing claims under the APA, the arbitrary and capricious standard of review applies. 5 U.S.C. § 706(2)(A). This standard requires courts to make a “substantial inquiry.” C.K v. New Jersey Dep’t of Health and Human Servs., 92 F.3d 171, 182 (3d Cir.1996) (citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971)). While this inquiry “is to be searching and careful, the ultimate standard of review is a narrow one.” Overton Park, 401 U.S. at 416, 91 S.Ct. 814; C.K, 92 F.3d at 182 (citing id.). Agency action “is entitled to a presumption of regularity,” and “a court ‘is not empowered to substitute its judgment for that of the agency.’ ” Overton Park, 401 U.S. at 415, 91 S.Ct. 814. The reviewing court’s inquiry must “be based on the full administrative record that was before the [decisionmaker] at the time he made his decision.” Overton Park, 401 U.S. at 420, 91 S.Ct. 814; C.K, at 182. See also, Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743-44, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985) (“The factfinding capacity of the district court is thus typically unnecessary to judicial review of agency decision-making.”) This review is conducted “based on the record the agency presents to the reviewing court.” Florida Power, 470 U.S. at 743-44, 105 S.Ct. 1598 (citing Overton" }, { "docid": "23642138", "title": "", "text": "plaintiffs, in effect, claim that HUD’s practice over time, its pattern of behavior, reveals a failure “affirmatively ... to further” Title VIII’s fair housing policy. The NAACP does not complain of individual instances so much as it uses individual instances to show a pattern of activity, which pattern constitutes the alleged violation. Thus, we need not decide how, or whether, a court can fashion standards governing when, or the extent to which, HUD should use an individual grant decision affirmatively to bring about desegregation. Nor need we consider how a court is to review whether HUD in an individual instance has given appropriate weight to its UDAG mission “to make ... grants to cities ... experiencing severe economic distress to help stimulate economic development activity,” 42 U.S.C. § 5318(a), to its Title VIII objectives, and to various other factors such as the importance of the case, the likelihood of success in achieving HUD’s various goals, and the availability of resources. Cf. Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985) (holding unreviewable an FDA decision not to investigate a particular alleged violation, as the law authorizing investigations offered no standard for separating lawful from unlawful investigatory decisions); Hahn v. Gottlieb, 430 F.2d at 1249-50 (citing difficulty of finding a standard for reviewing individual decisions to permit rent increases). Rather, here the court must decide whether, over time, HUD’s pattern of activity reveals a failure to live up to its obligation. The standard for reviewing that pattern can be drawn directly from the statutory instruction to “administer” its programs “in a manner affirmatively to further the policies” of “fair housing.” 42 U.S.C. §§ 3608(e)(5), 3601. This standard, like many, may be difficult to apply to borderline instances, yet a court should be able to determine a clear failure to live up to the instruction over time. It should be able to determine whether the agency’s practice, over time, in respect to this mandate has been “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Doing so, in the context" }, { "docid": "148596", "title": "", "text": "is a threshold jurisdictional question that must be determined before the merits of the case may be reached.” Sierra Club v. Larson, 882 F.2d 128, 130 (4th Cir.1989). The APA “is not a jurisdiction-conferring statute.” Lee v. U.S. Citizenship and Immigration Servs., 592 F.3d 612, 619 (4th Cir.2010) (internal quotation marks omitted). “[T]he jurisdictional source for an action under the APA is the federal question statute,” and the APA’s judicial provisions provide “a limited cause of action for parties adversely affected by agency action.” Id. (citations and internal quotation marks omitted). Because “reviewability is a threshold jurisdictional question,” however, we must examine reviewability through the lens of the APA to determine whether the district court properly exercised its jurisdiction. Larson, 882 F.2d at 130. The APA requires a reviewing court to “hold unlawful and set aside agency action, findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law[.]” 5 U.S.C. § 706(2)(A). The APA further provides, “[ajgency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review.” Id. § 704. Of significance here, the APA provides two exceptions to judicial review of agency actions: when “statutes preclude judicial review,” or when “agency action is committed to agency discretion by law.” Id. § 701(a)(2). The government argues that both exceptions apply here, and in any event, there is no “final agency action” of the Coast Guard. Because the action that occurred in this case is explicitly committed to the discretion of the Coast Guard pursuant to APPS, we conclude that this matter was unreviewable, and thus, the district court lacked subject matter jurisdiction. a. The idea that courts cannot review actions committed to agency discretion by law was at the forefront of two seminal Supreme Court cases: Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), and Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985). Volpe explained that § 701(a)(2) “is a very" }, { "docid": "13998684", "title": "", "text": "706 require the reviewing court to engage in a substantial inquiry. Certainly, the [agency’s] decision is entitled to a presumption of regularity. But that presumption is not to shield [the agency’s] action from a thorough, probing, in-depth review. The court is first required to decide whether the [agency] acted within the scope of [its] authority ... Scrutiny of the facts does not end, however, with the determination that the [agency] acted within the scope of [its] statutory authority. Section 706(2)(A) requires a finding that the actual choice made was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. To make this finding the court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency. The final inquiry is whether the [agency’s] action followed the necessary procedural requirements. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415-417, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971) (citations omitted). The dispute here centers in large part upon the City’s conclusion that it need not prepare an EIS, based upon its Finding of No Significant Impact at the conclusion of its Environmental Assessment. Although it is clear that we review HUD’s approval of the UDAG application to determine if it is arbitrary and capricious, it is not as clear that the same standard applies to our review of the City’s decision to forego preparation of an EIS based upon its FONSI. However, in Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989), the Supreme Court reviewed an agency decision to forego preparation of a supplemental EIS under the arbitrary and capricious standard. Here, the district court relied upon Marsh in applying that standard of review to its scrutiny of the City’s decision to not prepare an EIS. Other Courts of Appeals that" }, { "docid": "7796165", "title": "", "text": "limited resources on higher priority critical habitat,” and that “[w]e will develop a proposal to designate critical habitat for the Canada lynx as soon as feasible, considering our workplace priorities.” Id. at 16083. On December 14, 2000, Plaintiffs brought this lawsuit (“Lynx III”) challenging the Service’s Final Rule listing the Lynx as threatened, rather than endangered, and its failure to designate the species’ critical habitat, as required by the ESA. III. STANDARD OF REVIEW This ease is brought under the ESA’s citizen suit provision, 16 U.S.C. § 1540(g), and under the APA, 5 U.S.C. § 706(2)(A). Under the APA’s deferential standard of judicial review, an agency’s action may be set aside only if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” or “without observance of procedure required by law.” 5 U.S.C. § 706(2)(A). The court may not substitute its judgment for that of the agency. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). The court’s review of an agency’s decision is limited to the administrative record. Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973). The court’s limited role is to ensure that the agency’s decision is based on relevant factors and not a “clear error of judgment.” Id. If the “agency’s reasons and policy choices ... conform to ‘certain minimal standards of rationality’ ... the rule is reasonable and must be upheld.” Small Refiner Lead Phase-Down Task Force v. EPA, 705 F.2d 506, 521 (D.C.Cir.1983) (citation omitted). In exercising its narrowly defined review authority under the APA, a court must consider whether the agency acted within the scope of its legal authority, whether the agency adequately explained its decision, whether the agency based its decision on facts in the record, and whether the agency considered the relevant factors. Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989); Citizens to Preserve Overton Park, 401 U.S. at 415, 91 S.Ct. 814; Professional Drivers Council v. Bureau of Motor Carrier Safety," }, { "docid": "12384076", "title": "", "text": "action “not in accordance with law” within the meaning of the APA. However, the APA, by its own terms, precludes such statute-based rights of action in two pertinent circumstances: 1) where decisions are committed to agency discretion, and 2) where alternate remedies under Federal law are adequate to redress plaintiffs’ grievances. (a). Commitment to Agency Discretion Federal Defendants contend that certain of HUD’s actions challenged by Plaintiffs (chiefly, its supervision of HABC operations) are inherently committed to HUD’s own discretion and therefore may not be reviewed by this Court under the APA. Federal Defendants liken the instant case to Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985), where the Supreme Court precluded APA scrutiny of the Food and Drug Administration’s failure to take investigatory and enforcement measures to prevent perceived drug use violations. The Heckler Court compared the FDA’s enforcement discretion to that of a prosecutor, noting that the agency was most apt at determining how to spend its resources and that an agency’s decision not to “prosecute” was neither coercive nor threatening to individual liberties. Id., at 832, 105 S.Ct. 1649. Heckler is inapposite to the instant case. HUD acts, primarily, not as HABC’s investigator or “prosecutor,” but as a collaborator in the production and administra tion of housing policy. HUD’s position is not passive. Rather, HUD acts affirmatively, funding and providing operational support for housing initiatives. And if HUD, alone or in collaboration with Local Defendants, acts in violation of Federal civil rights laws, it would indeed threaten individual liberties. Moreover, while HUD has discretion in regard to allocating its own resources, such allocations are constricted by the operation of Federal law and policies. Title VIII, in particular, gives HUD a discerna-ble mandate that it must follow; the agency is required by provisions of Title VIII to act in conformity with the rules and principles embodied therein. E.g., 42 U.S.C. § 3608 (2003). Accordingly, HUD’s actions implicated herein are not products of inherently unre-viewable discretion. (b). Adequacy of Alternate Remedies Section 704 provides that “final agency action[s] for which there is no other" }, { "docid": "157217", "title": "", "text": "dismissal of plaintiffs’ breach of contract claim in count IV of the complaint. E. Plaintiffs’ final contention is that defendant federal and state housing officials have failed to enforce the obligations of the private owners fairly and rationally to administer the Section 8 program in accordance with federal statutory and constitutional standards. This failure, plaintiffs contend, was arbitrary, capricious, and an abuse of discretion and has resulted in plaintiffs’ federal statutory and constitutional rights being violated, thus entitling plaintiffs to relief under the federal Administrative Procedure Act (APA), 5 U.S.C. §§ 702 & 706. The APA’s comprehensive provisions for judicial review of “agency actions” are contained in 5 U.S.C. §§ 701-706. Any person “adversely affected or aggrieved” by final agency action, including a failure to act, is entitled to judicial review thereof. 5 U.S.C. § 702. Defendants, however, maintain that, even assuming there has been a violation of plaintiffs’ rights, which they deny, HUD’s decision not to take enforcement action in this case against the private owners is a decision committed to the agency’s absolute discretion, and thus is not subject to judicial review under the APA. See 5 U.S.C. § 701(a)(2). Section 701(a)(2) of the APA precludes judicial review of any action or decision by an administrative agency to the extent that “agency action is committed to agency discretion by law.” The Supreme Court has stated, however, that § 701(a)(2) “is a very narrow exception” that only applies “in those rare instances where ‘statutes are drawn in such broad terms that in a given case there is no law to apply.’ ” Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 820, 28 L.Ed.2d 136 (1971) (quoting S.Rep. No. 752, 79th Cong., 1st Sess. 26 (1945)). In other words, judicial review is precluded only when “the statute is drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion.” Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 1655, 84 L.Ed.2d 714 (1985). However, in cases involving an agency’s decision not to take enforcement action, the" }, { "docid": "11290456", "title": "", "text": "the Glendale project specifically, Defendants’ evidence that construction costs generally are rising at 6% annually is sufficient evidence to show that construction costs will probably go up by some amount during the life of a preliminary injunction. However, such a conclusion is speculative, as construction costs could go up by a small amount, a large amount, or could even go down. Thus, the court finds that this factor favors Defendants, but does not carry much weight in the Blackwelder calculus. 3. Likelihood of prevailing on the merits The court has found that the balance of hardships favors Plaintiffs. Therefore, Plaintiffs “need only show ‘grave or serious’ questions for litigation” in order for this court to issue a preliminary injunction. Rum Creek Coal Sales, 926 F.2d at 363 (quoting Massinga, 838 F.2d at 120). As explained below, however, Plaintiffs have done more than show grave or serious questions for litigation; the court has found that Plaintiffs have shown that HUD’s actions at issue in the case are likely arbitrary and capricious. a. Standard of review The Administrative Procedures Act, 5 U.S.C. § 701 et seq. (hereinafter “APA”), provides that a reviewing court “shall hold unlawful and set aside agency action” if the action is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Review of this type is very limited and deferential. See Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743-14, 105 S.Ct. 1598, 1606-07, 84 L.Ed.2d 643 (1985); Camp v. Pitts, 411 U.S. 138, 140-42, 93 S.Ct. 1241, 1243—14, 36 L.Ed.2d 106 (1973). The Supreme Court has explained that this review “requires a finding that the actual choice made was not ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ ” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823-24, 28 L.Ed.2d 136 (1971) (quoting 5 U.S.C. § 706(2)(A)). Here, the actual choice made at issue is HUD’s decision to approve the location of the proposed project at the Glendale location. An “agency must examine the relevant data" }, { "docid": "16774493", "title": "", "text": "of [multifamily housing projects owned by HUD] in a manner consistent with local housing market conditions. Id § 1701z-ll(a)(3). The plaintiffs argue that summary judgment is appropriate because HUD considered neither the tenants’ comments nor the statutory factors before disposing of the Uplands property. HUD disagrees and argues for summary judgment in its favor on this count. Both parties appear to agree that HUD’s disposition of the Uplands property may be set aside only if it was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). This standard of review is highly deferential. So long as HUD “considered the relevant data and articulated an explanation establishing a ‘rational connection between the facts found and the choice made,’ ” Frisby v. HUD, 755 F.2d 1052, 1055 (3d Cir.1985) (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962)), HUD’s action must be upheld. HUD, moreover, is entitled to a “presumption of regularity,” and the party challenging the action bears the burden of establishing a violation. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). Nevertheless, if, as the plaintiffs allege, “the agency relied on factors Congress did not intend for it to consider, or has failed to consider an important aspect of the problem, then the action should be set aside as arbitrary and capricious.” Frisby, 755 F.2d at 1055 (citing Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)). In light of this deferential standard of review and the “presumption of regularity,” HUD’s treatment of the tenant comments appears consistent with the Disposition Act. An explicit response to the tenants’ concerns, while perhaps desirable, was not required by the statute; HUD’s only obligation was to take tenant comments “into consideration.” 12 U.S.C. § 1715z-lb(b).(l). Uncontradicted evidence in the record indicates that HUD discharged this responsibility. First, HUD not only solicited tenant comments, but extended the submission deadline in response to" }, { "docid": "16774494", "title": "", "text": "burden of establishing a violation. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). Nevertheless, if, as the plaintiffs allege, “the agency relied on factors Congress did not intend for it to consider, or has failed to consider an important aspect of the problem, then the action should be set aside as arbitrary and capricious.” Frisby, 755 F.2d at 1055 (citing Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)). In light of this deferential standard of review and the “presumption of regularity,” HUD’s treatment of the tenant comments appears consistent with the Disposition Act. An explicit response to the tenants’ concerns, while perhaps desirable, was not required by the statute; HUD’s only obligation was to take tenant comments “into consideration.” 12 U.S.C. § 1715z-lb(b).(l). Uncontradicted evidence in the record indicates that HUD discharged this responsibility. First, HUD not only solicited tenant comments, but extended the submission deadline in response to UATA concerns. Once it had received comments, HUD prepared a summary of tenant concerns. (Def.’s Re ply Ex. 39.) In addition, though HUD did not respond to the tenant comments in the final disposition plan, an internal memorandum dated December 17, 2003 states that tenant comments were received and “considered in arriving at the final disposition plan” (PL’s Mem. in Supp. of Mot. for Summ. J. Ex. 1 at 63), and a declaration by the Director of HUD's Multifamily Program Center indicates that HUD staff reviewed the comments but determined that no changes to the Initial Disposition Plan were appropriate (Iber Aff. ¶¶ 7, 11, 13-15). Though, again, an explicit response to the tenants’ commeiits would have made a stronger case for upholding HUD’s 'decision, this evidence is sufficient to prevent a finding that HUD ignored tenant concerns in breach of its statutory obligations. Cf. Project B.A.S.I.C. v. Kemp, 721 F.Supp. 1501, 1512 (D.R.I. 1989) (holding that’ a public housing authority acted based on “consultation” with tenants where the record “indicate[d] some effort to gain" }, { "docid": "12640745", "title": "", "text": "to apply,” the USIA decision is nonetheless subject to judicial review under fundamental precepts of administrative law which mandate reasoned decisions, decisions which are consistent with congressional intent and which do not markedly deviate from existing policy unless articulated reasons for the change are given. This case presents the tension between two provisions in the Administrative Procedure Act (APA). Section 701(a)(2) of Title 5 of the United States Code precludes judicial review of any “agency action [which] is committed to agency discretion by law.” 5 U.S.C. § 701(a)(2) (1982). Section 706(2)(A), however, permits judicial review of agency action found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Recently, in Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985), the Supreme Court construed section 701(a)(2) and addressed its apparent conflict with section 706(2)(A): ... even where Congress has not affirmatively precluded review, review is not to be had if the statute is drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion. In such a case, the statute (“law”) can be taken to have “committed” the decisionmaking to the agency’s judgment absolutely. This construction avoids conflict with the “abuse of discretion” standard of review in § 706 — if no judicially manageable standards are available for judging how and when an agency should exercise its discretion then it is impossible to evaluate agency action for “abuse of discretion.” Heckler v. Chaney, 470 U.S. at 830, 105 S.Ct. at 1655. As the Supreme Court in Citizens to Preserve Overton Park, Inc. v. Volpe, stated “[t]he legislative history of the Administrative Procedure Act indicates that [5 U.S.C. § 701(a)(2)] is applicable in those rare instances where ‘statutes are drawn in such broad terms that in a given case there is no law to apply.’ ” 401 U.S. 402, 410, 91 S.Ct. 814, 821, 28 L.Ed.2d 136 (1971) (quoting S.Rep. No. 752, 79th Cong., 1st Sess. 26 (1945)). Thus, in order to find that an agency action is not subject" }, { "docid": "9804045", "title": "", "text": "v. Marsh, 976 F.2d 763, 769 (1st Cir.1992) (“Sierra Club II”) (citing Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 375, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989)). Under that section, the reviewing court shall hold unlawful and set aside agency action, findings, and conclusions found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); see Sierra Club II, 976 F.2d at 769. “The task of a court reviewing agency action under the APA’s ‘arbitrary and capricious’ standard is to determine whether the agency has examined the pertinent evidence, considered the relevant factors, and ‘articulate[d] a satisfactory explanation for its action including a rational connection between the facts found and the choice made.’ ” Penobscot Air Servs., Ltd. v. Federal Aviation Admin., 164 F.3d 713, 719 (1st Cir.1999) (citing Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (citation and internal quotation marks omitted)). The reviewing court must determine whether the decision was based on a consideration of the relevant factors and whether the agency made a clear error of judgment. See Oregon Natural Resources Council, 490 U.S. at 378, 109 S.Ct. 1851 (citing Citizens to Pre serve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), overruled on unrelated grounds by Califano v. Sanders, 430 U.S. 99, 105, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977)); Dubois v. United States Dep’t of Agric., 102 F.3d 1273, 1285 (1st Cir.1996), cert. denied, 521 U.S. 1119, 117 S.Ct. 2510, 138 L.Ed.2d 1013 (1997). While this is a highly deferential standard of review, it is not a rubber stamp. See Citizens Awareness Network, Inc. v. United States Nuclear Regulatory Comm’n, 59 F.3d 284, 290 (1st Cir.1995). The reviewing court must undertake a “thorough, probing, in-depth review” and a “searching and careful” inquiry into the record. Volpe, 401 U.S. at 415-16, 91 S.Ct. 814. Only by carefully reviewing the record and satisfying itself that the agency has made a rational decision can the" }, { "docid": "11290457", "title": "", "text": "Administrative Procedures Act, 5 U.S.C. § 701 et seq. (hereinafter “APA”), provides that a reviewing court “shall hold unlawful and set aside agency action” if the action is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Review of this type is very limited and deferential. See Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743-14, 105 S.Ct. 1598, 1606-07, 84 L.Ed.2d 643 (1985); Camp v. Pitts, 411 U.S. 138, 140-42, 93 S.Ct. 1241, 1243—14, 36 L.Ed.2d 106 (1973). The Supreme Court has explained that this review “requires a finding that the actual choice made was not ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ ” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823-24, 28 L.Ed.2d 136 (1971) (quoting 5 U.S.C. § 706(2)(A)). Here, the actual choice made at issue is HUD’s decision to approve the location of the proposed project at the Glendale location. An “agency must examine the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’ ” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866, 77 L.Ed.2d 443 (1983). In reviewing HUD’s decision, the court must determine “whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Overton Park, 401 U.S. at 416, 91 S.Ct. at 824 (citations omitted). An agency’s “decision is entitled to a presumption of regularity.” Id. at 415, 91 S.Ct. at 823 (citations omitted). However, this “presumption is not to shield [the agency’s] action from a thorough, probing, in-depth review.” Id. “Normally, an agency rule would be arbitrary and capricious if the agency ... entirely failed to consider an important aspect of the problem.” State Farm, 463 U.S. at 43, 103 S.Ct. at 2867. Moreover, “[t]he reviewing court should not attempt itself to make up for such deficiencies; [the court] may not supply a" }, { "docid": "20520940", "title": "", "text": "(quoting Block v. Cmty. Nutrition Inst., 467 U.S. 340, 349, 104 S.Ct 2450, 81 L.Ed.2d 270 (1984)); Save the Bay, Inc. v. Adm’r. of E.P.A., 556 F.2d 1282, 1293 (5th Cir.1977) (\"A long-standing and strong presumption exists that action taken by a federal agency is reviewable in federal court.”). . 5 U.S.C. § 701(a)(1), (2); see also Webster v. Doe, 486 U.S. 592, 597, 108 S.Ct. 2047, 100 L.Ed.2d 632 (1988) (“The scope of judicial review under [section] 702 ... is predicated on satisfying the requirements of [section] 701.”). . Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). . Id. (internal quotation marks and citation omitted). . Heckler v. Chaney, 470 U.S. 821, 830, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985). The Court recognized that adopting \"[t]his construction avoids conflict with the 'abuse of discretion' standard of review in [section] 706 [of the APA] — if no judicially manageable standards are available for judging how and when an agency should exercise its discretion, then it is impossible to evaluate agency action for ‘abuse of discretion.’ ” Id. . Webster, 486 U.S. at 600, 108 S.Ct. 2047. . Id. . Id. . See id. at 600-01, 108 S.Ct. 2047. . Id. at 601, 108 S.Ct. 2047. . See Abbott Labs. v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). . Heckler v. Chaney, 470 U.S. 821, 831, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985). A refusal to institute investigative actions is also presumptively unreviewable. Id. at 838, 105 S.Ct. 1649. The Court justified this presumption on several grounds, including (1) the agency’s need to determine how best to allocate its enforcement resources, id. at 831, 105 S.Ct. 1649, (2) the fact that “when an agency refuses to act it generally does not exercise its coercive power over an individual’s liberty" }, { "docid": "5914697", "title": "", "text": "USIA’s termination decision violated the APA’s strictures against agency action that is (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right...; (D) without observance of procedure required by law; ... 5 U.S.C. § 706(2). We disagree. The protections accorded by § 706 are ■ available in all cases of agency action except to the extent that— (1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law. Id. § 701(a). The Foreign Service Act does not preclude judicial review of security clearance revocation or termination decisions by USIA. To prevail on his APA claim, therefore, Krc must demonstrate that USIA’s actions in this case were not “committed to [its] discretion by law.” The Supreme Court has explained that § 701(a)(2) applies “in those rare instances where ‘statutes are drawn in such broad terms that in a given case there is no law to apply.’” Webster v. Doe, 486 U.S. 592, 599, 108 S.Ct. 2047, 2051, 100 L.Ed.2d 632 (1988) (quoting Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 821, 28 L.Ed.2d 136 (1971)). Under § 701(a)(2), review is precluded “if the statute is drawn so that a court would have no meaningful standard against which to judge the agency's exercise of discretion.\" Webster, 486 U.S. at 600, 108 S.Ct. at 2052 (quoting Heckler v. Chaney, 470 U.S. 821, 830, 105 S.Ct. 1649, 1655, 84 L.Ed.2d 714 (1985)). Above all, § 701(a)(2) requires us to examine carefully the statute on which the claim of illegal agency conduct is based. Webster, 486 U.S. at 600, 108 S.Ct. at 2052. Section 611 of the Foreign Service Act states that except for reasons of misconduct, the Secretary of State “may terminate at any time” a limited Foreign Service appointment. 22 U.S.C. § 4011. This language imposes fewer shackles on the agency head’s decisionmaking than the corresponding provision in the 1947 National Security Act, which the Supreme Court found precluded judicial review. Webster, 486 U.S. at 601, 108 S.Ct. at 2052-53. Furthermore, when Foreign" } ]

[ { "docid": "7959098", "title": "", "text": "refusal. The eye witness testimony of the three witnesses identifying appellant was the only evidence linking him to the crime. The testimony of all three witnesses tended to interrelate since they all described features and clothing allegedly those of appellant. Thus, the testimony which the jury asked to have read to them was absolutely crucial to their determination of appellant’s guilt or innocence. This was not a case where, from a mass of dimly remembered data, the jury desired to cull and spotlight a small bit of fact. The entirety of the evidence presented against appellant, while presenting problems in terms of evaluation, was short: the testimony of only three witnesses. Reading the transcript of the testimony of two of these witnesses would not necessarily emphasize it or preclude consideration by the jury of the other testimony. In these circumstances, it must be assumed that the jury asked for a reading of this testimony because it was in doubt or in disagreement upon its proper evaluation. United States v. Jackson, 257 F.2d 41 (3d Cir. 1958), is directly on point. The issue presented in Jackson was entrapment. The jury asked the court whether or not an informer involved with the defendant was a Government employee. The court told the jury that it was unable to remember whether or not the informer was a Government employee and directed them to return to the jury room for further deliberations without having read any of the testimony to the jury. Attorney for the defendant requested that the pertinent portion of the testimony be read to the jury. But before any action was taken the jury returned a guilty verdict. This court noted that “[T]he point of the jury’s question was highly relevant.” It held that “in this particular situation we think the defendant was entitled to have the jury informed as a matter of right.” id., at 43. The request by the jury for a reading of the testimony in the case sub judice is, in fact, even more compelling than in Jackson. In both cases, the evidence on which the jury wanted" } ]

[ { "docid": "6020758", "title": "", "text": "opposed to providing the transcripts for use in the jury room if the testimony was first read back, as the jury had requested. The readback, he urged, would ensure that every juror would hear the same thing, and would protect against individual jurors’ taking pieces of testimony out of context. In response to the objection, Judge Trager stated, in essence, that having the transcripts would afford each juror the opportunity to draw the others’ attention to specific portions of the testimony, and that regardless of whether individual jurors were better readers or a better listeners, all would benefit from having the transcripts available to be read aloud during the deliberations. In addition, Judge Trager reiterated that when the jury has asked to rehear extensive portions of testimony, a readback is not efficient, and providing the jury with transcripts is preferable. Although we recognize that the decision to permit or deny readbacks of testimony when requested by a jury during deliberations is within the broad discretion of the trial court, see, e.g., United States v. Criollo, 962 F.2d 241, 243 (2d Cir.1992) (collecting cases), we have also instructed that a trial court’s response to any particular request should be guided by consideration of the jurors’ need to review the evidence before reaching a verdict, assessed against the difficulty in locating the specific testimony requested, the possibility of undue emphasis on any portion of the testimony, and the possibility of undue delay in the trial, id. We have also stated a clear preference for read-backs whenever they are requested by a deliberating jury. Id. at 244. Indeed, we have explicitly held that it is not within the trial court’s discretion to announce a wholesale prohibition on readbacks, id., and we have expressed disapproval of the practice of discouraging the jury from requesting them, see United States v. Damsky, 740 F.2d 134, 138 (2d Cir.1984) (noting that such a practice “does not seem to be particularly wise”). Though some courts have concluded that there is no material difference between sending the jury written transcripts of trial testimony and providing for in-court readbacks, e.g.," }, { "docid": "6020762", "title": "", "text": "and we noted that the judge in Russo effectively minimized this risk by cautioning the jury to consider the charge as a whole and to seek an explication if necessary. Id. at 954. While we recognize that supplying transcripts of trial testimony poses some risk of undue emphasis on selected passages, we conclude that the decision to provide the jury with transcripts in lieu of requested read-backs should be left to the trial court’s discretion, just like the decision as to a request for transcripts, see United States v. Poliak, 474 F.2d 828, 832 (2d Cir.1973). The decision to supply transcripts, either when requested or in lieu of a requested readback, should generally be guided by the same considerations that apply to a decision to permit a readback of testimony. Whether a court permits readbacks or sends transcripts, appropriate cautions should be given to the jury to minimize the particular risks associated with either technique. For example, a jury instruction reminding the jury to consider all the evidence without unduly emphasizing any portion of it would be appropriate in most cases where the court sends transcripts into the jury room. In the pending ease, we see no abuse of discretion in Judge Trager’s decision to provide written transcripts in lieu of readbacks. Escotto argues that because the primary strategy of his defense was to attack the credibility of the Government’s main witnesses, the printed transcripts were an inadequate substitute for the requested oral readbacks, and that providing 400 pages of transcripts might have overwhelmed the jury. We have no reason to believe that lengthy written transcripts would overwhelm the jury at all, and surely no more than would many hours of live readbacks in open court. Slightly more troublesome is the fact that by furnishing the transcripts instead of providing a readback, Judge Trager departed, without explanation, from the assurance concerning readbacks that he had given the jury in his preliminary and final instructions. It would have been preferable had Judge Trager indicated in his instructions that read-backs or transcripts would be available during deliberations if reasonable requests were made." }, { "docid": "23543153", "title": "", "text": "of the Jury Turner also argues that the trial judge, by asking the jury not to abuse the right to have the court reporter read back testimony to the jury, engaged in intimidation of the jury. The decision to allow a readback of testimony is reviewed for abuse of discretion. United States v. Birges, 723 F.2d 666, 671 (9th Cir.), cert. denied, 469 U.S. 863, 105 S.Ct. 200, 83 L.Ed.2d 131 (1984). In Birges, the court found no error in the trial judge’s refusal to allow a readback of testimony, absent a showing of prejudice. Id. at 671. If an outright refusal to allow a readback does not amount to federal constitutional error, then the trial judge’s statement, “I want you to use [the readback privilege] if you need it but please don’t utilize the reporter frivolously,” did not violate Turner’s constitutional rights. Furthermore, there is no evidence of prejudice in the present case, since the jury asked for and was allowed a readback on several occasions. We therefore find no abuse of discretion. VIII. Instruction on Consciousness of Guilt Turner argues that the trial court erred in giving a particular consciousness of guilt instruction, California Jury Instruction (CALJIC) No. 2.03. In a habeas corpus case, a jury instruction requires reversal only if it “so offended established notions of due process as to deprive [the defendant] of a constitutionally fair trial.” Cupp v. Naughten, 414 U.S. 141, 144, 94 S.Ct. 396, 399, 38 L.Ed.2d 368 (1974). The court’s instruction was as follows: “If you find that before this trial the defendant made a willfully false or deliberately misleading statement concerning the crimes for which he is now being tried, you may consider such statement as a circumstance tending to prove a consciousness of guilt. However, such conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are matters for your determination.” CALJIC No. 2.03. In California, this instruction is proper in eases in which there is testimony indicating that before trial the defendant had made several statements, relating to the crime, which were inconsistent" }, { "docid": "16642050", "title": "", "text": "Dearie did not include the falsus in uno instruction when he charged the jury. Counsel for Francis noticed the omission and complained about it when the trial judge, following the usual practice, asked counsel before the jury began deliberating if they had any objections to the charge as delivered. In the ensuing colloquy Judge Dearie acknowledged that he had omitted the instruction: The Couet: You asked for it, and I went back and read all the cases and learned something, frankly, that the charge is generally disfavored. I never was comfortable with that charge but I used to give it routinely. I’m not blaming you but it caused me to do more research, and having done the research I was at liberty to remove it, and it is a disfavored charge, and for good reason. Counsel took exception to the omission of thefalsus in uno instruction. The jury began its deliberations. They sent the trial judge a number of notes requesting readbacks of testimony or asking questions. A note from one juror read: Please clarify. If a juror believed that a witness lied on the witness stand, should the juror ignore the entire testimony from that witness? Judge Dearie and counsel discussed the response that the judge should make to that question. During the colloquy, counsel for Francis noted that “I specifically on my summation said that if you think a witness lied about something, you can disregard his entire testimony. I think that’s what the juror is latching onto.” The judge responded in part that “if you are suggesting that you have been sort of sandbagged, that’s pure bunk,” recalled the jury, reread the juror’s question, ánd answered that question as follows: Well, ladies and gentlemen, that is really for the juror. And ultimately for the jury, to decide. That’s not a question we decide. That’s a question you individually as jurors and collectively as a jury decide. After considering all the evidence you decide on the basis of what you heard whether to believe in whole or in part the testimony of a particular witness. I really can’t," }, { "docid": "2146853", "title": "", "text": "U.S. ---, 103 S.Ct. 3095, 77 L.Ed.2d 1354 (1983); whether giving the readback will unduly delay the proceeding, id.; and the difficulty involved in giving a readback, see United States v. Almonte, 594 F.2d 261, 265 (1st Cir.1979). Like any other discretionary decision of a trial court, however, decisions regarding testimonial readbacks are not unreviewable. Here, the district court did not refuse to allow any testimony to be read back. Instead, it told the jury in its charge: Although our able court reporter, Mr. McGloine, has a record of these proceedings made on his shorthand stenotype machine, there is no transcript of the proceedings at this time, so before asking for any testimony to be read back, I urge you to exhaust your collective memories before asking for a readback. The trial has not been a long one, and the evidence should be fresh in your memories. The services of Mr. McGloine are available to you, but it may take some time to locate particular information. Tr. at 571, App. at 172. While urging a jury to try to remember testimony before asking for a readback is not generally error, see United States v. Pimental, 645 F.2d 85, 87 (1st Cir.1981), it does not seem to be particularly wise policy. Still, we would not find an abuse of discretion had the prosecutor not told the jury in his rebuttal, “As far as Mr. Romano and John Brown’s testimony with respect to a box being opened, have the testimony read back, because I will guarantee you that he said it, that Romano had a yellow shirt on and he could see the yellow sleeves opening a box.” Tr. at 541, App. at 142 (emphasis added). The prosecutor’s version of the testimony was incorrect; Agent Brown never said that someone with yellow sleeves opened a box. More importantly, a juror who had been discouraged from requesting a readback by the trial judge might well have relied on the prosecutor’s improper “guarantee” rather than the juror’s own recollection of the testimony. We conclude that given the disagreement over the contents of the testimony," }, { "docid": "2146850", "title": "", "text": "box up and rummage[d] through the things.” Tr. at 380, App. at 50. In the meantime, Brown and Damsky continued to argue about the money. Damsky finally gave in, saying he presumed everything was all right with the delivery, or Findlen and Romano would have told him otherwise. Brown left the key to the camper on top of Damsky’s television set and departed with Hulst. Hulst, Van Der Does, Damsky, Romano and Findlen were subsequently arrested. Hulst and Van Der Does pleaded guilty to one count of possession of hashish with intent to distribute and one count of conspiracy to commit the substantive offense. Hulst received consecutive sentences of ten years incarceration on the conspiracy count and five years on the substantive count, with a two year special parole term on Count II. Van Der Does received sentences for the same terms as did Hulst, but her sentences ran concurrently. Damsky, Findlen and Romano were tried jointly and each was convicted on both counts. Damsky and Findlen received consecutive sentences of three years each on Counts I and II, with a two year special parole term on Count II. Romano received concurrent sentences of four years on both counts, with a two year special parole term on Count II. Each now appeals. II THE JURY READBACK ISSUE Romano’s defense was based on the contention that he did not know what was in the boxes he carried. In their summations, the prosecutor and Romano’s attorney disagreed sharply on whether Agent Brown’s testimony suggested that Romano had opened up the boxes. The prosecutor told the jury that he would “guarantee” the correctness of his version of the testimony. Both the prosecutor and Romano’s attorney asked the jury to request a readback of this testimony so the jury could determine exactly what Agent Brown said. The jury made no request for a readback. Romano now contends that the trial court erred when it told the jurors to search their memories before asking for trial testimony to be read back from the stenographer’s tape. Romano further con tends that the jury verdict should be" }, { "docid": "2146852", "title": "", "text": "reversed because this discouragement of testimonial readbacks came after both prosecution and defense had asked for a read-back of specific disputed testimony, and after the prosecutor improperly and incorrectly “guaranteed” his version of the disputed testimony. While we conclude that the trial court erred by discouraging the jury from asking for readbacks, we hold that the error was harmless. Whether to allow testimony to be read back to the jury is within the trial court’s sound discretion. See, e.g., United States v. Price, 447 F.2d 23, 31 (2d Cir.), cert. denied, 404 U.S. 912, 92 S.Ct. 232, 30 L.Ed.2d 186 (1971); United States v. Ratcliffe, 550 F.2d 431, 434 (9th Cir.1976) (per curiam) (trial court refused to allow any readbacks in order to induce jurors to pay attention; held, no abuse of discretion). In making the determination, the trial court, in its discretion, may take into account factors such as whether reading certain testimony back will unduly call attention to it, see United States v. Nolan, 700 F.2d 479, 486 (9th Cir.), cert. denied, — U.S. ---, 103 S.Ct. 3095, 77 L.Ed.2d 1354 (1983); whether giving the readback will unduly delay the proceeding, id.; and the difficulty involved in giving a readback, see United States v. Almonte, 594 F.2d 261, 265 (1st Cir.1979). Like any other discretionary decision of a trial court, however, decisions regarding testimonial readbacks are not unreviewable. Here, the district court did not refuse to allow any testimony to be read back. Instead, it told the jury in its charge: Although our able court reporter, Mr. McGloine, has a record of these proceedings made on his shorthand stenotype machine, there is no transcript of the proceedings at this time, so before asking for any testimony to be read back, I urge you to exhaust your collective memories before asking for a readback. The trial has not been a long one, and the evidence should be fresh in your memories. The services of Mr. McGloine are available to you, but it may take some time to locate particular information. Tr. at 571, App. at 172. While urging a" }, { "docid": "23543133", "title": "", "text": "the prima facie analysis, “it is preferable for the court to err on the side of the defendant’s right to a fair and impartial jury.” Chinchilla, 874 F.2d at 698 n. 5. Taken as a whole, the facts and circumstances reveal that Turner established a prima facie case of a Batson violation, such that the state trial court erred in'failing to inquire into the prosecutor’s reasons for the peremptory challenges. See Montiel, 2 F.3d at 340. Because of this omission, we remand for the district court to conduct an evidentia-ry hearing at which it must elicit the prosecutor’s motives at the time of the voir dire in order to determine whether there was a Bat-son violation. See Battle, 836 F.2d at 1086. II. Readback of Testimony Outside the Presence of the Defendant and Counsel Turner alleges that the trial court allowed the court reporter to read back testimony to the jury outside the presence of Turner and his counsel, in violation of Turner’s rights under the Confrontation Clause of the Sixth Amendment. The government argues that the record is too ambiguous to support Turner’s claim. We disagree. Although the government correctly notes the discrepancies between the reporter’s transcript and the clerk’s transcript, the record indicates that on March 20, 1990, the reporter read back testimony to the jury “in the jury room outside the presence of counsel and the defendant.” The government attempts to refute this evidence with the clerk’s transcript, which indicates that Turner’s counsel was “notified” of a readback on March 19, that the readback continued on March 20, and that the defendant and counsel were present in court on March 20. Because presence in court does not prove presence in the jury room, this notation does not rebut the record evidence that a readback occurred outside Turner’s presence. We have held that failure to allow the defendant to be present at the readback of testimony is constitutional trial error. See Hegler v. Borg, 50 F.3d 1472, 1477 (9th Cir.1995); United States v. Brown, 832 F.2d 128, 130 (9th Cir.1987). The government argues that even if Turner and" }, { "docid": "16051148", "title": "", "text": "§ 2254(d)(8), we conclude that the state trial court’s determinations herein were “fairly supported by the record.” It is noteworthy that the chronology of events immediately preceding the verdict as set forth in the trial record indicates that, had there been any undue internal influence or any outside influence, the jury had the clear opportunity to bring this to the trial judge’s attention. On the day the verdict was returned, at 11:27 A.M., there was readback of testimony in response to a jury request; at 11:35 A.M. completion of readback and deliberations resumed; then followed a lunch break; at 2:55 P.M. there was another request for readback of a witness’ testimony; at 4:10 P.M. readback was completed and deliberations followed; whereupon at 4:15 P.M. a jury note was received indicating that a verdict had been reached; and at 4:35 P.M. the verdict was recorded. The jurors were then polled and each juror affirmed the verdict. Thus, the complaining jurors had several opportunities to communicate directly with the court if any of them felt unfairly coerced, harassed, intimidated, or felt themselves to be in physical danger. We further note that there was at least a one-to-two hour interval between the alleged chair-throwing incident and the verdict. In light of the state trial judge’s findings based upon his assessment of the affidavits herein, the jury poll and the absence of any complaints while being polled, and in view of the holding in Stein, there was no valid basis for concluding that the jury was influenced through external or internal means in reaching its final verdict or that the defendant was denied the right to a fair trial. We therefore need not decide whether and when it is permissible to allow impeachment of a jury verdict by means of juror affidavits describing misconduct within the jury room that does not involve extraneous influences on jury deliberations. In People v. De Lucia, the court observed that although “articulate jurors may intimidate the inarticulate, [and] the aggressive may unduly influence the docile,” 20 N.Y.2d at 278, 229 N.E.2d at 213, 282 N.Y.S.2d at 529, “scarcely" }, { "docid": "6020756", "title": "", "text": "was supposed to receive a share of the profits. During jury deliberations, the jury asked for a reading of the testimony of three witnesses. Under circumstances elaborated below, the District Court responded by supplying the jury with redacted versions of the witnesses’ testimony. The jury received the redacted transcripts shortly before retiring on the afternoon of the first day of deliberations. The following afternoon, after a brief deadlock, the jury returned a guilty verdict against Eseotto, and an acquittal of his co-defendant, Hackley. At sentencing, Judge Trager increased Escotto’s offense level by four levels for his leadership role in the offense, see U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 3Bl.l(a) (1995), and by another two levels because the fraud involved the misrepresentation at Platinum that the salesmen were acting on behalf of a government agency, see id. § 2Fl.l(b)(3)(A). Escotto’s main contention on appeal is that he was denied a fair trial because the District Judge supplied transcripts instead of having the requested testimony read. He also challenges the evidentiary foundations for the trial court’s upward adjustments of his offense level. Discussion I. Transcripts The primary issue is the propriety of Judge Trager’s response to the jury’s request for readbacks. During both preliminary and final jury instructions, Judge Trager had told the jury that testimony could be read back if necessary to aid deliberations. During deliberations, the jury sent a note asking for a readback of the complete testimony of the three cooperating witnesses. Their testimony was the crux of the Government’s case, and, in some respects, had been inconsistent. On receipt of the jury’s request, Judge Trager advised the attorneys that instead of permitting a readback, he would provide the jury with two copies of the transcript of the three witnesses’ testimony, and he instructed the attorneys to prepare a redacted version of the transcripts, omitting colloquy and stricken testimony. He indicated that in his opinion a readback of hundreds of pages of testimony would hinder the jury’s ability to deal with all of the testimony in a reasoned fashion. Defense counsel objected, but conceded that he would not be" }, { "docid": "2146851", "title": "", "text": "Counts I and II, with a two year special parole term on Count II. Romano received concurrent sentences of four years on both counts, with a two year special parole term on Count II. Each now appeals. II THE JURY READBACK ISSUE Romano’s defense was based on the contention that he did not know what was in the boxes he carried. In their summations, the prosecutor and Romano’s attorney disagreed sharply on whether Agent Brown’s testimony suggested that Romano had opened up the boxes. The prosecutor told the jury that he would “guarantee” the correctness of his version of the testimony. Both the prosecutor and Romano’s attorney asked the jury to request a readback of this testimony so the jury could determine exactly what Agent Brown said. The jury made no request for a readback. Romano now contends that the trial court erred when it told the jurors to search their memories before asking for trial testimony to be read back from the stenographer’s tape. Romano further con tends that the jury verdict should be reversed because this discouragement of testimonial readbacks came after both prosecution and defense had asked for a read-back of specific disputed testimony, and after the prosecutor improperly and incorrectly “guaranteed” his version of the disputed testimony. While we conclude that the trial court erred by discouraging the jury from asking for readbacks, we hold that the error was harmless. Whether to allow testimony to be read back to the jury is within the trial court’s sound discretion. See, e.g., United States v. Price, 447 F.2d 23, 31 (2d Cir.), cert. denied, 404 U.S. 912, 92 S.Ct. 232, 30 L.Ed.2d 186 (1971); United States v. Ratcliffe, 550 F.2d 431, 434 (9th Cir.1976) (per curiam) (trial court refused to allow any readbacks in order to induce jurors to pay attention; held, no abuse of discretion). In making the determination, the trial court, in its discretion, may take into account factors such as whether reading certain testimony back will unduly call attention to it, see United States v. Nolan, 700 F.2d 479, 486 (9th Cir.), cert. denied, —" }, { "docid": "23087283", "title": "", "text": "the trial judge’s denial of the continuance was based on his concern with the court’s calendar, the effect of the delay on other litigants, and Foster’s failure to offer any substantial reason why these two witnesses could not be in attendance when they were supposed to testify. Both witnesses were present on the preceding day of trial. ' Foster’s argument that the outcome of this ease might well have been affected by the testimony of his two uncalled witnesses is belied by the record. The testimony Foster expected to elicit from these witnesses would not have strengthened Foster’s defense. The testimony of both would have been cumulative with that of his other witnesses. And one witness’s testimony was proffered only to protect against the government raising questions in summation about her not having been called. The government offered to stipulate that it would not mention the witness’s absence in summation, and Foster stated that this was a satisfactory resolution of the dilemma. As the government abided by the terms of its stipulation not to mention the latter witness’s absence, Foster cannot now assert he was prejudiced by being deprived of her testimony. Thus, we conclude that the trial judge acted within his sound discretion in denying Foster’s request for a continuance at the close of trial. V. Readback of Testimony Foster contends the district court erred in allowing the testimony of Demetria Andrews to be read back in response to a request from the jury to “re-hear” her testimony regarding Foster’s “role with drugs and gun possession.” Foster argues the reading back of her testimony prejudiced him by suggesting his mere presence at the scene was criminal. We disagree. A trial judge has broad discretion in deciding whether to accommodate jury requests to have testimony read back to them during deliberations. United States v. Holmes, 863 F.2d 4, 5 (2d Cir.1988). We have consistently held that in responding to a specific request from the jury, “the better course of action is for the district court to allow the reading of the testimony requested by the jury-” Id. at 5. Here," }, { "docid": "6020763", "title": "", "text": "would be appropriate in most cases where the court sends transcripts into the jury room. In the pending ease, we see no abuse of discretion in Judge Trager’s decision to provide written transcripts in lieu of readbacks. Escotto argues that because the primary strategy of his defense was to attack the credibility of the Government’s main witnesses, the printed transcripts were an inadequate substitute for the requested oral readbacks, and that providing 400 pages of transcripts might have overwhelmed the jury. We have no reason to believe that lengthy written transcripts would overwhelm the jury at all, and surely no more than would many hours of live readbacks in open court. Slightly more troublesome is the fact that by furnishing the transcripts instead of providing a readback, Judge Trager departed, without explanation, from the assurance concerning readbacks that he had given the jury in his preliminary and final instructions. It would have been preferable had Judge Trager indicated in his instructions that read-backs or transcripts would be available during deliberations if reasonable requests were made. And some explanation would have been helpful as to why he had decided to supply transcripts rather than permit a read-back. Finally, to the extent that Escotto is arguing that it was error to provide the transcripts without giving a cautionary instruction, we reject this argument because it was not raised in the trial court. See Fed. R.Crim.P. 51. We note, however, that when a trial court decides to provide written transcripts, a cautionary instruction is advisable. II. Sentencing Escotto contends that the evidence did not support the increases to his offense level because of (a) his leadership role in the offense, see U.S.S.G. § 3Bl.l(a), and (b) the misrepresentation about acting for a government agency, see id. § 2Fl.l(b)(3)(A). Rather than making factual findings on the record, Judge Trager stated that he would accept the presentence report (“PSR”) as to both offense level increases. A district court’s factual findings are reviewed under the clearly erroneous standard, e.g., United States v. Leonard, 37 F.3d 32, 37-38 (2d Cir.1994), but the determination that those findings support" }, { "docid": "23543134", "title": "", "text": "that the record is too ambiguous to support Turner’s claim. We disagree. Although the government correctly notes the discrepancies between the reporter’s transcript and the clerk’s transcript, the record indicates that on March 20, 1990, the reporter read back testimony to the jury “in the jury room outside the presence of counsel and the defendant.” The government attempts to refute this evidence with the clerk’s transcript, which indicates that Turner’s counsel was “notified” of a readback on March 19, that the readback continued on March 20, and that the defendant and counsel were present in court on March 20. Because presence in court does not prove presence in the jury room, this notation does not rebut the record evidence that a readback occurred outside Turner’s presence. We have held that failure to allow the defendant to be present at the readback of testimony is constitutional trial error. See Hegler v. Borg, 50 F.3d 1472, 1477 (9th Cir.1995); United States v. Brown, 832 F.2d 128, 130 (9th Cir.1987). The government argues that even if Turner and his counsel were not present during the readback on March 20, they had waived their right to be present. We disagree. Although on March 16, Turner and his counsel both agreed to allow the jury to listen to a tape recording of testimony outside their presence, that waiver did not apply to the March 20 live readback of testimony. First, the parties had agreed in advance to a general policy that counsel should be present for readbacks. Any waiver, therefore, should be construed as a limited exception to this rule. Second, Turner’s lawyer had carefully reviewed the tape and transcript to be presented to the jury on March 16. Since the waiver undoubtedly was based in part on the attorney’s assessment that the playback of that tape would not unfairly prejudice his client, we should not construe the March 16 waiver to constitute a waiver of the right to be present at future readbacks, absent the opportunity to review the specific testimony to be read back in those instances. Third, a waiver of presence during" }, { "docid": "23042611", "title": "", "text": "read backs, which included those portions of the witnesses’ direct and cross-examinations that pertained to the specified murders and attempted murders. The testimony was read in open court. The court told the jury it could have any additional testimony read back. Yet the district court did not admonish the jury against unduly emphasizing the testimony that was read back. Defense counsel did not object to this lack of admonition. ‘We review for abuse of discretion the ‘decision to honor a request that the court reporter read his notes of certain testimony for the jury’s benefit after deliberation has begun.’” United States v. Sandoval, 990 F.2d 481, 486 (9th Cir.1993) (quoting United States v. Birges, 723 F.2d 666, 671 (9th Cir.1984)). Under that standard, we will not reverse unless we have a “definite and firm conviction that the district court committed a clear error in judgment.” United States v. Richard, 504 F.3d 1109, 1113 (9th Cir.2007) (quoting United States v. Hernandez, 27 F.3d 1403, 1408 (9th Cir.1994)) (internal quotation marks omitted). Failure to give an admonition against overemphasizing read back testimony is reviewed for plain error where, as here, the defendant does not object and “can lead to reversal only if prejudicial.” United States v. Newhoff, 627 F.3d 1163, 1167 (9th Cir.2010). We recently addressed partial read backs of testimony in Newhojf, in which we summarized our prior cases and observed that: to avoid the inherent risk of undue emphasis from a readback: (1) preferably the readback or replay should take place in open court with all present; (2) the jury should ordinarily be provided with the witness’s entire testimony, direct and cross-examination; and (3) the jury should be admonished to weigh all the evidence and not just one part. Id. at 1168. In Newhojf, we held that the district court erred in reading back one witness’s testimony without admonishing the jury not to give it undue emphasis. Id. at 1167-68. In Richard, we considered the read back of only a portion of a witness’s testimony and found error where the district court required the jury to select only a portion" }, { "docid": "6020757", "title": "", "text": "adjustments of his offense level. Discussion I. Transcripts The primary issue is the propriety of Judge Trager’s response to the jury’s request for readbacks. During both preliminary and final jury instructions, Judge Trager had told the jury that testimony could be read back if necessary to aid deliberations. During deliberations, the jury sent a note asking for a readback of the complete testimony of the three cooperating witnesses. Their testimony was the crux of the Government’s case, and, in some respects, had been inconsistent. On receipt of the jury’s request, Judge Trager advised the attorneys that instead of permitting a readback, he would provide the jury with two copies of the transcript of the three witnesses’ testimony, and he instructed the attorneys to prepare a redacted version of the transcripts, omitting colloquy and stricken testimony. He indicated that in his opinion a readback of hundreds of pages of testimony would hinder the jury’s ability to deal with all of the testimony in a reasoned fashion. Defense counsel objected, but conceded that he would not be opposed to providing the transcripts for use in the jury room if the testimony was first read back, as the jury had requested. The readback, he urged, would ensure that every juror would hear the same thing, and would protect against individual jurors’ taking pieces of testimony out of context. In response to the objection, Judge Trager stated, in essence, that having the transcripts would afford each juror the opportunity to draw the others’ attention to specific portions of the testimony, and that regardless of whether individual jurors were better readers or a better listeners, all would benefit from having the transcripts available to be read aloud during the deliberations. In addition, Judge Trager reiterated that when the jury has asked to rehear extensive portions of testimony, a readback is not efficient, and providing the jury with transcripts is preferable. Although we recognize that the decision to permit or deny readbacks of testimony when requested by a jury during deliberations is within the broad discretion of the trial court, see, e.g., United States v. Criollo," }, { "docid": "2146854", "title": "", "text": "jury to try to remember testimony before asking for a readback is not generally error, see United States v. Pimental, 645 F.2d 85, 87 (1st Cir.1981), it does not seem to be particularly wise policy. Still, we would not find an abuse of discretion had the prosecutor not told the jury in his rebuttal, “As far as Mr. Romano and John Brown’s testimony with respect to a box being opened, have the testimony read back, because I will guarantee you that he said it, that Romano had a yellow shirt on and he could see the yellow sleeves opening a box.” Tr. at 541, App. at 142 (emphasis added). The prosecutor’s version of the testimony was incorrect; Agent Brown never said that someone with yellow sleeves opened a box. More importantly, a juror who had been discouraged from requesting a readback by the trial judge might well have relied on the prosecutor’s improper “guarantee” rather than the juror’s own recollection of the testimony. We conclude that given the disagreement over the contents of the testimony, the suggestion by both prosecution and defense that the jury ask for a read-back, and the prosecutor’s erroneous and improper “guarantee” of the contents of the testimony, the trial court abused its discretion by discouraging the jurors from requesting that the testimony in question be read back to them. Nevertheless, we hold that the error was harmless, for we are convinced that “the error did not influence the jury, or had but very slight effect.” Kotteakos v. United States, 328 U.S. 750, 764, 66 S.Ct. 1239, 1247, 90 L.Ed. 1557 (1946) (nonconstitutional error). See United States v. Quinto, 582 F.2d 224, 235 (2d Cir.1978). The government’s case against Romano did not turn on whether Romano saw what was in the boxes, but on whether there was evidence that Romano was part of a scheme knowingly to sell hashish. The evidence of this, although circumstantial, was extremely strong. Hulst said three of his “strong boys” would pick up the hashish. Tr. at 229. The three were easily inferred to be Damsky, who was with Hulst in" }, { "docid": "23543186", "title": "", "text": "before the police arrived but was apprehended a block away. He gave a false name to arresting officers. Brewer was charged under California law with two felonies — grand theft and making terrorist threats — and the misdemeanor offense of giving false information to a police officer. At an initial trial, the jury convicted Brewer on the misdemeanor false information charge, but the court declared a mistrial on the two felony counts. At a retrial on the two felony counts, the court gave the second jury CALJIC 17.41.1, which states that: The integrity of a trial requires that jurors, at all times during their deliberations, conduct themselves as required by these instructions. Accordingly, should it occur that any juror refuses to deliberate or expresses an intention to disregard the law or to decide the case based on penalty or punishment, or any other improper basis, it is the obligation of the other jurors to immediately advise the Court of the situation. There was some evidence of trouble in the jury deliberations. The jury deliberated for 2 hours and 15 minutes on the first day, requested a readback of certain testimony and then recessed for the day. On the second day, the foreperson sent a note to the judge stating that “[o]ne juror would like to report that another juror may be considering penalty in his or her decision — based on a statement made during the first hour of our deliberation yesterday.” The court called the jury back into the courtroom and reinstructed it with CALJIC 17.41.1. After another day of deliberation and another request for a readback of testimony, the jury returned a guilty verdict on the two felony counts. During the sentencing phase, the jury heard evidence regarding Brewer’s prior felony convictions to help it determine whether his sentence should be enhanced under California’s three strikes law. One juror sent the trial judge a note, stating “[i]f what we are about to do pertains to [3] strikes, I am strongly against it... The court again instructed the jury with CALJIC 17.41.1, after which the jury unanimously imposed a" }, { "docid": "6020761", "title": "", "text": "emphasis). The Third Circuit has noted that the possibility of undue emphasis on transcripts sent in lieu of readbacks is minimal when the jury has asked to rehear extensive sections of testimony. See Bertoli, 40 F.3d at 1401. We agree with the Third Circuit and also with Judge Trager’s reasoning in the instant case that written transcripts provide the jury a more efficient method than readbacks of sorting through lengthy portions of testimony. The opportunity to turn pages of transcripts, some rapidly and some leisurely, will often be preferable to enduring a verbatim and usually unanimated rereading of testimony. See United States v. Grant, 52 F.3d 448, 450 (2d Cir.1995). In United States v. Russo, 110 F.3d 948, 953-54 (2d Cir.1997), we considered the analogous issue of furnishing the jury with written jury instructions, and we noted that such a practice is substantially more efficient than rereading the instructions in court. At the same time, however, we acknowledged that other courts have been concerned about a risk that the jury might misuse a written charge, and we noted that the judge in Russo effectively minimized this risk by cautioning the jury to consider the charge as a whole and to seek an explication if necessary. Id. at 954. While we recognize that supplying transcripts of trial testimony poses some risk of undue emphasis on selected passages, we conclude that the decision to provide the jury with transcripts in lieu of requested read-backs should be left to the trial court’s discretion, just like the decision as to a request for transcripts, see United States v. Poliak, 474 F.2d 828, 832 (2d Cir.1973). The decision to supply transcripts, either when requested or in lieu of a requested readback, should generally be guided by the same considerations that apply to a decision to permit a readback of testimony. Whether a court permits readbacks or sends transcripts, appropriate cautions should be given to the jury to minimize the particular risks associated with either technique. For example, a jury instruction reminding the jury to consider all the evidence without unduly emphasizing any portion of it" }, { "docid": "16051147", "title": "", "text": "Rule 606(b) of the Federal Rules of Evidence expressly prohibits the use of a juror’s affidavit to impeach a verdict except with respect to extraneous prejudicial information or outside influence. The state trial judge reviewed the allegations set forth in the affidavits of the jurors and affidavits in opposition thereto submitted by the prosecutor indicating that two of the three jurors’ affidavits were inaccurate and concluded: (1) no coercion or fear influenced the jurors’ verdict and (2) no outside influence was exerted upon the jurors. The court concluded that the affidavits could not be used to impeach the jury’s verdict. With certain exceptions, section 2254(d) of Title 28 of the United States Code requires federal courts in habeas proceedings “to show a high measure of deference to the factfindings made by the state courts.” Sumner v. Mata, 455 U.S. 591, 598, 102 S.Ct. 1303, 1307, 71 L.Ed.2d 480 (1982); accord Marshall v. Lonberger, 459 U.S. 422, 432,103 S.Ct. 843, 850, 74 L.Ed.2d 646 (1983). Upon review of the record as a whole, as required by § 2254(d)(8), we conclude that the state trial court’s determinations herein were “fairly supported by the record.” It is noteworthy that the chronology of events immediately preceding the verdict as set forth in the trial record indicates that, had there been any undue internal influence or any outside influence, the jury had the clear opportunity to bring this to the trial judge’s attention. On the day the verdict was returned, at 11:27 A.M., there was readback of testimony in response to a jury request; at 11:35 A.M. completion of readback and deliberations resumed; then followed a lunch break; at 2:55 P.M. there was another request for readback of a witness’ testimony; at 4:10 P.M. readback was completed and deliberations followed; whereupon at 4:15 P.M. a jury note was received indicating that a verdict had been reached; and at 4:35 P.M. the verdict was recorded. The jurors were then polled and each juror affirmed the verdict. Thus, the complaining jurors had several opportunities to communicate directly with the court if any of them felt unfairly coerced," } ]

[ { "docid": "14405488", "title": "", "text": "depletion blocks. Had the parties simply stipulated in haec verba that plaintiffs four timber depletion blocks serve “commercial [and] forest management ... purposes,” consistent with the Federal Circuit’s pronouncement in Weyerhaeuser, supra, the conclusion would effortlessly follow that no genuine issue of material fact precludes summary judgment. However, rather than follow the straightforward, uneonvoluted approach to drafting their stipulations of fact, the parties elected instead to aver vaguely that plaintiffs timber depletion accounts supplied the historical cost data of the timber within each depletion block for “both financial and accounting purposes” and, further, that said accounts were used for “financial operational purposes.” Jt. Stip. at H 5. In addition, the parties stipulated that plaintiffs division of its timber holdings into different depletion blocks is based on “whether the timber is owned in fee or held pursuant to a long-term lease,” as well as on the basis of “geographic or political boundaries.” Jt. Stip. at IT 3. Consequently, the court must consider, on this record — whether the parties’ choice of language presents or, more precisely, fails to negate a genuine issue of material fact pertinent to the Hurricane Frederic Casualty Loss SIP Issue. It is axiomatic that the parties may not stipulate the court into error, for the court may disregard any stipulation that is inadvertent, contrary to law, contrary to fact, or made without proper authority. Kaminer Constr. Corp. v. United States, 203 Ct.Cl. 182, 197, 488 F.2d 980, 988 (1973). The parties quite rightly declined to stipulate that each of plaintiffs four depletion blocks constitutes a SIP, for the Federal Circuit has unequivocally held that the SIP determination presents a question of law. Weyerhaeu-ser, 92 F.3d at 1151. That the litigants cannot bind the court with a stipulation of law has been long settled, and is clear beyond cavil. Swift & Co. v. Hocking Valley Ry. Co., 243 U.S. 281, 289, 37 S.Ct. 287, 289-90, 61 L.Ed. 722 (1917). For precisely the same reason, it is an incomplete answer to say that defendant, by virtue of its written and oral statements, has conceded the Hurricane Frederic Casualty Loss" } ]

[ { "docid": "9422731", "title": "", "text": "(June 23, 1986) (statement of Sen. Stevens). To alleviate these problems, Congress enacted § 60(b)(5) of DEFRA. Section 60(b)(5) temporarily exempted ANCs from certain statutory provisions designed to make it more difficult for unrelated corporations to affiliate for tax-sharing purposes. Id. Specifically, ANCs were exempted from the prerequisite 80% equity-ownership requirement for tax consolidation purposes. Id. The purpose of § 60(b)(5) was, therefore, to allow Native Corporations to sell their net operating losses (NOLs) and investment tax credits (ITCs) to unrelated profitable corporations in return for a portion of the income sheltered from tax liability. Id.; see Chugach Alaska Corp. v. United States, 34 F.3d 1462, 1464 (9th Cir.1992). Congress believed “that this infusion of capital would allow many Native corporations to put their financial houses in order.” 132 Cong.Ree. S14,946 (June 23, 1986) (statement of Sen. Stevens) (emphasis added). This is the statute pursuant to which Doyon formed and executed the transactions at issue. FACTS A Background Doyon was incorporated on June 16, 1972, pursuant to the Alaska Native Claims Settlement Act (ANCSA) of 1971. Doyon is and was, at times relevant to this action, an ANC. For its taxable year ending (TYE) October 31,1987, Doyon incurred substantial loss car-ryforwards, i.e., a total of $237,973,227, from the sale of certain asbestos deposits. During its TYE 1987 and 1988, Doyon entered into several contractual agreements to sell its NOLs and ITCs to unrelated corporations that sought to shelter some of their income from tax liability. These contractual agreements were formed pursuant to § 60(b)(5) of DEFRA. Pursuant to said tax-sharing contracts, the purchasing corporations created so-called “subsidiaries” that became temporary members of an affiliated group of which Doyon was the common parent. During the limited period of affiliation, the purchasing corporations would assign income to them subsidiaries and Doyon would report the income assigned on its consolidated federal income tax returns for its TYE 1987 and 1988, the year in which it obtained a stock interest therein. The unique features of Doyon’s contractual agreements with the various corporations, i.e., the Marriott Corporation, the Campbell Soup Company, and the Hilton Hotels" }, { "docid": "9422767", "title": "", "text": "the Disputed Sum. Thus, unlike the lessor, Doyon did not give up its anticipated benefit. Moreover, Doyon makes much of the fact that a portion of the payments came directly from the specially created subsidiaries. Specifically, Doyon attempts to analogize the payments with intercompany payments by affiliates of their allocated tax expense. The transaction chosen, however, is far more complicated then a simple intercompany payment. While it is true that the specially created subsidiaries were the conduits for the initial payments, it is also true that Marriott, Hilton, and Campbell, according to the joint stipulations, caused the remainder due Doyon to be transferred to its account. Consequently, there is a significant contribution to Doyon from non-affiliated members. Furthermore, we cannot conclude that an in-tercompany payment of an allocated tax expense is comparable to an intercompany payment for the benefit of using the parent’s losses and credits pursuant to a private eon-tract. Thus, we find Doyon’s analogy flawed. Having addressed plaintiffs argument, we now summarize our findings. First, we find that the transaction chosen by Doyon determines its tax consequence, not merely the substance. National Alfalfa, 417 U.S. at 148-49, 94 S.Ct. at 2137. Consequently, hypothesizing as to what would have happened had Doyon chosen a different route does not influence our conclusion. Second, the facts establish that Doyon decided, instead of using its losses and credits to offset its own income alone, to sell them to private parties, in exchange for a quid pro quo consideration, i.e., the Disputed Sum. Third, an item of “federal” tax benefit typically involves some action by the government. Here, however, contracts among private parties determined how much and under what conditions Doyon would receive this remuneration, i.e., its consideration for utilizing its NOLs and ITCs to shelter the income of Marriott, Campbell, and Hilton. Finally, we also note that excluding the Disputed Sum runs afoul of the purpose behind the AMT provisions. The proceeds from the sale of Doyon’s losses and credits constituted a significant portion of their record-high income and, in fact, enabled it to pay a dividend. Doyon’s 1988 Annual Report states" }, { "docid": "9422761", "title": "", "text": "rise to a tax benefit if they effectively offset its taxable income or results in the plaintiff receiving a tax refund from the Government. Next, we must determine whether the Disputed Sum is an item of federal tax benefit as we have defined it: an abatement of tax liability under the revenue laws, or a tax rebate or refund from the Federal Government. According to the facts herein, Doyon had a significant amount of losses and credits. Instead of choosing to solely offset its own income, Doyon decided to enter into, as it notes in it 1988 financial statement, NOL sales transactions. Pursuant to its sales contracts, specially created subsidiaries of Marriott, Campbell, and Hilton became temporary members of an affiliated group of which Doyon was the common parent. Marriott, Campbell, and Hilton then assigned certain amounts of their income to their subsidiaries. This income was subsequently sheltered, ie., effectively offset, on Doyon’s 1987 and 1988 consolidated tax returns. Accordingly, it is clear that Doyon and its affiliates received a tax benefit upon filing the consolidated tax returns. Moreover, in exchange for sheltering their income, Marriott, Campbell, and Hilton paid Doyon the Disputed Sum, via the specially created subsidiaries and various escrow arrangements. Against this factual background, Doyon contends, in sum, that the Disputed Sum it reported on its financial statement is a federal tax benefit item, and, therefore, “federal income taxes” under I.R.C. § 56(f)(2)(B), because: (i) the economic substance of the transaction should control; (ii) the ultimate source of the funds was the Federal Treasury; (iii) the form of the transaction is analogous to an intercompany payment of federal tax expense; and (iv) to convert the Disputed Sum into anything but an item of federal tax benefit is “contrary to the principle that a payment that anticipates future income has the same character as the future income would have had when collected.” We disagree with each of these contentions. We begin by noting that the economic substance of the transaction alone is not determinative of its tax consequences. Rather, it is well established that “a transaction is to" }, { "docid": "9422777", "title": "", "text": "accompanying benefits. Accordingly, the Commissioner cannot apply provisions of the Code nor principles of law which: (i) preclude such tax-affiliations from taking place; (2) directly interfere with an ANC’s ability to structure its contractual transactions to obtain the greatest benefit for the sale of its losses and credits; or (3) subject ANC-headed affiliations to administrative regulations which fail to recognize the special circumstances surrounding these transactions. In this instance, the IRS did not deny Doyon the use or full benefit of its losses or credits. Refusing to exclude the Disputed Sum from an ANC’s ANBI does not deprive ANCs of the opportunity to pursue § 60(b)(5) tax-affiliations. Here, Doyon sold its NOLs and ITCs to Marriott, Campbell, and Hilton without any interference by the IRS. Moreover, once the contract was formed, the IRS did not impede in any way upon Doyon’s ability to structure and use its NOLs and ITCs in such a manner as to achieve the greatest bargain, i.e., quid pro quo consideration, from the sale of its losses and credits. Lastly, a determination that the Disputed Sum is not “federal income taxes” for purposes of § 56(f)(2)(B) does not subject Doyon to any type of “needless administrative delay” or additional transactional costs. If we were to construe § 1804(e)(4) as broadly as plaintiff suggests, then ANCs would be able to use their losses and credits freely, without regard to any limitations imposed by the Code or its applicable regulations. Given that § 1804(e)(4) is merely a clarifying amendment to § 60(b)(5) of DEFRA, we cannot agree with plaintiff’s interpretation. Thus, we hold that the Commissioner’s determination to include the Disputed Sum in Doyon’s 1988 ANBI, for purposes of calculating its AMT and environmental tax liability, did not violate § 1804(e)(4). S. Construing Ambiguous Statutes in Favor of Native Americans Doyon also asserts that any ambiguity as to the application of § 1804(e)(4) to the case at bar should be resolved in its favor. Specifically, Doyon relies on a rule of construction instructing courts to liberally construe ambiguous statutes which can be “reasonably interpreted to confer a tax" }, { "docid": "9422765", "title": "", "text": "conclusion that the Disputed Sum merely reflects proceeds from the private sale of a property right. The plaintiff also argues that the “checks ... might as well have been written by the Treasury, because neither Marriott, Campbell, [n]or Hilton intended to pay anything except out of the proceeds of using Doyon’s tax benefit.” We are of the view, however, that the amount of taxable income Doyon could shelter with its losses and credits was, simply, a factor, albeit the dominant factor, that Marriott, Campbell, and Hilton took into consideration when determining the compensation Doyon would receive. Simply because the anticipated tax savings determined the amount of the “checks,” i.e., quid pro quo consideration, does not change the fact that Doyon received its consideration from private parties, pursuant to a private contractual agreement. Additionally, we do not find plaintiffs assertion that the substance of the transaction does not change simply because the “tax benefits were exchanged to dollars” persuasive. Plaintiff apparently contends that, while the Disputed Sum was paid to Doyon as contractual consideration, perhaps in anticipation of a federal tax benefit, it should, nevertheless, also be characterized as a federal tax benefit item. To support its assertion, plaintiff relies on Hort v. Commissioner, 313 U.S. 28, 30-31, 61 S.Ct. 757, 758, 85 L.Ed. 1168 (1940). Again, we note that the substance of the transaction alone is not controlling; we must look to the actual transaction the taxpayer chose to achieve its goals. Furthermore, Hort is distinguishable from the instant case. In Hort, the Court held that a lump sum payment by a lessee to the taxpayer-lessor in exchange for the release from the duration of its lease agreement is properly characterized as a rental payment and, accordingly, is ordinary income to the taxpayer-lessor. Here, Doyon is not receiving a current payment in lieu of an anticipated benefit. Rather, it has chosen to enter into a transaction that would require it to presently use its losses and credits. Put differently, Doyon was required to realize a tax benefit, i.e., use its NOLs and ITCs, as a condition precedent to receipt of" }, { "docid": "9422734", "title": "", "text": "to utilize the accumulated losses and credits, Marriott, via Marigold, made certain payments to Doy-on, as quid pro quo consideration. The contract provided that Marigold was to pay Doy-on 36.8 cents for each dollar of deduction or loss available and 80 cents for each dollar of investment credit available. By December 30, 1986, Marigold had paid Doyon $11,313,-600. “On July 28, 1988 Marigold paid Doyon an additional $1,092,493, for a total of $12,-406,093.” Stip. U11. Doyon, however, did not receive its payments outright. Rather, the contractual agreement required Doyon to contribute a portion of the payment to a grantor trust established as the form of escrow. 2. Campbell Transaction Doyon entered into a contractual agreement on July 14, 1987, with the Campbell Soup Company (Campbell) and CSC Alaska 1, Inc. (CSC), a subsidiary of Campbell. Campbell, like Marriott, also sought to structure a contractual transaction that would enable it to offset some of its taxable income with Doyon’s losses and credits. To that end, it was agreed that CSC would become a member of Doyon’s affiliated group. Consolidation was achieved between CSC and Doy-on upon Doyon’s purchase of CSC’s voting preferred stock, a total of 2,000 shares, for $5,000, on July 14, 1987. The consolidation period ended on October 31,1987 when Doy-on sold its CSC stock to a Campbell affiliate for $5,000. Pursuant to the contract, the Campbell affiliated group assigned sufficient income to CSC, with the result that CSC recognized, as agreed to by the parties, $100 million in taxable income during the consolidation period of July 14, 1987 to October 31, 1987. The income assigned to CSC was included, of course, in Doyon’s 1987 consolidated federal tax return. Additionally, the contractual agreement provided that Doyon would receive 39 cents for each dollar of net federal taxable income recognized by CSC, a total of $39 million. Full payment was conditioned upon the completion of the sale of certain asbestos properties by July 30, 1987. As agreed, CSC immediately paid Doyon $100,000 upon the closing of said contract. Following the completion of the sale of the asbestos properties, CSC paid" }, { "docid": "9422768", "title": "", "text": "determines its tax consequence, not merely the substance. National Alfalfa, 417 U.S. at 148-49, 94 S.Ct. at 2137. Consequently, hypothesizing as to what would have happened had Doyon chosen a different route does not influence our conclusion. Second, the facts establish that Doyon decided, instead of using its losses and credits to offset its own income alone, to sell them to private parties, in exchange for a quid pro quo consideration, i.e., the Disputed Sum. Third, an item of “federal” tax benefit typically involves some action by the government. Here, however, contracts among private parties determined how much and under what conditions Doyon would receive this remuneration, i.e., its consideration for utilizing its NOLs and ITCs to shelter the income of Marriott, Campbell, and Hilton. Finally, we also note that excluding the Disputed Sum runs afoul of the purpose behind the AMT provisions. The proceeds from the sale of Doyon’s losses and credits constituted a significant portion of their record-high income and, in fact, enabled it to pay a dividend. Doyon’s 1988 Annual Report states in relevant part: With a record $77.5 million in profits, this report reflects Doyon’s highest earnings in the histo'ry of Doyon. The success of the past year has been the result of several developments. The most significant was the sale of net operating losses (NOLs), which enabled Doyon to recover a portion of its asbestos tax losses by selling them to other companies____ The NOL transactions required a great deal of corporate energy, including research, analysis, negotiation and lobbying. Our success with the NOL sales allowed the Board of Directors to declare a special dividend. (emphasis added). This fact weighs heavily in favor of including the proceeds at issue in Doyon’s ANBI for purposes of determining its AMT liability, because Congress sought to ensure that high-income earners pay their fair share of the country’s tax burden and the proceeds of sale are primarily responsible for Doyon’s unusually high earnings for that year. Thus, we hold that the Disputed Sum does not reflect an item of tax benefit. Rather, the Disputed Sum represents a private benefit" }, { "docid": "9422736", "title": "", "text": "Doyon an additional $19,400,000. Finally, on October 15, 1987, pursuant to an escrow agreement between Doyon, CSC, and Campbell, CSC paid the balance of the payment owed to Doyon, $19,500,000, into an escrow account established with Rainier National Bank. 3. Hilton Transactions i. Hilton I Transaction The Hilton Hotels Corporation (Hilton) also sought to take advantage of Doyon’s unclaimed losses and credits to shelter some of its income from tax liability. To obtain the benefit of Doyoris NOLs and ITCs, Hilton and its newly-formed subsidiary, HIL-A VII Corp. (Corp. VII), entered into a contract with Doyon on December 18,1987. It was agreed that Corp. VII would become an affiliated member of Doyon’s group. Consequently, to effectuate consolidation, Doyon purchased 100 shares of Corp. VII’s Class A common stock, for $100, upon execution of the foregoing contractual agreement. The consolidation period ended shortly thereafter, on December 31,1987, when Hilton exercised its option and repurchased the Corp. VII stock from Doyon for $101. Just prior to this contract, Hilton capitalized Corp. VII with $1,000 and a Hilton promissory note in the “principal amount of $9,453,509,454, bearing interest at 12% per annum.” Stip. 1121. Corp. VII transferred this note to a Limited Partnership, as its capital contribution in exchange for a limited partnership interest. Pursuant to the partnership agreement, limited partners like Corp. VII were allocated 99% of the partnership’s income. Under this structure, Corp. VII accrued $40 million in gross income during its consolidation period with Doyon, i.e., December 18, 1987 through December 31, 1987. To receive the full benefit of Doyon’s losses and credits, the income Corp. VII accrued was included in Doyon’s consolidated federal tax return for its TYE 1988. Furthermore, the contract between Hilton, Corp. VII, and Doyon set forth the method and amount of payment Doyon would receive in exchange for making available its losses and credits to Hilton. Specifically, Corp. VII was required “to pay Doyon 35% of each dollar of taxable income transferred to Corp. VII, or a total of $14 million.” Stip. H23. Pursuant to these provisions, Doyon received, by wire transfer, $8,400,000 on December" }, { "docid": "10004374", "title": "", "text": "the completeness of the contract files in PX 14a and PX 14b until almost nine months after trial. In essence, Exxon implies that the Government is somehow estopped from contesting the completeness of the contract files in PX 14a and PX 14b, due to its participation in the process of obtaining those files, or that the Government’s objection to the incompleteness of the contract files in PX 14a and PX 14b was untimely and, therefore, waived. However, even assuming, arguendo, that the Government waived, or is estopped from raising, any objection to the incompleteness of the contract files in PX 14a and PX 14b, that would not compel the court, sitting as the trier of fact, to make a finding that such contract files are complete. A litigant’s failure to raise an evidentiary objection cannot, ipso facto, enhance the probative weight of evidence that is otherwise incompetent as proof of a particular fact in controversy. As explained above, no contract file in PX 14a and PX 14b can logically support a negative inference that the producer’s reserved processing rights went unexercised in 1975, because the completeness of such contract files is unproven. Contrary to Exxon’s assertion, the Government’s failure to raise an incompleteness objection at trial cannot transform those contract files and make them whole. Moreover, by stipulating that PX 14a and PX 14b were admissible without objection, the parties did not, as a conse-quenee, render those contract files complete, when in literal fact there is no evidence that such files are complete. In short, it is axiomatic that the litigants cannot stipulate the court into error. Dillon, Read & Co., Inc. v. United States, 875 F.2d 293, 300 (Fed.Cir.1989); Kaminer Constr. Corp. v. United States, 203 Ct.Cl. 182, 197, 488 F.2d 980, 988 (1973). Thus, whereas the parties’ stipulation of admissibility made PX 14a and PX 14b admissible as business records under Rule 803(6), that did not automatically make PX 14a and PX 14b also admissible under Rule 803(7), as evidence of the nonoceurrenee of exercises of reserved processing rights. Consequently, in evaluating the probative weight of the contract" }, { "docid": "9422743", "title": "", "text": "Disputed Sum). The Disputed Sum represents the amount of financial income realized by Doyon during the taxable year from its tax-sharing contractual agreements: (i) $39,000,000 from the Campbell transaction; (ii) $25,200,000 on account of the Hilton transaction; (iii) $1,356,093 pursuant to the Marriott transaction; and (iv) $4,950,000 represents an adjustment to book income to reverse the effects of a prior year’s federal tax accruals. Doyon waived its right on December 23, 1992, to a statutory notice of partial disallowance of its claim for refund of 1988 taxes. CONTENTIONS OF THE PARTIES A. Plaintiff Doyon was the initial party to move for partial summary judgment. In its motion filed May 7,1996, plaintiff maintains that the Disputed Sum must be excluded, i.e., subtracted, from its ANBI, for purposes of calculating its AMT and environmental tax liability. Doyon points to I.R.C. § 56(f)(2)(B) and Treas.Reg. § 1.56-l(d)(3)(i), which provide that ANBI must be “adjusted to disregard ... any Federal income taxes.” Accordingly, Doyon contends that the Disputed Sum constitutes “federal income taxes” within the meaning of the relevant code and regulatory provisions. More specifically, Doyon alleges that “federal income taxes” contemplates both items of tax expense and items of tax benefit. Doyon then avers that in both substance and form, for reasons that will be explicated infra, the Disputed Sum is an item of tax benefit. Thus, concludes plaintiff, because the Disputed Sum is an item of tax benefit and, therefore, an item of “federal income tax,” such amount cannot be taken into consideration when determining its 1988 ANBI. In addition, plaintiff charges that Congress specifically forbade the Commissioner, by its enactment of § 1804(e)(4) of the Tax Reform Act of 1986, from applying any provision of the Code or principle of law to deny an ANC the “full benefit” of its tax NOLs and ITCs. Therefore, avers plaintiff, to prevent it from eliminating the Disputed Sum from its ANBI would deny it the full benefit of its tax credits and losses in violation of § 1804(e)(4). Lastly, plaintiff asserts that any ambiguity raised as to the application of § 1804(e)(4) should be" }, { "docid": "9422739", "title": "", "text": "Corp. I, with a $1,000 capital contribution and a promissory note in the principal amount of $45,000,000. Corp. I transferred this promissory note to a Limited Partnership, in exchange for a limited partnership interest. Limited partners, according to the partnership agreement, were allocated 99% of the limited partnership’s income. Further, Hilton agreed to directly assign $45,-454,455 of its taxable income to Corp. I. The net effect of these transactions was that Corp. I accrued $40 million in gross income during its period of consolidation with Doyon. As agreed, this income was reported on Doy-on’s consolidated federal tax return for its TYE 1988. The payment provisions of the agreement stated that Doyon was entitled to 28% of each dollar of taxable income transferred to Corp. I, or a total of $11.2 million. Unlike the previous transaction, Corp. I issued a promissory note guaranteed by Hilton for the entire sum owed to Doyon. Under the terms of the promissory note, payment was conditioned upon reaching a final determination of Doyon’s tax liability with respect to its TYE 1988. C. Filing Consolidated Tax Return for TYE 1987 and 1988 In July 1988, pursuant to an extension of time granted by the defendant, Doyon and its affiliates, which included both CSC and Marigold, filed a consolidated tax return for the tax year ending October 31, 1987. Doy-on’s loss from the disposition of a mineral property in that year exceeded the group’s total consolidated net income, including the income assigned to the specially created subsidiaries, Marigold and CSC. Consequently, “Doyon and its affiliates incurred no income tax liability for this year.” Ex. 9 at 749, 767. Also, in July of 1989, Doyon and its affiliated companies, pursuant to an extension of time granted by the defendant, filed a consolidated federal income tax return for the tax year ending October 31,1988. Doyon and its affiliates, including Corp. VII and Corp. I, did not incur any regular tax liability for TYE October 31, 1988 “because Doyon’s net operating loss carryover from the fiscal year ended October 31, 1987 exceeded the group’s consolidated taxable income (before taking the" }, { "docid": "9422766", "title": "", "text": "anticipation of a federal tax benefit, it should, nevertheless, also be characterized as a federal tax benefit item. To support its assertion, plaintiff relies on Hort v. Commissioner, 313 U.S. 28, 30-31, 61 S.Ct. 757, 758, 85 L.Ed. 1168 (1940). Again, we note that the substance of the transaction alone is not controlling; we must look to the actual transaction the taxpayer chose to achieve its goals. Furthermore, Hort is distinguishable from the instant case. In Hort, the Court held that a lump sum payment by a lessee to the taxpayer-lessor in exchange for the release from the duration of its lease agreement is properly characterized as a rental payment and, accordingly, is ordinary income to the taxpayer-lessor. Here, Doyon is not receiving a current payment in lieu of an anticipated benefit. Rather, it has chosen to enter into a transaction that would require it to presently use its losses and credits. Put differently, Doyon was required to realize a tax benefit, i.e., use its NOLs and ITCs, as a condition precedent to receipt of the Disputed Sum. Thus, unlike the lessor, Doyon did not give up its anticipated benefit. Moreover, Doyon makes much of the fact that a portion of the payments came directly from the specially created subsidiaries. Specifically, Doyon attempts to analogize the payments with intercompany payments by affiliates of their allocated tax expense. The transaction chosen, however, is far more complicated then a simple intercompany payment. While it is true that the specially created subsidiaries were the conduits for the initial payments, it is also true that Marriott, Hilton, and Campbell, according to the joint stipulations, caused the remainder due Doyon to be transferred to its account. Consequently, there is a significant contribution to Doyon from non-affiliated members. Furthermore, we cannot conclude that an in-tercompany payment of an allocated tax expense is comparable to an intercompany payment for the benefit of using the parent’s losses and credits pursuant to a private eon-tract. Thus, we find Doyon’s analogy flawed. Having addressed plaintiffs argument, we now summarize our findings. First, we find that the transaction chosen by Doyon" }, { "docid": "9422776", "title": "", "text": "among commonly controlled businesses. If I.R.C. § 482 applied to ANC-headed affiliations, it would generate a considerable amount of uncertainty, because the Service could reallocate the ANC’s losses and credits in such a manner that would reduce the amount of income sheltered. Moreover, because the amount of income sheltered is largely determinative of the payment an ANC received under the contractual agreements, a reduction in tax-savings would, in turn, reduce an ANC’s capital infusion, i.e., its quid pro quo consideration. Furthermore, the uncertainty generated from the IRS’s position would lessen the appeal of ANC tax-sharing transactions, thereby deterring profitable corpora tions from contracting with ANCs. Thus, because both I.R.C. §§ 269 and 482 would effectively prevent an ANC from enjoying the benefit and use of its losses and credits pursuant to § 60(b)(5), Congress passed the clarifying language of § 1804(e)(4) to specifically prohibit the IRS from applying these sections to ANC tax-sharing affiliations. Therefore, we find that Congress enacted § 1804(e)(4) to foster the unique transfers authorized by § 60(b)(5) of DEFRA, and them accompanying benefits. Accordingly, the Commissioner cannot apply provisions of the Code nor principles of law which: (i) preclude such tax-affiliations from taking place; (2) directly interfere with an ANC’s ability to structure its contractual transactions to obtain the greatest benefit for the sale of its losses and credits; or (3) subject ANC-headed affiliations to administrative regulations which fail to recognize the special circumstances surrounding these transactions. In this instance, the IRS did not deny Doyon the use or full benefit of its losses or credits. Refusing to exclude the Disputed Sum from an ANC’s ANBI does not deprive ANCs of the opportunity to pursue § 60(b)(5) tax-affiliations. Here, Doyon sold its NOLs and ITCs to Marriott, Campbell, and Hilton without any interference by the IRS. Moreover, once the contract was formed, the IRS did not impede in any way upon Doyon’s ability to structure and use its NOLs and ITCs in such a manner as to achieve the greatest bargain, i.e., quid pro quo consideration, from the sale of its losses and credits. Lastly, a" }, { "docid": "9422732", "title": "", "text": "1971. Doyon is and was, at times relevant to this action, an ANC. For its taxable year ending (TYE) October 31,1987, Doyon incurred substantial loss car-ryforwards, i.e., a total of $237,973,227, from the sale of certain asbestos deposits. During its TYE 1987 and 1988, Doyon entered into several contractual agreements to sell its NOLs and ITCs to unrelated corporations that sought to shelter some of their income from tax liability. These contractual agreements were formed pursuant to § 60(b)(5) of DEFRA. Pursuant to said tax-sharing contracts, the purchasing corporations created so-called “subsidiaries” that became temporary members of an affiliated group of which Doyon was the common parent. During the limited period of affiliation, the purchasing corporations would assign income to them subsidiaries and Doyon would report the income assigned on its consolidated federal income tax returns for its TYE 1987 and 1988, the year in which it obtained a stock interest therein. The unique features of Doyon’s contractual agreements with the various corporations, i.e., the Marriott Corporation, the Campbell Soup Company, and the Hilton Hotels Corporation, are discussed in detail below, seriatim. B. The Individual Contractual Agreements 1. Marriott Transaction On November 13,1986, Doyon entered into a contract with the Marriott Corporation (Marriott) and a newly-formed subsidiary of Marriott, Second Marigold, Inc. (Marigold). The ultimate goal of this transaction was to enable Marriott to offset certain taxable income by utilizing Doyoris NOLs and ITCs. To that end, the contractual agreement provided that Marigold would become a member of an affiliated group of which Doyon was the common parent. Accordingly, upon execution of the contractual agreement, Doyon acquired 100 shares of Marigold’s Class A common stock, for $5,000. Thereafter, Marriott assigned, based upon Doyon’s estimate of its available losses and credit, $33,-712,209 of its taxable income to Marigold. Pursuant to the foregoing contract, Doyon included the income assigned to Marigold on its consolidated return for the 1987 taxable year. The consolidation period between Doyon and Marigold ended on October 16, 1987, when Marriott exercised its option to repurchase the acquired 100 shares, from Doyon, for $6,000. In exchange for allowing Marriott" }, { "docid": "10004375", "title": "", "text": "producer’s reserved processing rights went unexercised in 1975, because the completeness of such contract files is unproven. Contrary to Exxon’s assertion, the Government’s failure to raise an incompleteness objection at trial cannot transform those contract files and make them whole. Moreover, by stipulating that PX 14a and PX 14b were admissible without objection, the parties did not, as a conse-quenee, render those contract files complete, when in literal fact there is no evidence that such files are complete. In short, it is axiomatic that the litigants cannot stipulate the court into error. Dillon, Read & Co., Inc. v. United States, 875 F.2d 293, 300 (Fed.Cir.1989); Kaminer Constr. Corp. v. United States, 203 Ct.Cl. 182, 197, 488 F.2d 980, 988 (1973). Thus, whereas the parties’ stipulation of admissibility made PX 14a and PX 14b admissible as business records under Rule 803(6), that did not automatically make PX 14a and PX 14b also admissible under Rule 803(7), as evidence of the nonoceurrenee of exercises of reserved processing rights. Consequently, in evaluating the probative weight of the contract files in PX 14a and PX 14b, the court is entitled to consider “circumstances [that] indicate lack of trustworthiness,” Fed.R.Evid. 803(7), including the evident incompleteness of those contract files. Having done so, we hold that Exxon’s proposed negative inference is fundamentally untenable. Exxon’s efforts to affirmatively prove that no reserved processing rights were exercised in 1975, with respect to the 319 intrastate transactions involving such rights, fare no better than Exxon’s proposed negative inference. Mr. E akin’s attempt to utilize the internal accounting records of LoVaca Gathering Company, his former employer, in order to distinguish Lo-Vaca’s 1975 raw gas purchases from its purchases of processed gas, is gravely flawed. It is true that Lo-Vaca Accounts 41 (“Purchase from Wellhead”) and 42 (“Purchase from Field Lines”) purport to signify raw gas purchases, whereas Lo-Vaca Account 43 (“Purchase from Gasoline Plant Outlet”) purports to signify purchases of processed gas. However, Mr. Eakin admitted that he was unable to obtain any Lo-Vaca accounting records that categorize Lo-Vaca’s 1975 gas purchases in the foregoing manner and, therefore, had to" }, { "docid": "9422735", "title": "", "text": "affiliated group. Consolidation was achieved between CSC and Doy-on upon Doyon’s purchase of CSC’s voting preferred stock, a total of 2,000 shares, for $5,000, on July 14, 1987. The consolidation period ended on October 31,1987 when Doy-on sold its CSC stock to a Campbell affiliate for $5,000. Pursuant to the contract, the Campbell affiliated group assigned sufficient income to CSC, with the result that CSC recognized, as agreed to by the parties, $100 million in taxable income during the consolidation period of July 14, 1987 to October 31, 1987. The income assigned to CSC was included, of course, in Doyon’s 1987 consolidated federal tax return. Additionally, the contractual agreement provided that Doyon would receive 39 cents for each dollar of net federal taxable income recognized by CSC, a total of $39 million. Full payment was conditioned upon the completion of the sale of certain asbestos properties by July 30, 1987. As agreed, CSC immediately paid Doyon $100,000 upon the closing of said contract. Following the completion of the sale of the asbestos properties, CSC paid Doyon an additional $19,400,000. Finally, on October 15, 1987, pursuant to an escrow agreement between Doyon, CSC, and Campbell, CSC paid the balance of the payment owed to Doyon, $19,500,000, into an escrow account established with Rainier National Bank. 3. Hilton Transactions i. Hilton I Transaction The Hilton Hotels Corporation (Hilton) also sought to take advantage of Doyon’s unclaimed losses and credits to shelter some of its income from tax liability. To obtain the benefit of Doyoris NOLs and ITCs, Hilton and its newly-formed subsidiary, HIL-A VII Corp. (Corp. VII), entered into a contract with Doyon on December 18,1987. It was agreed that Corp. VII would become an affiliated member of Doyon’s group. Consequently, to effectuate consolidation, Doyon purchased 100 shares of Corp. VII’s Class A common stock, for $100, upon execution of the foregoing contractual agreement. The consolidation period ended shortly thereafter, on December 31,1987, when Hilton exercised its option and repurchased the Corp. VII stock from Doyon for $101. Just prior to this contract, Hilton capitalized Corp. VII with $1,000 and a Hilton" }, { "docid": "9422737", "title": "", "text": "promissory note in the “principal amount of $9,453,509,454, bearing interest at 12% per annum.” Stip. 1121. Corp. VII transferred this note to a Limited Partnership, as its capital contribution in exchange for a limited partnership interest. Pursuant to the partnership agreement, limited partners like Corp. VII were allocated 99% of the partnership’s income. Under this structure, Corp. VII accrued $40 million in gross income during its consolidation period with Doyon, i.e., December 18, 1987 through December 31, 1987. To receive the full benefit of Doyon’s losses and credits, the income Corp. VII accrued was included in Doyon’s consolidated federal tax return for its TYE 1988. Furthermore, the contract between Hilton, Corp. VII, and Doyon set forth the method and amount of payment Doyon would receive in exchange for making available its losses and credits to Hilton. Specifically, Corp. VII was required “to pay Doyon 35% of each dollar of taxable income transferred to Corp. VII, or a total of $14 million.” Stip. H23. Pursuant to these provisions, Doyon received, by wire transfer, $8,400,000 on December 18, 1987. Corp. VII paid the balance, $5,600,000, with a promissory note guaranteed by Hilton. “Payment of all accrued and unpaid principal and interest on the promissory note was due upon the closing for federal income tax audit and assessment purposes of Doyoris taxable year ending October 31, 1988.” Stip. H 24. ii. Hilton II Transaction Hilton and Doyon structured a second contractual transaction to further enable Hilton to utilize Doyon’s losses and credits (Hilton II Transaction). Hilton, as in its first transaction, created another special subsidiary to take part in this transaction, HIL-A Corp. I (Corp. I). Thereafter, Hilton and Corp. I entered into a contract with Doyon, on April 29, 1988. Under the terms of this contractual agreement, Corp. I became a member of Doyoris affiliated group. Consolidation was achieved on April 29,1988, when Doyon purchased 100 shares of Corp. I for $100. At the close of business on June 15,1988, Hilton repurchased the stock of Corp. I from Doyon for $101, thereby terminating the consolidation period. Hilton capitalized its specially created subsidiary," }, { "docid": "9422760", "title": "", "text": "deductions against income received from other sources or use tax credits to reduce the taxes otherwise payable on account of such income.” Randall v. Loftsgaarden, 478 U.S. 647, 656, 106 S.Ct. 3143, 3149, 92 L.Ed.2d 525 (1986). An item of federal tax benefit is not merely, as plaintiff would have us believe, an “accounting adjustment designed to reflect the effect of tax items of book earnings.” Furthermore, in keeping with the principle that provisions granting deductions and exemptions from tax should be strictly construed, we note that “federal” as that word is used in the Code, regulations, and legislative history cited to by the plaintiff, suggests that an item of federal tax benefit must arise in connection with government action. Consequently, we agree with the defendant and find that an item of federal tax benefit is an abatement of liability under the revenue laws. We further recognize that an item of federal tax benefit may take the form of a tax rebate or refund from the Federal Government. Accordingly, Doyon’s losses and credits may give rise to a tax benefit if they effectively offset its taxable income or results in the plaintiff receiving a tax refund from the Government. Next, we must determine whether the Disputed Sum is an item of federal tax benefit as we have defined it: an abatement of tax liability under the revenue laws, or a tax rebate or refund from the Federal Government. According to the facts herein, Doyon had a significant amount of losses and credits. Instead of choosing to solely offset its own income, Doyon decided to enter into, as it notes in it 1988 financial statement, NOL sales transactions. Pursuant to its sales contracts, specially created subsidiaries of Marriott, Campbell, and Hilton became temporary members of an affiliated group of which Doyon was the common parent. Marriott, Campbell, and Hilton then assigned certain amounts of their income to their subsidiaries. This income was subsequently sheltered, ie., effectively offset, on Doyon’s 1987 and 1988 consolidated tax returns. Accordingly, it is clear that Doyon and its affiliates received a tax benefit upon filing the" }, { "docid": "9422753", "title": "", "text": "into account on the taxpayer’s applicable financial statement.” Doyon contends that the Disputed Sum is “federal income taxes” within the meaning of I.R.C. § 56(f)(2)(B) and Treas.Reg. § 1.56-l(d)(3)(i). More specifically, plaintiff argues that “federal income taxes” as used in I.R.C. § 56(f)(2)(B) contemplates items of tax benefit, in addition to items of tax expense. Here, argues Doyon, the Disputed Sum is an item of tax benefit, for the reasons discussed infra, and, consequently, such amount must be excluded as “federal income taxes” from its ANBI, thereby reducing its AMT liability- i. Interpreting the Code and Its Applicable Regulations: To prevail on its motion, plaintiff must prove by a preponderance of the evidence that the Disputed Sum is “federal income taxes” within the meaning of I.R.C. § 56(f)(2)(B). Because Doyon admits that the Disputed Sum is not an item of federal tax expense, the foundation of its position rests on its assertion that items of tax benefit come within the meaning of “federal income taxes.” To support its interpretation of the relevant statute, Doyon relies principally on legislative history. We, however, are continuously mindful of the rale of statutory construction, which instructs us that “legislative history ... may be referred to only in instances whe[re] the statutory terms are ambiguous and the intent unclear.” Snap-On Tools Inc. v. United States, 26 Cl.Ct. 1045, 1070 (1992), aff'd, 26 F.3d 137 (Fed.Cir.1994). This court’s role is “to interpret the laws, as evidenced by the statutory language, rather than to reconstruct legislative intentions,” and unless otherwise specifically defined, “words will be interpreted as taking their ordinary, contemporary, and common meaning.” Snap-On Tools Inc., 26 Cl.Ct. at 1057; see also Mulholland v. United States, 28 Fed.Cl. 320, 332 (1993), aff'd, 22 F.3d 1105 (Fed.Cir.1994). Accordingly, “where the language is clear, the courts should not replace that language with unenacted legislative intent, [citations omitted] and when a statute evidently was drawn with care, and its language is plain and unambiguous, a court cannot supply omissions----” Snap-On Tools, 26 Cl.Ct. at 1057; see also International Paper Co. v. United States, 33 Fed.Cl. 384, 390 (1995) (citing" }, { "docid": "9422738", "title": "", "text": "18, 1987. Corp. VII paid the balance, $5,600,000, with a promissory note guaranteed by Hilton. “Payment of all accrued and unpaid principal and interest on the promissory note was due upon the closing for federal income tax audit and assessment purposes of Doyoris taxable year ending October 31, 1988.” Stip. H 24. ii. Hilton II Transaction Hilton and Doyon structured a second contractual transaction to further enable Hilton to utilize Doyon’s losses and credits (Hilton II Transaction). Hilton, as in its first transaction, created another special subsidiary to take part in this transaction, HIL-A Corp. I (Corp. I). Thereafter, Hilton and Corp. I entered into a contract with Doyon, on April 29, 1988. Under the terms of this contractual agreement, Corp. I became a member of Doyoris affiliated group. Consolidation was achieved on April 29,1988, when Doyon purchased 100 shares of Corp. I for $100. At the close of business on June 15,1988, Hilton repurchased the stock of Corp. I from Doyon for $101, thereby terminating the consolidation period. Hilton capitalized its specially created subsidiary, Corp. I, with a $1,000 capital contribution and a promissory note in the principal amount of $45,000,000. Corp. I transferred this promissory note to a Limited Partnership, in exchange for a limited partnership interest. Limited partners, according to the partnership agreement, were allocated 99% of the limited partnership’s income. Further, Hilton agreed to directly assign $45,-454,455 of its taxable income to Corp. I. The net effect of these transactions was that Corp. I accrued $40 million in gross income during its period of consolidation with Doyon. As agreed, this income was reported on Doy-on’s consolidated federal tax return for its TYE 1988. The payment provisions of the agreement stated that Doyon was entitled to 28% of each dollar of taxable income transferred to Corp. I, or a total of $11.2 million. Unlike the previous transaction, Corp. I issued a promissory note guaranteed by Hilton for the entire sum owed to Doyon. Under the terms of the promissory note, payment was conditioned upon reaching a final determination of Doyon’s tax liability with respect to its TYE" } ]

[ { "docid": "3145894", "title": "", "text": "extension of credit. Meyers, supra, at 728. Consequently, in this factual setting, both appellants are ‘creditors’ under the Act, Clearview [Watson] as the credit arranger and Chrysler Credit [Ford Motor Credit] as the credit extender.” Id. at 515. Since, following Meyers, we find that both Watson and Ford Motor Credit were creditors under the Truth in Lending Act, in order to allocate liability between the two, we must look to the provisions of 12 C.F.R. § 226.6(d) which regulates disclosure when there are multiple creditors. “If there is more than one creditor in a transaction, each creditor shall be clearly identified and shall be responsible for making only those disclosures required by this part which are within his knowledge and the purview of his relationship with the customer. If two or more creditors make a joint disclosure, each creditor shall be clearly identified. The disclosures required under paragraphs (b) and (c) of § 226.8 shall be made by the seller if he extends or arranges for the extension of credit. Otherwise disclosures shall be made as required under paragraphs (b) and (d) of § 226.8.” Meyers referred only briefly to § 226.6(d) in a footnote. The Court used § 226.6(d) to illustrate that although there were multiple creditors, there was only one credit sale and one disclosure statement. It concluded that only one penalty should be imposed — the amount of the penalty to be split between those liable. In short, the Fifth Circuit considered § 226.6(d) only insofar as it implies a “single recovery” rule; the Court did not deal with § 226.6(d) in any other aspect. There have been few judicial interpretations of this relatively new Truth in Lending regulation. One was offered by the Third Circuit in Manning v. Princeton Consumer Discount Co., 3 Cir. 1976, 533 F.2d 102. In that case the plaintiff arranged to buy a used car from the seller. The seller then made certain preparations with the defendant finance company and drove the plaintiff to the finance company where she signed documents, received a disclosure sheet and received a check which she in" } ]

[ { "docid": "473342", "title": "", "text": "and (d) pertaining to credit loans .... In short, we hold that if the transaction is one in which the seller arranges credit, the obligation of disclosure is placed upon him by the third sentence of Regulation § 226.6(d). In that factual situation the specific direction of the third sentence prevails over the general language limiting the scope of disclosure to items within the creditor’s knowledge and the purview of his relationship with the customer. Manning, 533 F.2d at 105 (emphasis added). The Court of Appeals for the Tenth Circuit read § 226.6(d) differently. In Hinkle v. Rock Springs National Bank, 538 F.2d 295, 297 (10th Cir. 1976), the court asserted that “Regulation Z [12 C.F.R. § 226.6(d)] contemplates that when there are several ‘creditors’ they each shall be responsible for disclosures which are within the scope of its relationship with the consumer and of data they possess.” Applying this Regulation, the court held both the seller, which was the arranger of credit, and the bank, which was the extender of credit, liable for certain nondisclosures. The court ignored the last two sentences of § 226.6(d). Recently, the Court of Appeals for the District of Columbia Circuit was faced with the issue of liability among multiple creditors. In Price v. Franklin Investment Co., 574 F.2d 594, 601-02 (D.C. Cir. 1978), the court rejected the Manning approach and agreed with Hinkle, stating that: [w]e are loathe in the absence of clearly compelling language to adopt a reading that would permit a finance company to escape all liability for nondisclosures by enlisting a seller of goods to arrange for an extension of credit. ... To the extent that the finance company influences the conduct of the seller, the deterrent purpose of the liability provisions of the Act is advanced by interpreting the first sentence of section 226.6(d) to control liability for failure to make required disclosures. The limitation of “responsib[ility]” in the first sentence to disclosure of matters “within [the creditors’] knowledge and the purview of his relationship with the customer” confines multiple creditors’ potential liability to non-disclosures for which they are" }, { "docid": "16594553", "title": "", "text": "as in the instant case. The Court stated: Regulation Z, promulgated pursuant to the Act, defines the term consistently with the above: “ ‘Creditor’ means a person who in the ordinary course of business regularly extends or arranges for the extension of consumer credit .... ” 12 CFR § 226.2(s). On the facts of this case, the above definition easily encompasses both the dealers and FMCC. Each dealer arranged for the extension of credit but FMCC actually extended the credit, (footnote omitted) Ford Motor Credit Company v. Cenance, 452 U.S. 155, 101 S.Ct. 2239, 2241, 68 L.Ed.2d 744 (1981). See also Price v. Franklin Investment Co., Inc., 574 F.2d 594, 601 (D.C.Cir.1978); Hinkle v. Rock Springs National Bank, 538 F.2d 295, 297 (10th Cir. 1976); Mirabal v. General Motors Acceptance Corp., 537 F.2d 871, 874 n.1 (7th Cir. 1976). The position of the Bank in this case is virtually identical to that of FMCC in the Cenance case. We therefore conclude that the Bank is a creditor. II We next consider whether the TILA was violated by a failure to identify the Bank as a creditor. Regulation Z, 12 C.F.R. § 226.-6(d) requires in part: If there is more than one creditor or lessor in a transaction, each creditor or lessor shall be clearly identified .... In Milhollin v. Ford Motor Credit Co., 9 Cir., 588 F.2d 753 at 757, we held that the following statement was sufficient to disclose Ford Motor Credit’s exact role in the transaction: The foregoing contract hereby is accepted by the Seller and assigned to Ford Motor Credit Company in accordance with the terms of the assignment set forth on the reverse side hereof. Seller _ By _ Title _ The use of the word “creditor” was held not to be required. Id.; accord, Sharp v. Ford Motor Credit Co., 615 F.2d 423, 426 (7th Cir. 1980); Augusta v. Marshall Motor Co., 614 F.2d 1085, 1086 (6th Cir. 1979). The Supreme Court in Ford Motor Credit Company v. Cenance, 101 S.Ct. at 2241-42, held that a statement notifying the buyer of an assignment to Ford" }, { "docid": "16447520", "title": "", "text": "be responsible for making only those disclosures required by this Part which are within his knowledge and the purview of his relationship with the customer or lessee. [2] If two or more creditors or lessors make a joint disclosure, each creditor or lessor shall be clearly identified. [3] The disclosures required under paragraphs (b) and (c) of § 226.8 shall be made by the seller if he extends or arranges for the extension of credit. [4] Otherwise disclosures shall be made as required under paragraphs (b) and (d) of § 226.8 or paragraph (b) of § 226.15. (Bracketed numbers added). There has been a split among the Circuits as to the proper construction of this regulation. The Third Circuit, in Manning v. Princeton Consumer Discount Co., 533 F.2d 102 (3d Cir.), cert. denied, 429 U.S. 865, 97 S.Ct. 173, 50 L.Ed.2d 144 (1976), found that a transaction in which an automobile dealer arranged a loan for a customer with a finance company was in reality a “credit sale,” and that both the dealer and the finance company were “creditors” within the meaning of the Act and the Regulation. It held, however, that the duty of each to make the required disclosures, and the liability for failure to do so, was controlled by section 226.6(d). It noted that the first sentence of that section would require “each creditor” to make “those disclosures . which are within his knowledge and the purview of his relationship with the customer,” but concluded that the more specific language of the third sentence controls whenever a “seller . . . arranges credit.” By its terms, the Manning court held, the third sentence limits both the duty and the liability to the seller alone. Three other courts have reached the opposite conclusion. In Hinkle v. Rock Springs Nat’l Bank, 538 F.2d 295 (10th Cir. 1976), the Tenth Circuit held that both a seller and the lender with whom the seller arranged consumer financing were liable for the failure to make required disclosures. It cited section 226.6(d) for the proposition “that when there are several ‘creditors’ they each" }, { "docid": "473341", "title": "", "text": "under paragraphs (b) and (d) of § 226.8 or paragraph (b) of § 226.15. In Manning v. Princeton Consumer Discount Co., 533 F.2d 102 (3d Cir. 1976), the Court of Appeals for the Third Circuit held that, pursuant to § 226.6(d), a bank, as extender of credit, does not have any duty to disclose if the transaction involves a seller who is the arranger of credit. The court noted that “[t]he regulation requires that if the seller extends or arranges credit . . . then it must make the disclosures required under (b) and (c) of Regulation § 226.8.” Manning, 533 F.2d at 105. The court then stated: The concluding sentence of 12 C.F.R. § 226.6(d) reads: “Otherwise disclosures shall be made as required under paragraphs (b) and (d) of § 226.8.” The language is far from clear, but we interpret the last sentence to mean that “otherwise” applies when the seller does not extend or arrange for credit. In that instance the lender or other creditor must make the disclosures of Regulation paragraphs (b) and (d) pertaining to credit loans .... In short, we hold that if the transaction is one in which the seller arranges credit, the obligation of disclosure is placed upon him by the third sentence of Regulation § 226.6(d). In that factual situation the specific direction of the third sentence prevails over the general language limiting the scope of disclosure to items within the creditor’s knowledge and the purview of his relationship with the customer. Manning, 533 F.2d at 105 (emphasis added). The Court of Appeals for the Tenth Circuit read § 226.6(d) differently. In Hinkle v. Rock Springs National Bank, 538 F.2d 295, 297 (10th Cir. 1976), the court asserted that “Regulation Z [12 C.F.R. § 226.6(d)] contemplates that when there are several ‘creditors’ they each shall be responsible for disclosures which are within the scope of its relationship with the consumer and of data they possess.” Applying this Regulation, the court held both the seller, which was the arranger of credit, and the bank, which was the extender of credit, liable for certain" }, { "docid": "16447521", "title": "", "text": "finance company were “creditors” within the meaning of the Act and the Regulation. It held, however, that the duty of each to make the required disclosures, and the liability for failure to do so, was controlled by section 226.6(d). It noted that the first sentence of that section would require “each creditor” to make “those disclosures . which are within his knowledge and the purview of his relationship with the customer,” but concluded that the more specific language of the third sentence controls whenever a “seller . . . arranges credit.” By its terms, the Manning court held, the third sentence limits both the duty and the liability to the seller alone. Three other courts have reached the opposite conclusion. In Hinkle v. Rock Springs Nat’l Bank, 538 F.2d 295 (10th Cir. 1976), the Tenth Circuit held that both a seller and the lender with whom the seller arranged consumer financing were liable for the failure to make required disclosures. It cited section 226.6(d) for the proposition “that when there are several ‘creditors’ they each shall be responsible for disclosures which are within the scope of its relationship with the consumer. . and of the data they possess.” 538 F.2d at 297. The Hinkle court thus relied upon the first, sentence of section 226.6(d) in assessing liability even though a seller had arranged the extension of credit. The view of the Hinkle court was elaborated and adopted in preference to that of Manning by district courts in Williams v. Bill Watson Ford, Inc., 423 F.Supp. 345, 354-357 (E.D.La.1976) and a similar result reached in Lipscomb v. Chrysler Credit, No. C72-792 (N.D.Ohio 1973). We concur with the analysis presented in Hinkle. We are loathe in the absence of clearly compelling language to adopt a reading that would permit a finance company to escape all liability for nondisclosures by enlisting a seller of goods to arrange for an extension of credit. We are particularly reluctant to do so here because of the close ly integrated relationship of Center and Franklin. To the extent that the finance company influences the conduct of the" }, { "docid": "473336", "title": "", "text": "it is a mere subsequent assignee. Courts have looked to the relationship between the seller and the bank or finance company which is assigned the contract to determine whether such bank or finance company is a creditor or a subsequent assignee. See, e. g., Price v. Franklin Investment Co., 574 F.2d 594 (D.C. Cir. 1978); Meyers v. Clearview Dodge Sales, Inc., 539 F.2d 511 (5th Cir. 1976); Hinkle v. Rock Springs National Bank, 538 F.2d 295 (10th Cir. 1976); Joseph v. Norman’s Health Club, Inc., 532 F.2d 86 (8th Cir. 1976); Poirrier v. Charlie’s Chevrolet, Inc., 442 F.Supp. 894 (E.D.Mo.1978); Cenance v. Bohn Ford, Inc., 430 F.Supp. 1064 (E.D.La.1977); Williams v. Bill Watson Ford, Inc., 423 F.Supp. 345 (E.D.La.1976); Lauletta v. Valley Buick, Inc., 421 F.Supp. 1036 (W.D.Pa.1976); Kriger v. European Health Spa, Inc., 363 F.Supp. 334 (E.D.Wis.1973); Garza v. Chicago Health Clubs, Inc., 347 F.Supp. 955 (N.D.Ill.1972). Considering all of the circumstances in the instant case, this Court concludes that defendant Forsyth Bank was an extender-of credit and Quality Distributors was an arranger of credit in the transaction involving the plaintiff. In May, 1976, the Bank (by Baird Sills) and Edwards (as J. W. Cartwright for Quality Distributors) entered into an agreement entitled “Dealer Reserve Agreement — Appliances and Equipment.” The agreement indicated that Quality “desire[d] to offer to transfer and assign to you [the Bank] from time to time . conditional sale contracts, notes, . and other contracts . . .acquired by us from retail purchasers . of appliances, equipment, and other personal property.” The agreement listed the rights and duties of the parties in the transfer of contracts. For example, the agreement-stated that the Bank had “no obligation to accept any of the contracts except those which [were] acceptable to [it] . . . in all respects.” The amount to be paid to Quality for transferring the contracts would be “such sums as we may agree upon from time to time.” Furthermore, the “finance charges contained in the contracts [would] be computed in accordance with charts provided by . [the Bank].” The agreement made clear that the" }, { "docid": "18668160", "title": "", "text": "the creditors. However, the result of this effort is far from clear. Several cases have considered this question and fall into three categories. The first category includes the numerous cases which have imposed liability on multiple creditors without a consideration of this regulation. This includes Meyers, supra. The second category is a minority view represented by Manning v. Princeton Consumer Discount Company, 533 F.2d 102 (3d Cir. 1976), affirming 397 F.Supp. 504 (E.D.Pa.1975), on reconsideration of 390 F.Supp. 320 (E.D.Pa.1975), cert. denied 429 U.S. 865, 97 S.Ct. 173, 50 L.Ed.2d 144, rehearing denied 429 U.S. 933, 97 S.Ct. 342, 50 L.Ed.2d 303; Boggan v. Euclid National Bank, CCH Consumer Credit Guide ¶ 98674 (N.D.Ohio 1974). The third category is the majority view represented by the following cases: Hinkle v. Rock Springs National Bank, 538 F.2d 295 (10th Cir. 1976); Price v. Franklin Investment Company, 187 U.S.App.D.C. 383, 574 F.2d 594 (1978); Smith v. Lewis Ford, Inc., 456 F.Supp. 1138 (W.D.Tenn.1978); Lipscomb v. Chrysler Credit, No. C-792 (N.D. Ohio 1973); Williams v. Bill Watson Ford, 423 F.Supp. 345 (E.D.La.1976). The courts deciding the eases listed in the last two categories refused to follow the first decisions on the basis that the failure to consider the regulatory language on point prevented the cases from having any real authority. The district court in Williams did not consider the Meyers decision of the Fifth Circuit as binding precedent: While we recognize the substantial similarities between the instant case and Meyers, we find that the Meyers case is not controlling of the allocation of liability here because of the provisions of 12 C.F.R. § 226.6(d), a section of Regulation Z, which was not considered by Meyers in this context. This Court does not consider itself bound by Meyers, authored by the undersigned, as to an issue which the Fifth Circuit did not consider and which was not presented for that Court’s decision. The leading case interpreting § 226.6(d) is Manning. The Third Circuit held: In short, we hold that if the transaction is one in which the seller arranges credit, the obligation of disclosure is" }, { "docid": "16447519", "title": "", "text": "defendants is sufficiently close to indicate that the seller was acting as the agent or “conduit” of the assignee in arranging the loan. “Where a finance company becomes an integral part of the seller’s financing program, the financing company must bear full responsibility for all disclosure required under the Truth in Lending Act,” Joseph, 532 F.2d at 92. The closeness of the parties here is strengthened by Franklin’s floor plan financing of Center’s cars and the provision for consignment of some cars (App. 286-87). We do not, however, go quite so far as the Eighth Circuit in Joseph. The conclusion that Franklin was a “creditor” does not in our view require that it be held liable for all deficiencies in disclosure. Most of the courts that have considered the liability of multiple creditors under the Act have found them liable without fully addressing the effect of Regulation Z, § 226.6(d). That section provides: If there is more than one creditor or lessor in a transaction, each creditor or lessor shall be clearly identified and shall be responsible for making only those disclosures required by this Part which are within his knowledge and the purview of his relationship with the customer or lessee. [2] If two or more creditors or lessors make a joint disclosure, each creditor or lessor shall be clearly identified. [3] The disclosures required under paragraphs (b) and (c) of § 226.8 shall be made by the seller if he extends or arranges for the extension of credit. [4] Otherwise disclosures shall be made as required under paragraphs (b) and (d) of § 226.8 or paragraph (b) of § 226.15. (Bracketed numbers added). There has been a split among the Circuits as to the proper construction of this regulation. The Third Circuit, in Manning v. Princeton Consumer Discount Co., 533 F.2d 102 (3d Cir.), cert. denied, 429 U.S. 865, 97 S.Ct. 173, 50 L.Ed.2d 144 (1976), found that a transaction in which an automobile dealer arranged a loan for a customer with a finance company was in reality a “credit sale,” and that both the dealer and the" }, { "docid": "16447522", "title": "", "text": "shall be responsible for disclosures which are within the scope of its relationship with the consumer. . and of the data they possess.” 538 F.2d at 297. The Hinkle court thus relied upon the first, sentence of section 226.6(d) in assessing liability even though a seller had arranged the extension of credit. The view of the Hinkle court was elaborated and adopted in preference to that of Manning by district courts in Williams v. Bill Watson Ford, Inc., 423 F.Supp. 345, 354-357 (E.D.La.1976) and a similar result reached in Lipscomb v. Chrysler Credit, No. C72-792 (N.D.Ohio 1973). We concur with the analysis presented in Hinkle. We are loathe in the absence of clearly compelling language to adopt a reading that would permit a finance company to escape all liability for nondisclosures by enlisting a seller of goods to arrange for an extension of credit. We are particularly reluctant to do so here because of the close ly integrated relationship of Center and Franklin. To the extent that the finance company influences the conduct of the seller, the deterrent purpose of the liability provisions of the Act is advanced by interpreting the first sentence of section 226.6(d) to control liability for failure to make required disclosures. The limitation of “responsibility]” in the first sentence to disclosure of matters “within [the creditors’] knowledge and the purview of his relationship with the customer” confines multiple creditors’ potential liability to nondisclo-sures for which they are justifiably held responsible, and is the interpretation most consistent with sections 121(a) and 130(a) and the general purposes of the Act. The “knowledge” and “purview” tests are not defined in the Act or Regulation Z. They appear to have independent significance primarily in cases involving co-extenders with differing relationships to the customer. In a “conduit” case like the present one, these two tests overlap to a considerable degree. The matters the Williams court found not to meet these tests were minor matters collateral to the contract and solely within the control of the seller. In contrast, the matters for which the finance company was held liable in Hinkle were" }, { "docid": "473343", "title": "", "text": "nondisclosures. The court ignored the last two sentences of § 226.6(d). Recently, the Court of Appeals for the District of Columbia Circuit was faced with the issue of liability among multiple creditors. In Price v. Franklin Investment Co., 574 F.2d 594, 601-02 (D.C. Cir. 1978), the court rejected the Manning approach and agreed with Hinkle, stating that: [w]e are loathe in the absence of clearly compelling language to adopt a reading that would permit a finance company to escape all liability for nondisclosures by enlisting a seller of goods to arrange for an extension of credit. ... To the extent that the finance company influences the conduct of the seller, the deterrent purpose of the liability provisions of the Act is advanced by interpreting the first sentence of section 226.6(d) to control liability for failure to make required disclosures. The limitation of “responsib[ility]” in the first sentence to disclosure of matters “within [the creditors’] knowledge and the purview of his relationship with the customer” confines multiple creditors’ potential liability to non-disclosures for which they are justifiably held responsible, and is the interpretation most consistent with sections 121(a) and 130(a) and the general purposes of the Act. This Court neither totally rejects nor accepts the Manning and Hinkle/Price decisions. The first sentence and the last two sentences of § 226.6(d) are not necessarily mutually exclusive, and the section can be read to give effect to all sentences. The approach this Court will take is a modification and combination of the Manning and Price cases. The third sentence of § 226.6(d) cannot be ignored, it being very specific: “The disclosures required under paragraphs (b) and (c) of § 226.8 shall be made by the seller if he extends or arranges for the extension of credit.” Paragraph (c) of § 226.8 (which incorporates (b) by reference) is applicable in the case of a credit sale, and “credit sale” is defined in 15 U.S.C. § 1602(g) as “any sale with respect to which credit is extended or arranged by the seller.” The intent of the Regulation is clear: whenever the seller extends or arranges" }, { "docid": "473339", "title": "", "text": "creditors are the seller, as arranger of credit, and a bank, as extender of credit, what duty of disclosure and liability for nondisclosure do the seller and the bank have? The courts have differed in their answers to this issue. Some courts, upon finding a bank or finance company to be an extender of credit (and hence a creditor) in a multiple-creditor transaction, have held such extender of credit to be fully liable for failing to make any disclosure required by the Act. That is, the mere fact of being found to be a creditor made the finance company liable for nondisclosures. Usually, the court would find the extender of credit jointly liable with the seller, as arranger of credit, for all nondisclosures. See, e. g., Meyers v. Clear- view Dodge Sales, Inc., 539 F.2d 511, 515 (5th Cir. 1976); Joseph v. Norman’s Health Club, Inc., 532 F.2d 86 (8th Cir. 1976); Cenance v. Bohn Ford, Inc., 430 F.Supp. 1064, 1070 (E.D.La.1977); Philbeck v. Timmers' Chevrolet, Inc., 361 F.Supp. 1255 (N.D.Ga.1973), rev’d on other grounds, 499 F.2d 971 (5th Cir. 1974). Other courts have not been so quick to impose liability merely because a party is labeled a creditor. These courts have looked to section 226.6(d) of Regulation Z, 12 C.F.R. § 226.6(d), to determine the duty of disclosure in situations where there are multiple creditors. However, there is a split of authority as to the proper application and interpretation of § 226.6(d). Section 226.6(d) of Regulation Z provides: If there is more than one creditor or lessor in a transaction, each creditor or lessor shall be clearly identified and shall be responsible for making only those disclosures required by this Part which are within his knowledge and the purview of his relationship with the customer or lessee. If two or more creditors or lessors make a joint disclosure, each creditor or lessor shall be'clearly identified. The disclosures required under paragraphs (b) and (c) of § 226.8 shall be made by the seller if he extends or arranges for the extension of credit. Otherwise disclosures shall be made as required" }, { "docid": "18002384", "title": "", "text": "on the fee application. 7. The Debtor shall file any Amended Plan which she deems is necessary and appropriate in light of this Opinion to achieve confirmation of a Chapter 13 Plan of Reorganization on or before December 9, 1991. 8. The confirmation hearing in the Debtor’s main case remains scheduled on THURSDAY, DECEMBER 19, 1991, AT 9:30 A.M. and shall be held in Courtroom No. 2 (Room 3718), United States Court House, 601 Market Street, Philadelphia, PA 19106. . We note that the contract in the transaction involving Union was a HIFA contract between the contractor and the Debtor, which was assigned to Union by the contractor. This is the form which we ultimately hold that the instant transaction was required to take under the dictates of the HIFA. . The effect of this provision was subsequently superseded by the federal HDC Reg. . Prior to an amendment to the TILA, effective in 1982, a \"credit sale” under the TILA included a transaction in which credit was \"arranged by the seller.” 15 U.S.C. § 1602(g). In Manning v. Princeton Consumer Discount Co., 533 F.2d 102, 104-05 (3d Cir.), cert. denied, 429 U.S. 865, 97 S.Ct. 173, 50 L.Ed.2d 144 (1976), an automobile dealer was held liable for failing to provide \"credit sale” disclosures in a credit transaction which it arranged for a loan company. The court refused, however, to hold the loan company liable for the TILA violations in issue, reasoning that former 12 C.F.R. § 226.6(d), relating to \"multiple creditors,” rendered only the seller liable. But see, e.g., Price v. Franklin Investment Co., 574 F.2d 594, 599-602 (D.C.Cir.1978) (both loan company and seller held liable in \"credit arrangement” situation). The present TILA definition of \"credit sale,” 15 U.S.C. § 1602(g), omits any reference to arrangement of credit by the seller. That aspect of the Manning holding which confined liability to the seller has also been rendered passe by amendments to the TILA. It is now required, as to \"multiple creditors,” that [i]f a transaction involves more than one creditor, only one set of disclosures shall be given and" }, { "docid": "16594554", "title": "", "text": "violated by a failure to identify the Bank as a creditor. Regulation Z, 12 C.F.R. § 226.-6(d) requires in part: If there is more than one creditor or lessor in a transaction, each creditor or lessor shall be clearly identified .... In Milhollin v. Ford Motor Credit Co., 9 Cir., 588 F.2d 753 at 757, we held that the following statement was sufficient to disclose Ford Motor Credit’s exact role in the transaction: The foregoing contract hereby is accepted by the Seller and assigned to Ford Motor Credit Company in accordance with the terms of the assignment set forth on the reverse side hereof. Seller _ By _ Title _ The use of the word “creditor” was held not to be required. Id.; accord, Sharp v. Ford Motor Credit Co., 615 F.2d 423, 426 (7th Cir. 1980); Augusta v. Marshall Motor Co., 614 F.2d 1085, 1086 (6th Cir. 1979). The Supreme Court in Ford Motor Credit Company v. Cenance, 101 S.Ct. at 2241-42, held that a statement notifying the buyer of an assignment to Ford Motor Credit Company was sufficient disclosure. In the present case, however, the only identification of the Bank on the face of the contracts was the Bank’s logo and name in the upper left corner and the provision under the “Terms of Agreement” that stated: A. PAYMENT: Buyer promises to pay Seller at the_Branch of Bank of America National Trust and Savings at -, California, the Total of Payments in the manner specified in Item 11. This statement was not a-sufficient revelation of the Bank’s role in the transaction. There is no indication that the contract was to be assigned to the Bank, or of any participation by the Bank, other than as a place where the seller was to be paid. We conclude that the statement was insufficient to identify clearly the Bank as a creditor and therefore did not comply with 12 C.F.R. § 226.6(d). It is implicit in the opinion of the Court in Cenance that a failure to clearly identify each creditor is a failure to disclose which imposes liability under the" }, { "docid": "16594552", "title": "", "text": "held that both the seller and the financial institution are creditors for purposes of the TILA. The rationale for finding creditor status has been expressed in two ways. First, as developed in Meyers v. Clearview Dodge Sales, Inc., 539 F.2d 511, 515 (5th Cir. 1976), cert. denied, 431 U.S. 929, 97 S.Ct. 2633, 53 L.Ed.2d 245 (1977), is the theory that there are multiple original creditors, a credit extender and a credit arranger. Second, as set forth in Joseph v. Norman’s Health Club, Inc., 532 F.2d 86, 91-92 (8th Cir. 1976), is the theory that the seller acts as a “conduit” for the finance company. In reality, these two theories seem to be different ways of stating the same proposition— that in transactions such as the one in the present case, both the seller and the finance company are creditors for purposes of the TILA. The Supreme Court recently addressed this issue in a case involving an automobile dealer and Ford Motor Credit Company, to whom sales contracts were assigned in circumstances virtually the same as in the instant case. The Court stated: Regulation Z, promulgated pursuant to the Act, defines the term consistently with the above: “ ‘Creditor’ means a person who in the ordinary course of business regularly extends or arranges for the extension of consumer credit .... ” 12 CFR § 226.2(s). On the facts of this case, the above definition easily encompasses both the dealers and FMCC. Each dealer arranged for the extension of credit but FMCC actually extended the credit, (footnote omitted) Ford Motor Credit Company v. Cenance, 452 U.S. 155, 101 S.Ct. 2239, 2241, 68 L.Ed.2d 744 (1981). See also Price v. Franklin Investment Co., Inc., 574 F.2d 594, 601 (D.C.Cir.1978); Hinkle v. Rock Springs National Bank, 538 F.2d 295, 297 (10th Cir. 1976); Mirabal v. General Motors Acceptance Corp., 537 F.2d 871, 874 n.1 (7th Cir. 1976). The position of the Bank in this case is virtually identical to that of FMCC in the Cenance case. We therefore conclude that the Bank is a creditor. II We next consider whether the TILA was" }, { "docid": "16594560", "title": "", "text": "We adopt the conclusion of several other circuits that a qualified responsibility for inadequate disclosure is placed on each creditor by the provision that “each creditor or lessor shall be clearly identified and shall be responsible for making only those disclosures ... which are within his knowledge and the purview of his relationship with the customer or lessee.” 12 C.F.R. § 226.6(d). See Jennings v. Edwards, 454 F.Supp. 770, 775 (M.D.N.C;1978), sum. aff’d., 598 F.2d 614 (4th Cir. 1979); Price v. Franklin Investment Co., Inc., 574 F.2d 594, 601-02 (D.C.Cir.1978); Hinkle v. Rock Springs National Bank, 538 F.2d 295, 296-97 (10th Cir. 1976); Smith v. Lewis Ford, Inc., 456 F.Supp. 1138, 1140-41 (W.D.Tenn.1978). Under this regulation, each defendant is liable for failing to disclose any information which constitutes a required disclosure and which is within the “knowledge and purview of the creditor.” The fact that the Bank is the extender of the credit in both cases is clearly within the knowledge and purview of both the Bank and the automobile dealers. The liability then falls upon each as a creditor. We find no merit in the Bank’s contention that a finding of liability threatens its due process rights because of vagueness or lack of specificity in the statute and regulations. Our interpretation of the statute and the applicable regulations is consistent with their plain language. The definition of a creditor and the provisions of allocation of responsibility are not so vague that to find a TILA violation would infringe upon the defendants’ due process rights. Our decision was reasonably foreseeable in light of the language of the statute and regulations. It is settled that in the appellate review of judicial proceedings “[i]f the decision below is correct it must be affirmed, although the lower court relied upon a wrong ground or gave a wrong reason.” Helvering v. Gowran, 302 U.S. 238, 245, 58 S.Ct. 154,158, 82 L.Ed. 224 (1937); Thomas P. Gonzales Corp. v. Consejo Nacional, etc., 614 F.2d 1247, 1256 (9th Cir. 1980). We find that the TILA was violated, and that liability in each case is appropriately imposed" }, { "docid": "18668159", "title": "", "text": "reasoning of the Court in Meyers need not be rehashed here to demonstrate the existence of a violation. Defendant seeks to shield itself from liability by the provision of Regulation Z, 12 C.F.R. § 226.6(d): Multiple creditors or lessors; joint disclosure. If there is more than one creditor . . . in a transaction, each creditor . . . shall be clearly identified and shall be responsible for making only those disclosures required by this part which are within his knowledge and the purview of his relationship with the customer. ... If two or more creditors . . . make a joint disclosure, each creditor . . . shall be clearly identified. The disclosures required un der paragraphs (b) and (c) of § 226.8 shall be made by the seller if he extends or arranges for the extension of credit. Otherwise disclosures shall be made as required under paragraphs (b) and (d) of § 226.8, or paragraph (b) of § 226.15. The regulation is an apparent attempt to divide the responsibility to make disclosures among the creditors. However, the result of this effort is far from clear. Several cases have considered this question and fall into three categories. The first category includes the numerous cases which have imposed liability on multiple creditors without a consideration of this regulation. This includes Meyers, supra. The second category is a minority view represented by Manning v. Princeton Consumer Discount Company, 533 F.2d 102 (3d Cir. 1976), affirming 397 F.Supp. 504 (E.D.Pa.1975), on reconsideration of 390 F.Supp. 320 (E.D.Pa.1975), cert. denied 429 U.S. 865, 97 S.Ct. 173, 50 L.Ed.2d 144, rehearing denied 429 U.S. 933, 97 S.Ct. 342, 50 L.Ed.2d 303; Boggan v. Euclid National Bank, CCH Consumer Credit Guide ¶ 98674 (N.D.Ohio 1974). The third category is the majority view represented by the following cases: Hinkle v. Rock Springs National Bank, 538 F.2d 295 (10th Cir. 1976); Price v. Franklin Investment Company, 187 U.S.App.D.C. 383, 574 F.2d 594 (1978); Smith v. Lewis Ford, Inc., 456 F.Supp. 1138 (W.D.Tenn.1978); Lipscomb v. Chrysler Credit, No. C-792 (N.D. Ohio 1973); Williams v. Bill Watson Ford, 423" }, { "docid": "473335", "title": "", "text": "“creditor” means “a person who in the ordinary course of business regularly extends or arranges for the extension of consumer credit, or offers to extend or arrange for the extension of such credit . . ..” Regulation Z, 12 C.F.R. § 226.2(s) (1977) (emphasis added). Courts, in applying this definition, have labeled parties in some transactions as arrangers of credit and as extenders of credit. In a typical situation, the arranger is a seller of merchandise or services who arranges for credit to be extended to its customer, and the extender is a bank or finance company which actually extends the credit to the customer. See Meyers v. Clearview Dodge Sales, Inc., 539 F.2d 511, 515 (5th Cir. 1976); Joseph v. Norman’s Health Club, Inc., 532 F.2d 86, 91 (8th Cir. 1976); Lauletta v. Valley Buick, Inc., 421 F.Supp. 1036, 1038-39 (W.D.Pa.1976). In these situations, the seller often assigns the contract it has with its customer to a bank or finance company. An assignment occurred in the present case, and defendant Forsyth Bank argues that it is a mere subsequent assignee. Courts have looked to the relationship between the seller and the bank or finance company which is assigned the contract to determine whether such bank or finance company is a creditor or a subsequent assignee. See, e. g., Price v. Franklin Investment Co., 574 F.2d 594 (D.C. Cir. 1978); Meyers v. Clearview Dodge Sales, Inc., 539 F.2d 511 (5th Cir. 1976); Hinkle v. Rock Springs National Bank, 538 F.2d 295 (10th Cir. 1976); Joseph v. Norman’s Health Club, Inc., 532 F.2d 86 (8th Cir. 1976); Poirrier v. Charlie’s Chevrolet, Inc., 442 F.Supp. 894 (E.D.Mo.1978); Cenance v. Bohn Ford, Inc., 430 F.Supp. 1064 (E.D.La.1977); Williams v. Bill Watson Ford, Inc., 423 F.Supp. 345 (E.D.La.1976); Lauletta v. Valley Buick, Inc., 421 F.Supp. 1036 (W.D.Pa.1976); Kriger v. European Health Spa, Inc., 363 F.Supp. 334 (E.D.Wis.1973); Garza v. Chicago Health Clubs, Inc., 347 F.Supp. 955 (N.D.Ill.1972). Considering all of the circumstances in the instant case, this Court concludes that defendant Forsyth Bank was an extender-of credit and Quality Distributors was an arranger of" }, { "docid": "18002385", "title": "", "text": "1602(g). In Manning v. Princeton Consumer Discount Co., 533 F.2d 102, 104-05 (3d Cir.), cert. denied, 429 U.S. 865, 97 S.Ct. 173, 50 L.Ed.2d 144 (1976), an automobile dealer was held liable for failing to provide \"credit sale” disclosures in a credit transaction which it arranged for a loan company. The court refused, however, to hold the loan company liable for the TILA violations in issue, reasoning that former 12 C.F.R. § 226.6(d), relating to \"multiple creditors,” rendered only the seller liable. But see, e.g., Price v. Franklin Investment Co., 574 F.2d 594, 599-602 (D.C.Cir.1978) (both loan company and seller held liable in \"credit arrangement” situation). The present TILA definition of \"credit sale,” 15 U.S.C. § 1602(g), omits any reference to arrangement of credit by the seller. That aspect of the Manning holding which confined liability to the seller has also been rendered passe by amendments to the TILA. It is now required, as to \"multiple creditors,” that [i]f a transaction involves more than one creditor, only one set of disclosures shall be given and the creditors shall agree among themselves which creditor must comply with the requirements that this regulation imposes on any or all of them. 12 C.F.R. § 226.17(d). Clearly, as between Gen-dleman, who provided no disclosures whatsoever to the Debtor, and Courtesy, which provided a full set of disclosures to her, there was at least a tacit agreement that Courtesy would provide the requisite TILA disclosures and is therefore liable, under the current Regulations, if the disclosures are errant. . Ironically, the state law claims which Judge Fox declined to address in Steinbrecher centered upon whether a \"body-dragging\" transaction violated the HIFA. See 110 B.R. at 157-58, 159. . In Milbourne, we, with supporting citations, rejected the implicit holding in Joyce, 41 B.R. at 252, which suggests that a creditor’s failure to disclose less expensive financing alternatives could never be violative of UDAP." }, { "docid": "16594559", "title": "", "text": "not specifically required by the TILA. Instead, deference must be granted to the view of the Federal Reserve Board that specific disclosure of an acceleration provision is required only if the creditor’s policy for refunding unearned finance charges in the case of acceleration differs from the stated refund policy with respect to voluntary prepayment. The district court made no findings regarding the rebate provision for voluntary prepayment in these agreements. However, because we affirm on other grounds, as hereinafter discussed, we need not remand for a determination of whether, under Milhollin, a basis exists to impose liability. VI We turn now to the issue of allocation of responsibility for disclosures. The creditor’s responsibility for making required disclosures is broadly stated in 15 U.S.C. § 1631(a): Each creditor shall disclose clearly and conspicuously, in accordance with the regulations of the Board, to each person to whom consumer credit is extended, the information required under this part or part D of this subchapter. 12 C.F.R. § 226.6(d) explains the application of this statutory responsibility to multiple creditors. We adopt the conclusion of several other circuits that a qualified responsibility for inadequate disclosure is placed on each creditor by the provision that “each creditor or lessor shall be clearly identified and shall be responsible for making only those disclosures ... which are within his knowledge and the purview of his relationship with the customer or lessee.” 12 C.F.R. § 226.6(d). See Jennings v. Edwards, 454 F.Supp. 770, 775 (M.D.N.C;1978), sum. aff’d., 598 F.2d 614 (4th Cir. 1979); Price v. Franklin Investment Co., Inc., 574 F.2d 594, 601-02 (D.C.Cir.1978); Hinkle v. Rock Springs National Bank, 538 F.2d 295, 296-97 (10th Cir. 1976); Smith v. Lewis Ford, Inc., 456 F.Supp. 1138, 1140-41 (W.D.Tenn.1978). Under this regulation, each defendant is liable for failing to disclose any information which constitutes a required disclosure and which is within the “knowledge and purview of the creditor.” The fact that the Bank is the extender of the credit in both cases is clearly within the knowledge and purview of both the Bank and the automobile dealers. The liability then falls" }, { "docid": "473340", "title": "", "text": "499 F.2d 971 (5th Cir. 1974). Other courts have not been so quick to impose liability merely because a party is labeled a creditor. These courts have looked to section 226.6(d) of Regulation Z, 12 C.F.R. § 226.6(d), to determine the duty of disclosure in situations where there are multiple creditors. However, there is a split of authority as to the proper application and interpretation of § 226.6(d). Section 226.6(d) of Regulation Z provides: If there is more than one creditor or lessor in a transaction, each creditor or lessor shall be clearly identified and shall be responsible for making only those disclosures required by this Part which are within his knowledge and the purview of his relationship with the customer or lessee. If two or more creditors or lessors make a joint disclosure, each creditor or lessor shall be'clearly identified. The disclosures required under paragraphs (b) and (c) of § 226.8 shall be made by the seller if he extends or arranges for the extension of credit. Otherwise disclosures shall be made as required under paragraphs (b) and (d) of § 226.8 or paragraph (b) of § 226.15. In Manning v. Princeton Consumer Discount Co., 533 F.2d 102 (3d Cir. 1976), the Court of Appeals for the Third Circuit held that, pursuant to § 226.6(d), a bank, as extender of credit, does not have any duty to disclose if the transaction involves a seller who is the arranger of credit. The court noted that “[t]he regulation requires that if the seller extends or arranges credit . . . then it must make the disclosures required under (b) and (c) of Regulation § 226.8.” Manning, 533 F.2d at 105. The court then stated: The concluding sentence of 12 C.F.R. § 226.6(d) reads: “Otherwise disclosures shall be made as required under paragraphs (b) and (d) of § 226.8.” The language is far from clear, but we interpret the last sentence to mean that “otherwise” applies when the seller does not extend or arrange for credit. In that instance the lender or other creditor must make the disclosures of Regulation paragraphs (b)" } ]

[ { "docid": "18718759", "title": "", "text": "the adjudicator of a common law cause of action.” Id. Although we hesitate to sanction any procedure that might overstep the bankruptcy court’s jurisdiction, we see no evidence in section 157(c)(2) to suggest altering the traditional rule that consent can be both express and implied. In the Matter of Jan Wiktor Kakolewski, 29 B.R. 572 (Bankr.W.D.Mo.1983); In re Depo, supra, 40 B.R. 537; 2 Collier on Bankruptcy ¶ 23.08, 532-60 (14th ed. 1976). B. Right to Jury Trial The Special Master also recommended that we deny HDC’s demand for a jury trial. The Special Master found that, because HDC had impliedly consented to the bankruptcy court’s jurisdiction, HDC had no constitutional right to a jury trial in an Article III court. We note first that the parties have proceeded to this point under the mistaken assumption that a jury trial is unavailable in the bankruptcy court. They have apparently overlooked rule 9015 of the Rules of Bankruptcy Procedure, which govern procedures in the United States Bankruptcy Courts, and which permits the bankruptcy courts to hold jury trials. The advisory committee notes to Rule 9015 confirm this interpretation. The notes speak of “the procedures for requesting trial by jury in a matter [before the] ... bankruptcy court.” Bankr.Rule 9015 advisory committee note. Having concluded that the bankruptcy court may hold a jury trial, it remains for us to consider whether such a trial is appropriate in these circumstances. Section 1480(a) of the Bankruptcy Code, 28 U.S.C. § 1480(a) (1982), is the starting point for this analysis. That section provides, in pertinent part, ... this Chapter and Title 11 do not affect any right to trial by jury, in a case under Title 11 or in a proceeding arising under Title 11 or arising in or related to a case under Title 11, that is provided by any statute in effect on September 30, 1979. 28 U.S.C. § 1480(a) (1982). In other words, a defendant must be afforded a jury trial if it had a right to a jury trial in this kind of action prior to 1979. A three-pronged test controls" } ]

[ { "docid": "18583361", "title": "", "text": "is not to infer that such jury trial is not proper, but rather to allow the issue to be developed in a different why, i.e. by case decision. In re Price-Watson Co., 66 B.R. at 159. In setting forth the effect of the abrogation of BR 9015, the Advisory Committee Note to the 1987 Bankruptcy Rules states as follows: Former Section 1480 of title 28 preserved a right to trial by jury in any case or proceeding under title 11 in which jury trial was provided by statute. Rule 9015 provided the procedure for jury trials in bankruptcy courts. Section 1480 was repealed. Section 1411, added by the 1984 amendments, affords a jury trial only for personal injury or wrongful death claims, which 28 USC § 157(b)(5) requires be tried in the district court. Nevertheless, Rule 9015 has been cited as conferring a right to jury trial in other matters before bankruptcy judges. In light of the clear mandate of 28 USC § 2075 that the “rules shall not abridge, enlarge, or modify any substantive right,” Rule 9015 is abrogated. In the event the courts of appeals or the Supreme Court define a right to jury trial in any bankruptcy matter, a local rule in substantially the form of Rule 9015 can be adopted pending amendment of these rules. Bankruptcy Rule 9015 Advisory Committee Note (1987) (emphasis added). This Court agrees with and adopts the above comment. SEVENTH AMENDMENT Although the Supreme Court has not yet defined a right to a jury trial in any bankruptcy matter (see Katchen v. Landy, 382 U.S. 323, 86 S.Ct. 467, 15 L.Ed.2d 391 (1966)), the Court of Appeals for the Ninth Circuit has recently issued an opinion which sheds some light on the matter. American Universal Insurance Company v. Pugh, 821 F.2d 1352 (9th Cir.1987). In Pugh, the Ninth Circuit held that whenever the underlying claim is equitable in nature, there is no right to a jury trial in the bankruptcy court. The plaintiffs, however, argue that because their complaint seeks an award for damages, this case involves a legal proceeding rather than" }, { "docid": "22978316", "title": "", "text": "that it was implicitly repealed. Jacobs v. O’Bannon (In Re O’Bannon), 49 B.R. 763 (Bkrtcy.N.D.La.1985). The Bankruptcy Rules adopted by Supreme Court order dated April 25, 1983 (post-Marathon) provide in Rule 9015 not only for trial by jury upon timely demand of issues so triable as of right, but also state that “notwithstanding the failure of a party to demand a jury when such a demand might have been made of right, the court on its own initiative may order a trial by jury of any or all issues.” Not only did the Supreme Court adopt these Rules post-Marathon, but the post-Marathon, pre-BAFJA letter of transmittal dated August 9, 1982 from the Advisory Committee on Bankruptcy Rules which had drafted them, to the Committee on Rules of Practice and Procedure of The Judicial Conference of the United States, specifically stated “[t]he rules were drafted to accommodate any future amendments by Congress to the jurisdiction of the bankruptcy courts necessitated by Northern Pipeline Construction Co. v. Marathon Pipeline Co. ...” New bankruptcy rules, proposed but not yet adopted, do not contain such specific jury authorization. It is important to note that Rule 9015 will in effect be repealed if the proposed new Bankruptcy Rules are adopted. Some courts, while not explicitly stating that a bankruptcy judge is not empowered to conduct a jury trial, hold that in a non-core proceeding involving legal issues, it would be impractical to have a bankruptcy judge conduct a full scale jury trial that would be subject to de novo review in the district court. See e.g. Macon Prestressed Concrete Co. v. Duke, 46 B.R. 727, 730 (M.D.Ga.1985); Mohawk Industries, Inc. v. Robinson Industries, Inc., 46 B.R. 464 (D.Mass.1985); Reda Inc. v. Harris Trust & Savings Bank (In Re Reda Inc.), 60 B.R. 178 (Bkrtcy.N.D.Ill.1986); Palmisano v. Briggs (In Re Northern Design Inc.), 53 B.R. 25 (Bkrtcy.Vt.1985); Mauldin v. Peoples Bank of Indianola (In Re Mauldin), 52 B.R. 838 (Bkrtcy.N.D.Miss.1985); Smith-Douglass Inc. v. Smith (In Re Smith-Douglass Inc.), 43 B.R. 616 (Bkrtcy.E.D.N.C.1984). Other courts have held that since a bankruptcy judge is empowered to conduct a" }, { "docid": "18620170", "title": "", "text": "34, 30 Stat. 544, 555. . See 28 U.S.C. § 1471(c) (bankruptcy courts shall exercise all jurisdiction granted by the 1978 Act); see also H.R.Rep. No. 595, 95th Cong., 1st Sess. 12 (1977), reprinted in 1978 U.S.Code Cong. & Admin.News 5787, 5963, 5973 (\"Bankruptcy courts will be required to hold jury trials to adjudicate what are under present law called ‘plenary suits,’ that is, suits that are brought in State or Federal courts other than bankruptcy courts.”); id. at 6400 (the broad grant of jurisdiction to bankruptcy courts allows trial in bankruptcy court of actions that were previously tried in federal or state court). The Supreme Court interpreted section 1480 as providing the bankruptcy court with authority to conduct jury trials. See Marathon Pipe Line Co., 458 U.S. at 55, 102 S.Ct. at 2863. . With the enactment of the 1984 Act, 28 U.S.C. § 1480 was repealed. Some courts continued to find jury trial authority by relying in part on Bankruptcy Rule 9015, which was promulgated in 1983, after the Marathon decision. See Gibson, supra, at 988. Rule 9015 prescribed the procedures for jury trials. However, since it was a procedural rule, and could not create substantive rights, Rule 9015 was abrogated in 1987 to eliminate any confusion about its relevance to jury trials in bankruptcy courts. See 9 Collier on Bankruptcy at 9015-1 (15th ed.) (citing Advisory Committee Note on abrogation of Rule 9015). .See Haden v. Edwards (In re Edwards), 104 B.R. 890, 898 (Bankr.E.D.Tenn.1989). Some bankruptcy courts however, have reconciled this language as not being inconsistent with the bankruptcy court's authority to try jury cases in non-core proceedings. See, e.g., Perino v. Cohen (In Re Cohen), 107 B.R. 453, 455 (S.D.N.Y.1989) (bankruptcy courts exercise judicial authority in core and noncore proceedings); see also Gibson, supra at 1029-30 (courts concluding authority to conduct jury trials exists but declining to exercise that authority absent consent). We need not discuss this problem, since for purposes of the present case Congress has clearly delineated the issue of preferential transfers to be a core proceeding. 28 § 157(b)(2)(F). We thus view" }, { "docid": "1089241", "title": "", "text": "the inference that the Seventh Amendment applied to all legal issues regarding money damages, and that a bankruptcy judge has the implied power to conduct jury trials in all instances except the expressly excluded limited class of contingent tort claims. (See, also In re Leird Church Furniture Mfg. Co., 61 B.R. 444, 14 B.C.D. 571 (E.D.AK 1986)); In re Smith-Douglas, 43 B.R. 616 (Bkrtcy.E.D.NC 1984), and In re Gibbons Construction, Inc., 46 B.R. 193, 12 B.C.D. 463 (D.C.KY 1984). Yet in view of the Amendments to the Bankruptcy Rules, prescribed by the U.S. Supreme Court pursuant to 28 U.S.C. § 2075, (effective August 1, 1987), this Court does not concur with the above cases. The Amendments to the Bankruptcy Rules have abrogated Rule 9015. The Committee Note thereto states: Former section 1480 of title 28 preserved a right to trial by jury in any case or proceeding under title 11 in which jury trial was provided by statute. Rule 9015 provided the procedure for jury trials in bankruptcy courts. Section 1480 was repealed. Section 1411 added by the 1984 amendments affords a jury trial only for personal injury or wrongful death claims, which 28 U.S.C. § 157(b)(5) requires be tried in the district court. Nevertheless, Rule 9015 has been cited as conferring a right to jury trial in other matters before bankruptcy judges. In light of the clear mandate of 28 U.S.C. § 2075 that the “rules shall not abridge, enlarge, or modify any substantive right,” Rule 9015 is abrogated. In the event the courts of appeals or the Supreme Court define a right to jury trial in any bankruptcy matters, a local rule in substantially the form of Rule 9015 can be adopted pending amendment of these rules. In light of this Court’s aforestated determination that it has jurisdiction of this matter but that it has no authority to conduct a jury trial, the issue presented is whether Hall has shown “cause” pursuant to § 362(d)(1) for the Court to relinquish its jurisdiction and allow this claim to be liquidated in state court before a jury. This Court does" }, { "docid": "3697618", "title": "", "text": "governmental in nature and therefore protected. See H.R. No. 1487, 94th Cong., 2d Sess. 17, reprinted, in 1976 U.S.Code Cong. & Admin.News 6604, 6616 (legislative history of FSIA). C. RIGHT TO A JURY TRIAL We turn finally to the defendants’ demand for a jury trial. This presents two thorny issues; whether a defendant has a right to a jury trial where the bankruptcy trustee seeks to avoid transfers of money by the debtor to the defendants and, if the right does exist, whether a bankruptcy court has authority to conduct a jury trial in a core proceeding? A defendant’s right to a jury trial may arise either from the seventh amendment to the United States Constitution or from the statute which authorized the trustee’s suit. In re Graham, 747 F.2d 1383, 1387 (11th Cir.1984); Sibley v. Fulton DeKalb Collection Service, 677 F.2d 830, 832-33 (11th Cir.1982). Because it may be quickly disposed of, we shall first discuss the possibility of a statutory right. The cause of action sued upon by the trustee was brought under 11 U.S.C. Sec. 548(a)(2), the “constructive” fraud provision of the Bankruptcy Code. Section 548(a)(2) does not provide for a jury trial. Section 1480 of Title 28 of the 1978 Bankruptcy Reform Act did provide for jury trials, preserving any right to a trial by jury that existed prior to the enactment of the Act. Section 1480 was repealed, however, by the enactment of Sec. 1411 of the Bankruptcy Amendments and Federal Judgeship Act of 1984 (“BAFJA”). See Committee Note to abrogation of Rule 9015, Proposed Bankruptcy Rules, reprinted in 2 W.H. Drake & A.L. Mullins, Jr., Bankruptcy Practice, Appendix C, AC-178 (1987) (amendments become effective August 1, 1987); In re McLouth Steel Corp., 55 B.R. 357, 362 (E.D.Mich.1985); In re O’Bannon, 49 B.R. 763, 768 and n. 15 (Bankr.M.D.La.1985); King, Jurisdiction and Procedure Under the Bankruptcy Amendments, 38 Vand.L.Rev. 674, 703 (1985). Section 1411 affords jury trials only in personal injury or wrongful death suits. See Committee Notes, supra. This section has prospective effect and does not apply to cases pending on July 10,1984, the" }, { "docid": "6452925", "title": "", "text": "the United States Constitution. In re Chase and Sanborn Corp., 835 F.2d 1341, 1348 (11th Cir.1988); In re Smith, 84 B.R. 175, 177 (Bankr.D.Ariz.1988). Statutory Right to a Jury Trial 28 U.S.C. § 1411, the single statute in effect that addresses the right to a jury trial in proceedings under, arising in, or related to cases under Title 11, preserves this right only in two specific actions: personal injury and wrongful death tort claims. See BANKR.R. 9015, Advisory Committee Note (1987) (“Section 1411, added by the 1984 Amendments, affords a jury trial only for personal injury or wrongful death tort claims ...”). Accordingly, there is no federal statutory authority grant of a right to a jury trial in most bankruptcy and bankruptcy related matters, including this adversary proceeding. Debtor claims that 28 U.S.C. § 1480 is effective and affords it a right to a jury trial in this proceeding. The Court does not agree with Debtor that the statute is still effective. Section 113 of the 1984 Act provided that amendments made to Title 28 of the United States Code by the 1978 Act, including § 1480, would not become effective. Congress inadvertently provided in § 121 of the 1984 Act, however, that these 1978 Act amendments would become effective upon enactment of the 1984 Act. This inconsistency obviously was not intended. The jurisdictional provisions of the 1984 Act clearly were meant to replace, not supplement those in the 1978 Act. Thus, § 113 of the 1984 Amendments, rendering § 1480 ineffective, is to be given precedence over § 121(a) of the 1984 Act. See In re Carter, 759 F.2d 763, 766 (9th Cir.1985) (concluding that § 121 was enacted for the purpose of retroactively extending the transition period); Precon, Inc. v. JRS Realty Trust, 12 BCD 824, 45 B.R. 847 (D.Me.1985). This determination was recognized in the recent abrogation of BANKR.R. 9015. This Rule provided procedures for jury trials in bankruptcy courts, where the right to such trials existed under § 1480. BANKR.R. 9015 was abrogated, according to the Advisory Committee on Bankruptcy Rules of the Judicial Conference, because" }, { "docid": "18583360", "title": "", "text": "or wrongful death claims, which 28 U.S.C. § 157(b)(5) requires to be tried in the district court) (emphasis added). It follows then that “[s]ince § 1411(a) states that it does not affect jury trial rights for personal injury or wrongful death claims, presumably it does affect (and eliminate by exclusion) such rights regarding other claims.” In re O’Bannon, 49 B.R. at 769 (emphasis added). The plaintiffs’ § 523(a)(2)(A) non-dischargeability claims are neither personal injury tort claims, nor claims for wrongful death. Therefore, no statutory authority exists to enable this Court to grant a jury trial. The argument that the bankruptcy court is empowered to conduct a jury trial also requires consideration of the recent abrogation of Bankruptcy Rule 9015. One bankruptcy court, in reference to the abrogation of the rule, stated: [i]t is my understanding that the purpose of [the abrogation] is not to negate such jury trials but to leave to court determination whether a Bankruptcy Court can preside over jury trials under law. In other words the intent in abrogating current Rule 9015, is not to infer that such jury trial is not proper, but rather to allow the issue to be developed in a different why, i.e. by case decision. In re Price-Watson Co., 66 B.R. at 159. In setting forth the effect of the abrogation of BR 9015, the Advisory Committee Note to the 1987 Bankruptcy Rules states as follows: Former Section 1480 of title 28 preserved a right to trial by jury in any case or proceeding under title 11 in which jury trial was provided by statute. Rule 9015 provided the procedure for jury trials in bankruptcy courts. Section 1480 was repealed. Section 1411, added by the 1984 amendments, affords a jury trial only for personal injury or wrongful death claims, which 28 USC § 157(b)(5) requires be tried in the district court. Nevertheless, Rule 9015 has been cited as conferring a right to jury trial in other matters before bankruptcy judges. In light of the clear mandate of 28 USC § 2075 that the “rules shall not abridge, enlarge, or modify any substantive" }, { "docid": "1094422", "title": "", "text": "§ 157(b)(2). Indeed, the proceeding does not involve a substantive right created by the federal bankruptcy law and could have been brought independent of the bankruptcy proceeding and determined according to state law. See Northern Pipeline Construction Co. v. Marathon Pipeline Co., 458 U.S. 50, 92, 102 S.Ct. 2858, 2882, 73 L.Ed.2d 598 (1982). Only to the extent that a recovery is obtained by trustee does this action affect the debtor’s estate. Accordingly, because this is a related non-core proceeding, the bankruptcy court is not empowered to enter a final order in the proceeding. III. As previously stated, defendant MCC has filed a demand for a jury trial in the adversary proceeding. We note first that nothing in the Constitution forbids an Article I federal court (such as bankruptcy) from conducting a jury trial. See Pernell v. Southland Realty Co., 416 U.S. 363, 94 S.Ct. 1723, 40 L.Ed.2d 198 (1974). Indeed, pursuant to rule 9015 of the Rules of Bankruptcy Procedure, the bankruptcy court is empowered to conduct jury trials. See In re Lombard-Wall, Inc., 48 B.R. 986, 992 n. 7 (S.D.N.Y.1985); In re Gibbons Construction, Inc., 46 B.R. 193 (D.Ky.1984); Macon Prestressed Concrete Co. v. Duke, 46 B.R. 727 (M.D.Ga.1985). However, a jury trial in a bankruptcy court concerning a related non-core proceeding would be impracticál and judicially inefficient inasmuch as the jury verdict and resulting judgment would be only advisory in nature and subject to de novo review by the district court. The required de novo review would mandate a second jury trial in the district court if either party objected. Such a cumbersome, time consuming process requiring two jury trials would hardly further the expeditious determination of bankruptcy matters. See Mohawk Industries, Inc. v. Robinson Industries, Inc., 46 B.R. 464, 466 (D.Mass.1985). Judicial economy is served, therefore, by withdrawing reference to the bankruptcy court of related non-core proceedings in which a jury trial will be required. See In re Globe Parcel Service, Inc., 75 B.R. 381 (E.D.Pa.1987); In re Northern Design, Inc., 53 B.R. 25 (Bankr.D.Vt.1985). Thus, in each instance where there appeared a substantial likelihood that" }, { "docid": "18620171", "title": "", "text": "supra, at 988. Rule 9015 prescribed the procedures for jury trials. However, since it was a procedural rule, and could not create substantive rights, Rule 9015 was abrogated in 1987 to eliminate any confusion about its relevance to jury trials in bankruptcy courts. See 9 Collier on Bankruptcy at 9015-1 (15th ed.) (citing Advisory Committee Note on abrogation of Rule 9015). .See Haden v. Edwards (In re Edwards), 104 B.R. 890, 898 (Bankr.E.D.Tenn.1989). Some bankruptcy courts however, have reconciled this language as not being inconsistent with the bankruptcy court's authority to try jury cases in non-core proceedings. See, e.g., Perino v. Cohen (In Re Cohen), 107 B.R. 453, 455 (S.D.N.Y.1989) (bankruptcy courts exercise judicial authority in core and noncore proceedings); see also Gibson, supra at 1029-30 (courts concluding authority to conduct jury trials exists but declining to exercise that authority absent consent). We need not discuss this problem, since for purposes of the present case Congress has clearly delineated the issue of preferential transfers to be a core proceeding. 28 § 157(b)(2)(F). We thus view the issue of the bankruptcy court’s authority to try jury cases in terms of its jurisdiction granted to \"hear and determine” core proceedings. In taking this view, we make no attempt to decide whether Congress may or may not properly define a preferential transfer dispute such as we have here a “core proceeding.” See, e.g., Granfinanciera, 109 S.Ct. at 2800 and n. 16. .This statute provides: (b)(1) Bankruptcy judges may hear and determine all cases under title 11 and all core proceedings arising under title 11 or arising in a case under title 11, referred [by the district court] and may enter appropriate orders and judgments, subject to review under section 158 of this title. * * * (5) The district court shall order that personal injury tort and wrongful death claims shall be tried in the district court in which the bankruptcy case is pending, or in the district court in the district in which the claim arose, as determined by the district court in which the bankruptcy case is pending. (c)(1) A bankruptcy" }, { "docid": "1155909", "title": "", "text": "Rule, contains no indication that the bankruptcy court’s exclusive power to hold jury trials in cases and proceedings is abridged or curtailed by either Marathon or the Emergency Rule. Indeed, the Second Circuit articulated that the Bankruptcy Rules were promulgated with full awareness of Marathon and the Emergency Rule and that “these Bankruptcy Rules can be presumed to be constitutional.” Salomon v. Kaiser, 722 F.2d 1574, 1579 (2nd Cir.1983). Because of obvious conflicts between the Emergency Rule and the Bankruptcy Rules regarding the authority to conduct jury trials and the standard of review on appeal, it was held that the local Emergency Rule must yield to the Bankruptcy Rules. See Young v. Saker, 37 B.R. 802 (Bankr.S.D.N.Y.1984); and Nashville City Bank & Trust Co. v. Armstrong, 35 B.R. 556 (Bkrtcy.M.D.Tenn.1983). Cf. Terry v. Proehl, 36 B.R. 36, 12 B.C.D. 321 (D.W.D.Va.1984). Referring to the conflict between the rules the Third Circuit held in In Re Morrissey, 717 F.2d 100 (3rd Cir.1983), that “[S]uch local rules are clearly subordinate to, and may not be inconsistent with the national rules.” Questions arise whether Rule 9015 was adopted in contemplation of the Bankruptcy Judges being afforded Article III status by Congress in solution to the Marathon problem. This position has been publicly stated by at least one member of the Rules Committee. In the new legislation, Congress failed to resolve the authority of bankruptcy judges to conduct jury trials although the matter was repeatedly drawn to the attention of the judiciary committees and their counsel. The Bankruptcy Amendments and Federal Judgeship Act of 1984 was enacted July 10, 1984. There is no prohibition under the Amendments against jury trials being conducted by the bankruptcy court. The Amendments are silent on the right of the debtor, trustee, or creditors to jury trials in cases and proceedings. Title 28 U.S.C. § 1411(a) states “[T]his chapter and Title 11 do not affect any right to trial by jury that an individual has under applicable non-bankruptcy law with regard to a personal injury or wrongful death tort claim.” Conspicuous by its absence in § 1411 is the" }, { "docid": "5165932", "title": "", "text": "Bankruptcy Code operates to convert this action into an equitable one for the purpose of determining whether the defendant has been divested of its seventh amendment right to a trial by jury. We note that the 1987 Advisory Committee Note to the current national Bankruptcy Rules, states that Bankruptcy Rule 9015 was deleted because it “has been cited as conferring a right to jury trial in other matters (other than personal injury or wrongful death actions, addressed in 28 U.S.C. § 1411, trial of which is specifically confined to the district court pursuant to 28 U.S.C. § 157(b)(5)) before bankruptcy judges.” Since a procedural rule may not enlarge any substantive right, the rule was abrogated unless and until “the courts of appeals or the Supreme Court define a right to a jury trial in any bankruptcy matters, ...” At the time Adams, Browning was decided (February 25,1987), Bankruptcy Rule 9015 had been deleted in the proposed revision of the Bankruptcy Rules, which deletion was effective as of August 1, 1987. Neither the Eastern District of New York nor the Southern District of New York have ever relied on Bankruptcy Rule 9015 in finding that a right to a jury trial may exist for some bankruptcy matters, and case law on this issue subsequent to August 1, 1987 continues to respect the applicability of the Ross test in making this determination. Having concluded that Datafast has a right to a jury trial and has not been divested of this right by virtue of affirmative waiver nor operation of law, we must now address the issue of whether this Court has the authority to conduct a jury trial. Ill Case law in the Southern and Eastern Districts of New York which address the authority of this Court to conduct a jury trial was largely decided prior to August 1, 1987 and these holdings reflect reliance on the existence of Bankruptcy Rule 9015 to a certain extent. The two exceptions to this observation are this Court’s decision in Adams, Browning, and Matter of Honeycomb, Inc. (Bkrtcy.S.D.N.Y.), supra, n. 20. Case law for these" }, { "docid": "18783704", "title": "", "text": "continue to have the implied power to conduct them. One court stated that § 1411(a) and § 157(b)(5) merely prohibit the bankruptcy court from conducting jury trials in personal injury and wrongful death cases, but not in other type cases. See In re Morse Elec. Co., supra. However, the majority of courts have determined that since Bankr.Rule 9015, which governs the procedures for a jury trial in bankruptcy courts, has not been repealed and because there is no explicit prohibition of jury trials, the bankruptcy courts are allowed to conduct them. See In re Rodgers, 48 B.R. 683 (Bankr.E.D.Okla.1985); Macon Prestressed, supra; Energy Resources Co. v. Rosen, 49 B.R. 278 (Bankr.D.Mass.1985); Zweygardt, supra at 234. Kail’s case is a related proceeding. If Kail had not consented to the bankruptcy court’s jurisdiction, even if a jury trial were permitted in bankruptcy court, it would be nothing more than an advisory opinion because the bankruptcy court is only empowered to give proposed findings of facts and conclusions of law to the district court for a final determination. Therefore, a jury trial in a related case with no jurisdictional consent should be conducted in the first instance in district or state court. See Macon Prestressed, supra at 730; In re Smith-Douglass, 43 B.R. 616 (Bankr.E.D.N.C.1984); In re Morse, supra at 238; and Atlantic Energy, supra. However, when consent is given the question remains whether a bankruptcy court making a final determination in a related matter can conduct a jury trial. The case law, as previously indicated, seems to suggest that the courts try to preserve, whenever possible, the right to a jury trial. On the other hand, for administrative reasons, conducting jury trials is very time consuming and in this case would mean two separate trials. The bankruptcy court based its decision to not permit a jury trial on 28 U.S.C. § 1411(a) language which explicitly provides for jury trials only in personal injury and wrongful death cases. Even then the district court, not the bankruptcy court, would conduct the jury trial according to 28 U.S.C. § 157(b)(5). Nowhere else in the code" }, { "docid": "1155910", "title": "", "text": "the national rules.” Questions arise whether Rule 9015 was adopted in contemplation of the Bankruptcy Judges being afforded Article III status by Congress in solution to the Marathon problem. This position has been publicly stated by at least one member of the Rules Committee. In the new legislation, Congress failed to resolve the authority of bankruptcy judges to conduct jury trials although the matter was repeatedly drawn to the attention of the judiciary committees and their counsel. The Bankruptcy Amendments and Federal Judgeship Act of 1984 was enacted July 10, 1984. There is no prohibition under the Amendments against jury trials being conducted by the bankruptcy court. The Amendments are silent on the right of the debtor, trustee, or creditors to jury trials in cases and proceedings. Title 28 U.S.C. § 1411(a) states “[T]his chapter and Title 11 do not affect any right to trial by jury that an individual has under applicable non-bankruptcy law with regard to a personal injury or wrongful death tort claim.” Conspicuous by its absence in § 1411 is the broad language of § 1480 at subsection (a) which provides that the right to trial by jury in a case or proceeding under Title 11 is retained as it existed under-any statute in effect on September 30, 1979. There is some uncertainty over the fate of § 1480 since the amendments failed to specifically repeal § 1480 and there is no general re-pealer. See Baldwin-United Corporation v. Thompson, 48 B.R. 49, 12 BCD 913 at 914 (Bankr.S.D.Ohio 1985), where the Court found: While it is subject to debate whether 28 U.S.C. § 1480 of the 1978 Code remains in effect, it is beyond question that Bankruptcy Rule 9015 was left untouched by Congress and is still viable. In an interview published in the 1984/1985 Winter American Bankruptcy Institute Newsletter Senators Dole and De-Concini commented on the Congressional intent in enacting § 1411. Senator DeCon-cini said: I believe there was no intent on the part of Congress to alter or modify the rights to jury trial that might have existed under the Reform Act ... There" }, { "docid": "5996129", "title": "", "text": "‘core’ proceedings were argued by some courts to be legal in nature, thus giving rise to a right to a jury trial. Preference actions, for example, unless raised defensively by the Trustee in the process of claims resolution, have been thought by some courts to be legal in nature. See, e.g., In re Paula Saker & Co., 37 B.R. 802 (Bankr.S.D.N.Y.1984), and In re Adams, Browning & Bates, Ltd., supra, but, see contra, In re Reda, supra, (preference actions are equitable), and In re Dunoco Corp., 56 B.R. 137 (Bankr.C.D. Cal.1985) (A fraudulent conveyance action seeking money damages or reconveyance in the alternative is primarily equitable.) 28 U.S.C. § 1480, enacted in the 1978 Bankruptcy Code, provided that the right of a party to a jury trial on a given matter was to be preserved under the 1978 Code. Even after Congress, in the 1984 BAFJA amendments, enacted § 28 U.S.C. 1411, which provides for jury trials in only two circumstances (wrongful death and personal injury claims) many courts, reasoned that the right to a jury trial still exists, absent outright prohibition. See, e.g., In re Rodgers & Sons, Inc., 48 B.R. 683 (Bankr.E.D.Okla.1985). Some courts, however, have found that § 1480 has been implicitly repealed by § 1411, and thus cannot be invoked to justify jury trials in Bankruptcy Court. See, In re Southern Industrial Banking Corp., (District Court opinion), supra. Similarly, current Rule 9015 of the Bankruptcy Rules of Procedure assumes that \"issues tried by right of jury” will be litigated in Bankruptcy Court. The use of Rule 9015, a post-Marathon procedural rule as justification, by many courts, for the grant of a substantive right has raised considerable problems. Because of these problems, R9015 will be abrogated under the pending rules amendments. Barring any revisionary action by Congress, the rules amendments will take effect on August 1, 1987. The commentary regarding the abrogation of R9015 leaves the determination of jury trial rights to the courts and suggests that where that right is established, a local rule 9015 can be adopted. See Proposed Rule Amendment, R9015, Committee Note. Treating" }, { "docid": "10235743", "title": "", "text": "9015 because the rule had been construed as conferring a right to a jury trial in bankruptcy courts. Such a construction improperly enlarged section 1411 of title 28, in contravention to 28 U.S.C. § 2075, which requires that the rules “shall not abridge, enlarge, or modify any substantive right.” Section 1411 of title 28, added by the 1984 Amendments, preserves a right to a jury trial for personal injury or wrongful death claims, which 28 U.S.C. § 157(b)(5) requires to be tried in the district court. Because courts had construed Rule 9015 as conferring a right to a jury trial on other matters, Rule 9015 was repealed. See generally Advisory Committee Note (1987) to Bankruptcy Rule 9015. The Court’s primary concern in the Marathon decision was that the 1978 Bankruptcy Code enabled non-Article III bankruptcy judges to exercise and encroach upon the judicial power reserved for Article III courts when bankruptcy judges adjudicated traditional, state common law actions. Marathon, 458 U.S. at 84, 102 S.Ct. at 2878 (Brennan, J. plurality opinion); see also 458 U.S. at 89-92, 102 S.Ct. at 2880-2882 (Rehnquist, J., concurring); 458 U.S. at 92, 102 S.Ct. at 2882 (Burger, C.J. dissenting). The Supreme Court has since narrowed its interpretation of Marathon to reflect this primary concern in later decisions. Clearly, Marathon establishes that Congress may not vest in a non-Article III court the power to adjudicate, render final judgment, and issue binding orders in a traditional contract action arising under state law, without consent of the litigants. Thomas v. Union Carbide Agricultural Products Co., 473 U.S. 568, 584, 105 S.Ct. 3325, 3334, 87 L.Ed.2d 409 (1985) (emphasis added). The Court’s narrow holding in Marathon confirms that bankruptcy judges do not have the authority to render a final adjudication of a non-core proceeding without the consent of the parties. However, if the litigants consent, it follows that a bankruptcy judge can preside over a jury trial and request the clerk to enter a final judgment in a non-core proceeding. In a similar manner, litigants can consent to a magistrate presiding over a jury trial in a civil" }, { "docid": "6452924", "title": "", "text": "extent Congress statutorily preserved the right to trial by jury in 28 U.S.C. § 1411, it provided that these trials must be conducted in district court. 28 U.S.C. § 157(b)(5). Debtor argues that 28 U.S.C. § 1480, which was enacted as part of the Bankruptcy Reform Act of 1978, and which provided a right to trial by jury in bankruptcy court, is still effective. However, based on the discussion in part III of this opinion, the Court concludes that this statute did not survive the the Bankruptcy Amendments and Federal Judgeship Act of 1984. Based on the above, if Debtor had a right to trial by jury in the action, the proceeding would be transferred to the district court because the bankruptcy court is not authorized to conduct jury trials. However, the Court concludes that the Debtor has no right to a jury trial. Accordingly, Debtor’s demand must be denied. III. THE DEBTOR’S RIGHT TO JURY TRIAL The right to a jury trial in bankruptcy or related proceedings, exists if authorized by statute or by the United States Constitution. In re Chase and Sanborn Corp., 835 F.2d 1341, 1348 (11th Cir.1988); In re Smith, 84 B.R. 175, 177 (Bankr.D.Ariz.1988). Statutory Right to a Jury Trial 28 U.S.C. § 1411, the single statute in effect that addresses the right to a jury trial in proceedings under, arising in, or related to cases under Title 11, preserves this right only in two specific actions: personal injury and wrongful death tort claims. See BANKR.R. 9015, Advisory Committee Note (1987) (“Section 1411, added by the 1984 Amendments, affords a jury trial only for personal injury or wrongful death tort claims ...”). Accordingly, there is no federal statutory authority grant of a right to a jury trial in most bankruptcy and bankruptcy related matters, including this adversary proceeding. Debtor claims that 28 U.S.C. § 1480 is effective and affords it a right to a jury trial in this proceeding. The Court does not agree with Debtor that the statute is still effective. Section 113 of the 1984 Act provided that amendments made to Title 28" }, { "docid": "10235742", "title": "", "text": "bankruptcy judges from conducting jury trials. Nevertheless, the Supreme Court, acting pursuant to its rulemaking power, proposed new Bankruptcy Rule 9015. Rule 9015 outlined the procedures for a jury trial in the bankruptcy court. Proposed Rule 9015 became effective by operation of statute on August 1, 1983. Thereafter, Congress enacted the 1984 Amendments to the Bankruptcy Code to remedy the jurisdictional defects highlighted by the Marathon decision. Under the 1984 Amendments, bankruptcy judges can hear and determine only “core” proceedings arising under title 11, as referred by district courts. 28 U.S.C. § 157(a), (b)(1) (emphasis added). Under section 157(c)(1), a bankruptcy judge only can hear a non-core proceeding. The district court must enter the final order after reviewing the bankruptcy judge’s proposed findings and conclusions and making a de novo review of matters objected to. 28 U.S.C. § 157(c)(1). Unfortunately, the 1984 Amendments did not expressly address whether bankruptcy judges could preside over jury trials. Nonetheless, in August, 1987, Bankruptcy Rule 9015 was repealed by the Supreme Court. The Supreme . Court abrogated Bankruptcy Rule 9015 because the rule had been construed as conferring a right to a jury trial in bankruptcy courts. Such a construction improperly enlarged section 1411 of title 28, in contravention to 28 U.S.C. § 2075, which requires that the rules “shall not abridge, enlarge, or modify any substantive right.” Section 1411 of title 28, added by the 1984 Amendments, preserves a right to a jury trial for personal injury or wrongful death claims, which 28 U.S.C. § 157(b)(5) requires to be tried in the district court. Because courts had construed Rule 9015 as conferring a right to a jury trial on other matters, Rule 9015 was repealed. See generally Advisory Committee Note (1987) to Bankruptcy Rule 9015. The Court’s primary concern in the Marathon decision was that the 1978 Bankruptcy Code enabled non-Article III bankruptcy judges to exercise and encroach upon the judicial power reserved for Article III courts when bankruptcy judges adjudicated traditional, state common law actions. Marathon, 458 U.S. at 84, 102 S.Ct. at 2878 (Brennan, J. plurality opinion); see also 458 U.S." }, { "docid": "18904072", "title": "", "text": "in which such a demand might have been made of right, the court in its discretion upon motion may order a trial by a jury of any or all issues. The Advisory Committee Note to Rules of Practice and Procedure in Bankruptcy Rule 7001 notes that Part VII Adversary Proceedings incorporates or adapts most of the Federal Rules of Civil Procedure. Neither F.R.Civ.P. Rule 38, nor 39, is incorporated or adapted in Part VII. The Advisory Committee Note to Bankruptcy Rule 7001 lists Bankruptcy Rule 9015 as the comparable rule to F.R.Civ.P. Rules 38 and 39. Bankruptcy Rule 9015 was abrogated in 1987. The Advisory Committee commented in its Note to the 1987 Amendment of former Bankruptcy Rule 9015: Former section 1480 of title 28 preserved a right to trial by jury in any case or proceeding under title 11 in which a jury trial was provided by statute. Rule 9015 provided the procedure for jury trials in bankruptcy courts. Section 1480 was repealed. Section 1411 added by the 1984 amendments affords a jury trial only for personal injury or wrongful death claims, which 28 U.S.C. § 157(b)(5) requires be tried in the district court. Nevertheless, Rule 9015 has been cited as conferring a right to jury trial in other matters before the bankruptcy judges. In light of the clear mandate of 28 U.S.C. § 2075 that the ‘rules shall not abridge, enlarge, or modify any substantive right,’ Rule 9015 is abrogated. In the event the courts of appeals or the Supreme Court define a right to jury in any bankruptcy matters, a local rule in substantially the form of Rule 9015 can be adopted pending amendment of these rules. Although we disagree with the view held by some Courts that the abrogation of Rule 9015 left the Bankruptcy Court powerless to conduct a jury trial, see e.g., In re Mark Jay Kaufman, P.A., 78 B.R. 309, 311 (Bkrtcy.N.D.Fla.1987), the Bankruptcy Court’s power to conduct a jury trial on the core matters in this adversary proceeding need not be decided by us today. Instead, we leave this issue to the" }, { "docid": "18783703", "title": "", "text": "in the district court. These courts compare § 1411(a) with its predecessor, 28 U.S.C. § 1480(a) which gave a much broader right to jury trials in bankruptcy court. By striking § 1480(a), Congress has left the “strong suggestion that the right to trial by jury” is limited to personal injury and wrongful death cases. See In re American Energy, Inc., 50 B.R. 175, 180 (Bankr.D.N.D.1985) (court must abstain in related cases where the parties request a jury); Collier, supra at § 3.01, 365 (§ 1411 appears to be the only exception to the general rule that there are no jury trials in bankruptcy; unless a removed case is remanded, the party removing the case loses his right to a jury trial); U.S. Code Cong., supra at 579, 580 (“in this narrow range of cases the parties do not lose any right to a jury trial” (referring to personal injury and wrongful death cases)). Other courts have held that § 1411(a) neither expressly prohibits nor permits jury trials by the bankruptcy court, therefore the bankruptcy courts continue to have the implied power to conduct them. One court stated that § 1411(a) and § 157(b)(5) merely prohibit the bankruptcy court from conducting jury trials in personal injury and wrongful death cases, but not in other type cases. See In re Morse Elec. Co., supra. However, the majority of courts have determined that since Bankr.Rule 9015, which governs the procedures for a jury trial in bankruptcy courts, has not been repealed and because there is no explicit prohibition of jury trials, the bankruptcy courts are allowed to conduct them. See In re Rodgers, 48 B.R. 683 (Bankr.E.D.Okla.1985); Macon Prestressed, supra; Energy Resources Co. v. Rosen, 49 B.R. 278 (Bankr.D.Mass.1985); Zweygardt, supra at 234. Kail’s case is a related proceeding. If Kail had not consented to the bankruptcy court’s jurisdiction, even if a jury trial were permitted in bankruptcy court, it would be nothing more than an advisory opinion because the bankruptcy court is only empowered to give proposed findings of facts and conclusions of law to the district court for a final determination." }, { "docid": "18904073", "title": "", "text": "only for personal injury or wrongful death claims, which 28 U.S.C. § 157(b)(5) requires be tried in the district court. Nevertheless, Rule 9015 has been cited as conferring a right to jury trial in other matters before the bankruptcy judges. In light of the clear mandate of 28 U.S.C. § 2075 that the ‘rules shall not abridge, enlarge, or modify any substantive right,’ Rule 9015 is abrogated. In the event the courts of appeals or the Supreme Court define a right to jury in any bankruptcy matters, a local rule in substantially the form of Rule 9015 can be adopted pending amendment of these rules. Although we disagree with the view held by some Courts that the abrogation of Rule 9015 left the Bankruptcy Court powerless to conduct a jury trial, see e.g., In re Mark Jay Kaufman, P.A., 78 B.R. 309, 311 (Bkrtcy.N.D.Fla.1987), the Bankruptcy Court’s power to conduct a jury trial on the core matters in this adversary proceeding need not be decided by us today. Instead, we leave this issue to the Bankruptcy Court for the Southern District of Florida to whom we will send this proceeding. AM Cable’s Rule 12(b)(1) motion to dismiss is denied because we determine the Trustee’s action for breach of a post-petition contract with a debtor-in-possession is a core proceeding over which we exercise our subject matter jurisdiction under 28 U.S.C. § 1334 and 157. AM Cable’s Rule 12(b)(2) motion to dismiss is denied because we have in personam jurisdiction over AM Cable where Title 11 provides us with a Federal Question and AM Cable was properly served under Bankruptcy Rule 7004 and F.R.Civ.P. Rule 4(e). We will grant AM Cable’s Rule 12(b)(3) venue objection and transfer the venue of this proceeding to the Bankruptcy Court for the Southern District of Florida because we determine the exercise of § 1409(d) mandatory or § 1412 discretionary change of venue of this core proceeding is warranted. Lastly, we defer the issue of a Bankruptcy Court’s power to conduct a jury trial over this core matter to the Bankruptcy Court for the Southern District of" } ]

[ { "docid": "10630190", "title": "", "text": "she was injured by the incident. Id. Even more significantly, the court explained the line between the amount of force sufficient to sustain a conviction for second-degree robbery, and insufficient force: “In sum, where there was no physical contact, no struggle, and no injury, [Missouri] courts have found the evidence insufficient to support a [second-degree] robbery conviction. But where one or more of those circumstances is present, a jury reasonably could find a use of force.” Id. at 632 (internal citation omitted) (emphasis added). In other words, in Missouri a defendant can be convicted of second-degree robbery when he has physical contact with a victim but does not necessarily cause physical pain or injury. Although this is not the same as concluding the force used by such a defendant is not “capable of causing physical pain or injury,” Johnson, 559 U.S. at 140, 130 S.Ct. 1265 (emphasis added), it does lead us to conclude there is at least a “reasonable probability” Missouri could apply its statute (or already has) to conduct falling short of violent force. Moncrieffe, 133 S.Ct. at 1685. However, a second-degree robbery under Mis souri law does not necessarily require use of the type of violent force described by the Supreme Court in Johnson. Our conclusion about Missouri’s second-degree robbery statute is consistent with the Fourth Circuit’s view of common law robbery under North Carolina law. See United States v. Gardner, 823 F.3d 793, 803-04 (4th Cir. 2016) (concluding that “the minimum conduct necessary to sustain a conviction for North' Carolina common law robbery does not” meet Johnson’s violent, force requirement, relying on state court decisions finding that “pushing the victim’s hand off of a carton of cigarettes” and “pushing] the shoulder of an electronics store clerk, causing.her to fall onto shelves while the defendant took possession of a television” involved sufficient force to sustain convictions). Thus, statutes that criminalize conduct falling short of Johnson’s “violent force” do not qualify as crimes of violence under U.S.S.G. § 2K2.1(a)(4)(A). Missouri’s second-degree robbery statute is such a statute, because it does not necessarily require the use of violent force" } ]

[ { "docid": "10630189", "title": "", "text": "137, 130 S.Ct. 1265). Although the “theoretical possibility” that a state may apply its statute to conduct falling short of violent force is not enough to disqualify a conviction, a “realistic probability” will suffice. See id. at 1685 (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007)). A Missouri court upheld a conviction for second-degree robbery in at least one situation where a defendant’s conduct appears to have fallen short of using “force capable of causing physical pain or injury to another person.” Johnson, 559 U.S. at 140, 130 S.Ct. 1265. In State v. Lewis, the Missouri Court of Appeals sustained a conviction based on the victim’s testimony that the defendant “‘bumped’ her shoulder and ‘yanked’ her purse away from her[,]” while “another witness testified that [the defendant] ‘nudged’ [the victim],” and yet a “third witness testified that there was a ‘slight’ struggle” over the purse. 466 S.W.3d 629, 631 (Mo. Ct. App. 2015). Significantly, the victim- did not testify the slight struggle caused her any pain, or that she was injured by the incident. Id. Even more significantly, the court explained the line between the amount of force sufficient to sustain a conviction for second-degree robbery, and insufficient force: “In sum, where there was no physical contact, no struggle, and no injury, [Missouri] courts have found the evidence insufficient to support a [second-degree] robbery conviction. But where one or more of those circumstances is present, a jury reasonably could find a use of force.” Id. at 632 (internal citation omitted) (emphasis added). In other words, in Missouri a defendant can be convicted of second-degree robbery when he has physical contact with a victim but does not necessarily cause physical pain or injury. Although this is not the same as concluding the force used by such a defendant is not “capable of causing physical pain or injury,” Johnson, 559 U.S. at 140, 130 S.Ct. 1265 (emphasis added), it does lead us to conclude there is at least a “reasonable probability” Missouri could apply its statute (or already has) to conduct falling short of violent" }, { "docid": "10630200", "title": "", "text": "the commentary’s inclusion of offenses not otherwise enumerated in § 4B1.2. GRUENDER, Circuit Judge, dissenting. The question in this case is whether Bell’s second-degree robbery conviction qualifies as a crime of violence under United States Sentencing Guidelines Manual (“U.S.S.G.”) § 2K2.1(a)(4)(A) and § 4B1.2(a)(l). In my view, it does, as Missouri second-degree robbery necessarily requires the type of violent force described by the Supreme Court in Johnson v. United States, 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010). Because the court reaches a contrary conclusion, I respectfully dissent. The court relies on dicta from a single case to conclude that Missouri second-degree robbery does not necessarily require force capable of causing physical pain or injury to another person. See State v. Lewis, 466 S.W.3d 629, 632 (Mo. Ct. App. 2015). The court latches on to two sentences in State v. Lewis: “In sum, where there was no physical contact, no struggle, and no injury, [Missouri] courts have found the evidence insufficient to support a [second-degree] robbery conviction. But where one or more of those circumstances is present, a jury reasonably could find a use of force.” Id. at 632 (citations omitted) (emphasis added). The court then focuses solely on how physical contact does not meet the force requirement in Johnson. See Johnson, 559 U.S. at 140, 130 S.Ct. 1265 (“[T]he phrase ‘physical force’ means ...\" force capable of causing physical pain or injury to another person.”). In focusing on this dicta, the court loses sight of the holding of Lems. See 466 S.W.3d at 631-33. For second-degree robbery to qualify as a crime of violence, the use or threatened use of force in the course of stealing property from a person must be, at a minimum, “capable” of causing pain or injury to that person. See Johnson, 559 U.S. at 140, 130 S.Ct. 1265. Lems does not hold otherwise. To the contrary, the Missouri Court of Appeals reaffirmed the longstanding definition of second-degree robbery as “enough force to prevent or overcome ... resistance,” 466 S.W.3d at 633, and upheld Lewis’s second-degree robbery conviction when he bumped the victim" }, { "docid": "10630202", "title": "", "text": "from behind, momentarily struggled with her, and then yanked the purse out of her hands, id. These actions are akin to “a slap in the face” and therefore meet the Johnson standard. Johnson, 559 U.S. at 143, 130 S.Ct. 1265. Despite the court’s opposite interpretation, Lewis does riot deal primarily with physical contact but with actions that as a whole are “capable of causing physical pain or injury to another person.” Id. at 140, 130 S.Ct. 1265. The. dicta in Lems—uncon-nected from its facts—cannot overcome the consistent line of Missouri second-de gree robbery cases requiring force capable of preventing or overcoming resistance. In fact, Lewis cites to these exact cases. See State v. Childs, 257 S.W.3d 655, 660 (Mo. Ct. App. 2008) (finding that a “tussle” satisfied the elements of a robbery because “tussling” means fighting, struggling, contending, wrestling, and scuffling); State v. Tivis, 884 S.W.2d 28, 30 (Mo. Ct. App. 1994) (concluding that “yanking” a purse off a victim’s shoulder is insufficient to prove second-degree robbery without a struggle or injury); State v. Butler, 719 S.W.2d 35, 37 (Mo. Ct. App. 1986) (upholding second-degree robbery where Butler grabbed a woman’s purse and injured her finger). Lewis does not provide a “realistic probability” that Missouri will apply its second-degree robbery statute to conduct falling short of violent force: See Moncrieffe v. Holder, - U.S. -, 133 S.Ct. 1678, 1685, 185 L.Ed.2d 727 (2013) (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007)). Because a “theoretical possibility” is not enough, the district court should be affirmed. See id. Even if Lewis could be read to allow for a second-degree robbery conviction based on conduct falling short of violent force, our decision in United States v. Roblero-Ramirez requires' that we analyze state law at the time of the conviction. 716 F.3d 1122, 1127 (8th Cir. 2013). Doing so leads to the conclusion that Missouri second-degree' robbery qualifies as a crime of violence. In Roblero-Ramirez, we reversed a sentencing enhancement for a crime of violence because Roblero-Ramirez’s 2006 Nebraska conviction for manslaughter required only unintentional conduct, while" }, { "docid": "13990963", "title": "", "text": "to uphold a common law robbery conviction” and upholding “a conviction when a defendant pushed the shoulder of an electronics store clerk, causing her to fall onto shelves while the defendant took possession of a televi sion”) (internal citations omitted); see also United States v. Nicholas, No. 16-3043, 686 Fed.Appx. 570, 574-77, 2017 WL 1429788, at *3-5 (10th Cir. Apr. 24, 2017) (holding that a conviction' under the Kansas robbery statute is not a violent felony under the ACCA); United States v. Winston, 850 F.3d 677, 684-85 (4th Cir. 2017) (holding that a-conviction under the Virginia robbery statute is not a violent felony under the ACCA); United States v. Eason, 829 F.3d 633, 640-42 (8th Cir. 2016) (holding that a conviction under the Arkansas robbery statute is' not a violent felony under the ACCA). The force required for a conviction under Ohio Rev. Code Ann. § 2911.02(A)(3) is similarly not “violent force ... capable of causing physical pain or injury to another person.” See Johnson, 559 U.S. at 140, 130 S.Ct. 1265. Instead, Ohio appellate courts have held that “bumping into an individual,” Carter, 504 N.E.2d at 471 (quoting Grant, 1981 WL 4576, at *2), and that the force “exerted ... upon the victim’s. arm so as to remove the purse from her involuntarily,” Boggess, 2005 WL 3344502, at *3, is sufficient to sustain a conviction under Ohio Rev. Code Ann. § 2911.02(A)(3). We therefore see no way to distinguish this level of force from the force held to be minimal by our sister circuits. See, e.g., Gardner, 823 F.3d at 803-04 (holding that “the minimum conduct necessary to sustain a conviction for North Carolina common law robbery does not necessarily include the use, attempted use, or threatened use of ‘force capable of causing physical pain or injury to another person,’ ” where - “even minimal contact may be sufficient to sustain a robbery conviction if the victim forfeits his or her property in response”). Ohio Rev. Code Ann. § 2911.02(A)(3) also stands in stark contrast to the statutes held by this and other circuits to contain as an element" }, { "docid": "7868710", "title": "", "text": "Mulkern, 854 F.3d at 93 (quoting Raymond, 467 A.2d at 165) (emphasis omitted). We thus concluded that the robbery offense at issue could, under Maine law, be satisfied by proof of “ ‘the mere act of snatching a purse from the hand of a victim’ ,., even if the robber never made ‘direct bodily contact’ with the victim.” Id. (quoting Raymond, 467 A.2d at 164, 165). On that basis, we then concluded that the force clause of ACCA’s definition of a “violent felony” did not encompass the offense of robbery in Maine that was at issue. Id. at 93-94. We reasoned that such a minimal use of force as would be required merely .to .snatch a purse was too slight a use of force to constitute force “ ‘capable of causing physical pain or injury’ ” under Johnson I, Id. at 93-94 (quoting Johnson I, 559 U.S. at 140, 130 S.Ct. 1265); see also Johnson I, 559 U.S. at 140-41, 130 S.Ct. 1265 (‘We think it clear that in the context of a statutory definition of ‘violent felony,’ the phrase ‘physical force’ means .violent force-—that is, force capable, of causing physical pain or injury to another person.... When the adjective ‘yiolent’ is attached to the noun ‘felony,’ its connotation of strong physical force is even clearer.”); accord United States v. Ramos-González, 775 F.3d 483, 504 (1st Cir. 2015). Against this precedential background, we turn back, then; to the question at issue here: whether the type of robbery that Steed was convicted of attempting to commit—a variant of second-degree robbery under New York law-falls within the force clause of the career offender guideline’s definition of a “crime of violence.” The answer to this key question is one that concerns the state of New York law as it stood at the time that Steed was convicted of attempting to commit that crime, which was in 2000. That is so because we apply an historical approach to determine whether an offense categorically matches the elements of the force clause of the definition of a “crime of violence” under the career offender guideline. After" }, { "docid": "7187183", "title": "", "text": "guilt if there is a reasonable probability that the result of the proceeding would have been different \"had the evidence been disclosed to the defense.”). . The government sought and obtained a concession from Eason at sentencing that \"there is no objection that Mr. Eason falls with[in] the residual clause,” and did not introduce any evidence or argument to support a finding that any of Eason’s prior convictions qualified under the \"force clause.” . While we have held that force that produces even a minimal degree of bodily injury constitutes violent force, see United States v. Rice, 813 F.3d 704, 706 (8th Cir. 2016), actual bodily injury is not required to establish a robbery under Arkansas law. We have also held, however, that not every unwanted touching constitutes violent force. See, e.g., United States v. Ossana, 638 F.3d 895, 900 (8th Cir. 2011) (holding that the Arizona simple assault statute, Ariz. Rev. Stat. § 13-1203, which could be violated “with any degree of contact by ‘Dcjnowingly touching another person with the intent to ... insult or provoke such person,' ” did not qualify as the use of physical force because it was not violent force). Other courts have similarly held that not all unwanted touchings rise to the level of violence required by the force clause. See, e.g., United States v. Gardner, 823 F.3d 793, 803-04, No. 14-4533, 2016 WL 2893881, at *7 (4th Cir. May 18, 2016) (holding that the force required under North Carolina’s robbery statute was insufficient to qualify categorically as a crime of violence, and supporting that result with examples of upheld convictions where \"a defendant pushed the shoulder of an electronics store clerk, causing her to fall onto shelves while the defendant took possession of a television,” and where a defendant \"push[ed] the victim’s hand off of a carton of cigarettes.”) . Eason was also convicted of first degree battery under Ark. Code Ann. § 5-13-201. Because the government has established only one other predicate offense, we need not determine whether this conviction qualifies under the force clause." }, { "docid": "13990964", "title": "", "text": "courts have held that “bumping into an individual,” Carter, 504 N.E.2d at 471 (quoting Grant, 1981 WL 4576, at *2), and that the force “exerted ... upon the victim’s. arm so as to remove the purse from her involuntarily,” Boggess, 2005 WL 3344502, at *3, is sufficient to sustain a conviction under Ohio Rev. Code Ann. § 2911.02(A)(3). We therefore see no way to distinguish this level of force from the force held to be minimal by our sister circuits. See, e.g., Gardner, 823 F.3d at 803-04 (holding that “the minimum conduct necessary to sustain a conviction for North Carolina common law robbery does not necessarily include the use, attempted use, or threatened use of ‘force capable of causing physical pain or injury to another person,’ ” where - “even minimal contact may be sufficient to sustain a robbery conviction if the victim forfeits his or her property in response”). Ohio Rev. Code Ann. § 2911.02(A)(3) also stands in stark contrast to the statutes held by this and other circuits to contain as an element the use, attempted use, or threatened use of “force capable of causing physical pain or injury to another person.” See Johnson, 559 U.S. at 140, 130 S.Ct. 1265. The level of force criminalized by the relevant state statutes in these cases is much greater than the level of force criminalized by the Ohio robbery statute. For example, in United States v. Harris, 844 F.3d 1260, 1266-68 (10th Cir. 2017), the Tenth Circuit held that a conviction under the Colorado robbery statute constituted a violent felony under the ACCA because the Colorado Supreme Court had explicitly held that “the gravamen of the offense of robbery is the violent nature of the taking.” Id. at 1267 (quoting People v. Borghesi, 66 P.3d 93, 100-01 (Colo. 2003)). In fact, the Tenth Circuit distinguished the level of force required by the Colorado statute from those state robbery statutes criminalizing a lower level of nonviolent force, such as the force inherent in purse-snatching incidents. See id. at 1267-68, 1268- n.6 (distinguishing the Colorado robbery statute from the state robbery statutes" }, { "docid": "1344429", "title": "", "text": "Borghesi, a later Colorado Supreme Court decision. (Doc. 15 at 6); 844 F.3d at 1267. However, the New Mexico Court of Appeals’ purse-snatching decisions in Curley and Verdugo are entirely consistent with the New Mexico Supreme Court’s prior purse-snatching decision in Clokey. The Verdugo decision is also consistent with and post-dates the New Mexico Supreme Court’s decision in Bernal 2006-NMSC-050, 140 N.M. 644, 146 P.3d 289. Although the Bernal court stated that, “[s]ince the robbery statute is designed to protect citizens from violence, ... the legislature intended to allow for separate charges for each individual against whom violence or the threat of violence is separately used” in the course of a taking, it used the terms “force” and “violence” interchangeably consistent with Curley and Fuentes, and made no attempt to address the type or quantum of force this element requires, or to revisit Clokey and its progeny. Id. at ¶¶ 19, 28, 31. Thus, unlike the Harris court in its treatment of Davis, here there is no basis on which to discount Clokey, Curley, and Verdugo. (Doc. 15 at 7); Harris, 844 F.3d at 1264, 1267. And, as the Harris court implied and the Magistrate Judge proposed, this Court concludes that the force used in purse-snatching robberies does not categorically rise to the level of Curtis Johnson physical force. (Doc. 12 at 10-11; Doc. 15 at 7.) The Court agrees with Magistrate Judge Khalsa that Harris’ second instructive point is how the court distinguished the matter before it from Gardner, 823 F.3d at 793. (Doc. 15 at 7); Harris, 844 F.3d at 1267-68 & n.6. In Gardner, the Fourth Circuit held that North Carolina robbery is not a violent felony under the ACCA’s elements clause. 823 F.3d at 803-04. The Gardner court reasoned that “the minimum conduct necessary to sustain a conviction for North Carolina common law robbery does not necessarily include the use, attempted use, or threatened use of force capable of causing physical pain or injury to another person,” where “the degree of force used [to commit a robbery] is immaterial, so long as it is sufficient to" }, { "docid": "854959", "title": "", "text": "The Virginia court concluded that the defendant’s act of “physical jerking,” which was not strong enough to cause the victim to fall, was a sufficient degree of force to support the robbery charge. Id. at 669-70. The extent of the victim’s resistance in that case was limited to the fact that she was “forc[ed] ... to turn and face” the defendant. Id. at 670. Contrary to the government’s position in the present case, such resistance by the victim does not necessarily reflect use of “violent force” by the defendant. See generally Gardner, 823 F.3d at 803-04 (explaining that a defendant’s act of pushing the victim’s shoulder and causing her to fall was not violent force under Johnson I); Karimi v. Holder, 715 F.3d 561, 569 (4th Cir. 2013) (explaining that “[grabbing [an officer’s hand], on its own, is not necessarily ‘violent force’ ”) (quoting Johnson I). Based on the above decisions from the appellate courts in Virginia, we conclude that the minimum conduct necessary to sustain a conviction for Virginia common law robbery does not necessarily include the use, attempted use, or threatened use of “violent force ... capable of causing physical pain or injury to another person,” under Johnson I. 559 U.S. at 140,130 S.Ct. 1265 (emphasis omitted). Accordingly, we hold that Winston’s conviction for Virginia common law robbery does not qualify as a violent felony under the ACCA. Our conclusion is not altered by the government’s argument that our decision in United States v. McNeal, 818 F.3d 141 (4th Cir. 2016), compels a different result in the present case. In McNeal we held that federal armed bank robbery under 18 U.S.C. § 2113(d) qualified as a crime of violence under 18 U.S.C. § 924(c)(3)(A), in part because the lesser included offense of bank robbery “by force and violence[ ] requires the use of physical force.” Id. at 153, 157. Our conclusion that federal armed bank robbery had as an element “the use, attempted use, or threatened use of physical force,” within the meaning of 18 U.S.C. § 924(c)(3)(A), is distinguishable from the present case because that decision involved" }, { "docid": "13990962", "title": "", "text": "force, such as the force incidental to purse-snatching, a conviction under that statute is not a “crime of violence” under the guidelines’ force clause or a “violent felony” under the ACCA force clause. See United States v. Mulkern, 854 F.3d 87, 93 (1st Cir. 2017) (holding that a state conviction for robbery in Maine was not a violent felony under the ACCA because “Maine’s highest court recognizes that ‘any physical force’ suffices to satisfy the ‘physical force’ element [of the robbery statute],” including “ ‘the mere act of snatching a purse from the hand of a victim’ .,., even if the robber never made ‘direct bodily contact’ with the victim”) (emphasis in original); United States v. Gardner, 823 F.3d 793, 803-04 (4th Cir. 2016) (holding that a conviction under the North Carolina robbery statute did not qualify as a violent felony under the ACCA in light of decisions from the North Carolina Court of Appeals holding “that a defendant’s act of pushing the victim’s hand off of a carton of cigarettes was sufficient ‘actual force’ to uphold a common law robbery conviction” and upholding “a conviction when a defendant pushed the shoulder of an electronics store clerk, causing her to fall onto shelves while the defendant took possession of a televi sion”) (internal citations omitted); see also United States v. Nicholas, No. 16-3043, 686 Fed.Appx. 570, 574-77, 2017 WL 1429788, at *3-5 (10th Cir. Apr. 24, 2017) (holding that a conviction' under the Kansas robbery statute is not a violent felony under the ACCA); United States v. Winston, 850 F.3d 677, 684-85 (4th Cir. 2017) (holding that a-conviction under the Virginia robbery statute is not a violent felony under the ACCA); United States v. Eason, 829 F.3d 633, 640-42 (8th Cir. 2016) (holding that a conviction under the Arkansas robbery statute is' not a violent felony under the ACCA). The force required for a conviction under Ohio Rev. Code Ann. § 2911.02(A)(3) is similarly not “violent force ... capable of causing physical pain or injury to another person.” See Johnson, 559 U.S. at 140, 130 S.Ct. 1265. Instead, Ohio appellate" }, { "docid": "1344430", "title": "", "text": "Verdugo. (Doc. 15 at 7); Harris, 844 F.3d at 1264, 1267. And, as the Harris court implied and the Magistrate Judge proposed, this Court concludes that the force used in purse-snatching robberies does not categorically rise to the level of Curtis Johnson physical force. (Doc. 12 at 10-11; Doc. 15 at 7.) The Court agrees with Magistrate Judge Khalsa that Harris’ second instructive point is how the court distinguished the matter before it from Gardner, 823 F.3d at 793. (Doc. 15 at 7); Harris, 844 F.3d at 1267-68 & n.6. In Gardner, the Fourth Circuit held that North Carolina robbery is not a violent felony under the ACCA’s elements clause. 823 F.3d at 803-04. The Gardner court reasoned that “the minimum conduct necessary to sustain a conviction for North Carolina common law robbery does not necessarily include the use, attempted use, or threatened use of force capable of causing physical pain or injury to another person,” where “the degree of force used [to commit a robbery] is immaterial, so long as it is sufficient to compel the victim to part with his .property.” Id. (internal quotation marks and citations omitted). Distinguishing Gardner, the Harris court suggested that North Carolina robbery was not a violent felony under the ACCA’s elements clause because, unlike Colorado robbery, it did not “remain[ ] committed to the common law definition of robbery” in this respect. 844 F.3d at 1267-68 & n.6. As the Magistrate Judge pointed out in her Supplemental PFRD, New Mexico law is virtually identical to the North Carolina law the Tenth Circuit distinguished from Colorado law in Hams. (Doc. 15 at 7-8.) As long ago as 1967, the New Mexico Court of Appeals held that, “[wjhere [robbery by] force is charged, the issue is not how much force was used, but whether the force was sufficient to compel the victim to part with his property.” New Mexico v. Sanchez, 1967-NMCA-009, ¶ li, 78 N.M. 284, 430 P.2d 781 (emphasis added). Six years later, the appellate court reiterated this point: [tjhe use or threatened use of force must be the lever by which" }, { "docid": "13990960", "title": "", "text": "S.Ct. 1678, 1684, 185 L.Ed.2d 727 (2013) (quoting Johnson, 559 U.S. at 137, 130 S.Ct. 1265). ■ Finally, our conclusion is in line with recent decisions from óther federal appellate courts across the country that have addressed the issue before us now: whether the state robbery statute in question contains as an element the use, attempted use; or threatened use of “force capable of causing physical pain or injury to another person.” See Johnson, 559 U.S. at 140, 130 S.Ct. 1265. We conclude that Ohio Rev. Code Ann. § 2911.02(A)(3) is akin to those state robbery statutes held not to contain such a high level of force. The statute is also markedly dissimilar to the state statutes held to criminalize .the level of violent force necessary to sustain a sentence enhancement under the guidelines. For example, in United States v. Bell, 840 F.3d 963 (8th Cir. 2016), the Eighth Circuit held that a conviction under Missouri’s second-degree robbery statute did not qualify as a crime of violence because it did “not necessarily require use of the type of violent force described by the Supreme Court in Johnson.”' Id. at 966-67. To support its conclusion, the court pointed to a case in which “the Misspuri Court of Appeals- sustained a conviction [for second-degree robbery] based on the victim’s testimony that the defendant “bumped’ her shoulder and ‘yanked’her purse away from her[,]’ while ‘another witness testified that [the defendant] ‘nudged’ [the victim], and yet a ‘third witness testified that there was a ‘slight’ struggle’ over the purse.” See id. at 966 (quoting State v. Lewis, 466 S.W.3d 629, 631 (Mo. Ct. App. 2015)). Also relevant to the court’s decision was the fact that “the victim did not testify [that] the slight struggle caused her any pain, or that she was injured by the incident.” Id. The Eighth Circuit therefore concluded that “there is at least a ‘reasonable probability’ Missouri could apply its statute (or already has) to conduct falling short of violent force.” id (quoting Moncrieffe, 133 S.Ct. at 1685). Other circuits have similarly held that, when a state’robbery statute criminalizes minimal" }, { "docid": "22456451", "title": "", "text": "that even de minimis contact can constitute the “violence” necessary for a common law robbery conviction under North Carolina law. Later decisions by North Carolina’s intermediate appellate court support the conclusion that even minimal contact may be sufficient to sustain a robbery conviction if the victim forfeits his or her property in response. For example, the North Carolina Court of Appeals has held that a defendant’s act of pushing the victim’s hand off of a carton of cigarettes was sufficient “actual force” to uphold a common law robbery conviction. See State v. Chance, 191 N.C.App. 252, 662 S.E.2d 405, 2008 WL 2415981, at *3-4 (N.C.Ct.App. June 17, 2008) (unpublished). Also, the Court of Appeals upheld a conviction when a defendant pushed the shoulder of an electronics store clerk, causing her to fall onto shelves while the defendant took possession of a television. State v. Eldridge, 197 N.C.App. 402, 677 S.E.2d 14 (N.C.Ct. App. June 2, 2009) (unpublished). Based on these decisions from North Carolina’s appellate courts, we conclude that the minimum conduct necessary to sustain a conviction for North Carolina common law robbery does not necessarily include the use, attempted use, or threatened use of “force capable of causing physical pain or injury to another person,” as required by the force clause of the ACCA. Johnson, 559 U.S. at 140, 130 S.Ct. 1265. Therefore, we hold that North Carolina common law robbery does not qualify categorically as a “violent felony” under the ACCA. Our analysis is not altered by decisions of this Court interpreting the crime of robbery in other jurisdictions. See United States v. Presley, 52 F.3d 64, 69 (4th Cir.1995) (concluding that Virginia common law robbery, which requires the taking of property “by violence or intimidation,” is a violent felony under the force clause); United States v. Wilson, 951 F.2d 586, 588 (4th Cir.1991) (explaining that Maryland common law robbery is a “crime of violence” under the force clause of the career offender guidelines). The decisions in Presley and Wilson do not inform our decision today, because they pre-date the Supreme Court’s decision in Moncrieffe, and do not" }, { "docid": "13990959", "title": "", "text": "addressed the level of force required by Ohio Rev, Code Ann. § 2911.02(A)(3), noting that “[i]n purse snatching cases, the evidence is sufficient to show that defendant exerted force toward victim, so as to support conviction for robbery, when ⅛ shows that the accused physically exerted enough force upon the victim’s arm so as to remove the purse from' her involuntarily.” Id. at 3; see also State v. Juhasz, 2015-Ohio-3801, 2015 WL 5515826, at *2 (Ohio Ct. App. 2015) (recognizing that “Ohio courts have held that a struggle over control of an individual’s purse has been sufficient to establish the element of force” and that “the struggle need not be prolonged or active; the act of forcibly removing a purse from an individual’s shoulder is sufficient”). These cases show that, at the very least, a.“realistic probability” exists that Ohio is applying Ohio Rev. Code Ann. § 2911.02(A)(3) in such a way that criminalizes a level of force lower than the type of violent force required by Johnson. See Moncrieffe v. Holder, 569 U.S. 184, 133 S.Ct. 1678, 1684, 185 L.Ed.2d 727 (2013) (quoting Johnson, 559 U.S. at 137, 130 S.Ct. 1265). ■ Finally, our conclusion is in line with recent decisions from óther federal appellate courts across the country that have addressed the issue before us now: whether the state robbery statute in question contains as an element the use, attempted use; or threatened use of “force capable of causing physical pain or injury to another person.” See Johnson, 559 U.S. at 140, 130 S.Ct. 1265. We conclude that Ohio Rev. Code Ann. § 2911.02(A)(3) is akin to those state robbery statutes held not to contain such a high level of force. The statute is also markedly dissimilar to the state statutes held to criminalize .the level of violent force necessary to sustain a sentence enhancement under the guidelines. For example, in United States v. Bell, 840 F.3d 963 (8th Cir. 2016), the Eighth Circuit held that a conviction under Missouri’s second-degree robbery statute did not qualify as a crime of violence because it did “not necessarily require use of" }, { "docid": "1344435", "title": "", "text": "Government cannot erase the New Mexico Supreme Court’s and the New Mexico Court of Appeals’ decisions finding that something less than Curtis Johnson force satisfies the force element of New Mexico robbery simply by labeling the offense “common law robbery.” The Government’s arguments on this point are not persuasive. The Court notes the widely varying decisions reached by other federal appellate courts faced with deciding whether a particular state’s robbery statute necessarily has as an element the actual, attempted, or threatened use of Curtis Johnson physical force, and so is a violent felony under the elements clause. A number of federal appellate courts have concluded that robbery is not a violent felony under the elements clause. See, e.g., Gardner, 823 F.3d at 803-04; Bell, 840 F.3d at 965-67 (Missouri robbery is not a crime of violence under U.S.S.G. § 4B1.2’s elements clause because “[t]he amount of physical force required for a person to be convicted ... does not ... necessarily rise to the level of physical force required for a crime of violence,” where defendant “can be convicted of ... robbery when he has physical contact with a victim but does not necessarily cause physical pain or injury”) (emphasis and internal quotation marks omitted) and id. at 969-70 (Gruender, C.J., dissenting) (“consistent line” of Missouri robbery cases require “force capable of preventing or overcoming resistance”); Eason, 829 F.3d at 641-42 (Arkansas robbery is not a violent felony under ACCA’s elements clause because “the degree of physical force required to commit robbery in Arkansas” does not “rise[] to the level of [Curtis Johnson ] physical force,” where force element of crime requires “some injury ... some struggle ... or some force used in order to take” property); of. United States v. Castro-Vazquez, 802 F.3d 28, 37-38 (1st Cir. 2015) (remanding to district court to determine whether force required for Puerto Rico robbery rises to required level of physical force under U.S.S.G. § 4B1.2’s elements clause, where defendant argued that robbery by “violence is defined under Puerto Rico law to include the slightest use of force”); United States v. Redrick, 841 F.3d" }, { "docid": "854958", "title": "", "text": "that “the degree of force” required for North Carolina robbery “is immaterial, so long as it is sufficient to compel the victim to part with his property”). But see Doctor, 842 F.3d at 311 (explaining that “there is no indication that South Carolina robbery by violence can be committed with minimal actual force”). Because Virginia common law robbery can be committed when a defendant uses only a “slight” degree of force that need not harm a victim, Virginia common law robbery appears to encompass a range of de min-imis contact by a defendant. This conclusion further is supported by a case decided by Virginia’s intermediate appellate court, which illustrates that the minimum culpable conduct required for a conviction of Virginia common law robbery need not amount to violent physical force. Jones, 496 S.E.2d 668. In Jones, the victim was carrying her purse “tucked” under her arm when the defendant approached the victim from behind, “tapped her on the shoulder, and ‘jerked’ her around by pulling her shoulder,” took her purse, and ran. Id. at 669. The Virginia court concluded that the defendant’s act of “physical jerking,” which was not strong enough to cause the victim to fall, was a sufficient degree of force to support the robbery charge. Id. at 669-70. The extent of the victim’s resistance in that case was limited to the fact that she was “forc[ed] ... to turn and face” the defendant. Id. at 670. Contrary to the government’s position in the present case, such resistance by the victim does not necessarily reflect use of “violent force” by the defendant. See generally Gardner, 823 F.3d at 803-04 (explaining that a defendant’s act of pushing the victim’s shoulder and causing her to fall was not violent force under Johnson I); Karimi v. Holder, 715 F.3d 561, 569 (4th Cir. 2013) (explaining that “[grabbing [an officer’s hand], on its own, is not necessarily ‘violent force’ ”) (quoting Johnson I). Based on the above decisions from the appellate courts in Virginia, we conclude that the minimum conduct necessary to sustain a conviction for Virginia common law robbery does not" }, { "docid": "928637", "title": "", "text": "PER CURIAM. Hosea Swopes pleaded guilty to unlawful possession of a firearm as a previously convicted felon, in violation of 18 U.S.C. § 922(g)(1). The district court concluded that Swopes was subject to an enhanced sentence under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). The ACCA requires a minimum 15-year prison sentence for a felon in possession of a firearm who has sustained three prior convictions for a violent felony or a serious drug offense. The district court cited Swopes’s prior Missouri convictions for unlawful use of a weapon, second-degree robbery, and first-degree robbery as three violent felonies. Swopes argued in his opening brief that unlawful use of a weapon, in violation of Mo. Rev. Stat. § 571.030.1(4), is not a violent felony. The government countered that United States v. Pulliam, 566 F.3d 784 (8th Cir. 2009), held that a violation of the statute qualifies categorically. After the case was submitted, Swopes moved for leave to file a supplemental brief to argue, based on intervening circuit precedent, that second-degree robbery is not a violent felony. The government did not oppose leave. Swopes points out that in United States v. Bell, 840 F.3d 963, 965-67 (8th Cir. 2016), a divided panel held that second-degree robbery in Missouri is not a “crime of violence” under the sentencing guidelines. As relevant here, “crime of violence” under the guidelines means an offense that has as an element “the use, attempted use, or threatened use of physical force against the person of another.” USSG § 4B1.2(a)(l). In Johnson v. United States, 559 U.S. 133, 130 S.Ct. 1265,176 L.Ed.2d 1 (2010), the Court held that the term “physical force” in a statute defining the term “violent felony” required the use of “violent force” — i.e., force that is capable of causing physical pain or injury to another person. Id. at 140, 130 S.Ct. 1265. This court in Bell reasoned that there is a reasonable probability that one could be convicted under the Missouri second-degree robbery statute without using, attempting to use, or threatening to use violent force, so second-degree robbery was not a" }, { "docid": "13990961", "title": "", "text": "the type of violent force described by the Supreme Court in Johnson.”' Id. at 966-67. To support its conclusion, the court pointed to a case in which “the Misspuri Court of Appeals- sustained a conviction [for second-degree robbery] based on the victim’s testimony that the defendant “bumped’ her shoulder and ‘yanked’her purse away from her[,]’ while ‘another witness testified that [the defendant] ‘nudged’ [the victim], and yet a ‘third witness testified that there was a ‘slight’ struggle’ over the purse.” See id. at 966 (quoting State v. Lewis, 466 S.W.3d 629, 631 (Mo. Ct. App. 2015)). Also relevant to the court’s decision was the fact that “the victim did not testify [that] the slight struggle caused her any pain, or that she was injured by the incident.” Id. The Eighth Circuit therefore concluded that “there is at least a ‘reasonable probability’ Missouri could apply its statute (or already has) to conduct falling short of violent force.” id (quoting Moncrieffe, 133 S.Ct. at 1685). Other circuits have similarly held that, when a state’robbery statute criminalizes minimal force, such as the force incidental to purse-snatching, a conviction under that statute is not a “crime of violence” under the guidelines’ force clause or a “violent felony” under the ACCA force clause. See United States v. Mulkern, 854 F.3d 87, 93 (1st Cir. 2017) (holding that a state conviction for robbery in Maine was not a violent felony under the ACCA because “Maine’s highest court recognizes that ‘any physical force’ suffices to satisfy the ‘physical force’ element [of the robbery statute],” including “ ‘the mere act of snatching a purse from the hand of a victim’ .,., even if the robber never made ‘direct bodily contact’ with the victim”) (emphasis in original); United States v. Gardner, 823 F.3d 793, 803-04 (4th Cir. 2016) (holding that a conviction under the North Carolina robbery statute did not qualify as a violent felony under the ACCA in light of decisions from the North Carolina Court of Appeals holding “that a defendant’s act of pushing the victim’s hand off of a carton of cigarettes was sufficient ‘actual force’" }, { "docid": "10630188", "title": "", "text": "Missouri courts’ interpretation of the elements of second-degree robbery. See id. at 138, 130 S.Ct. 1265 (“We are .... bound by the [state] Supreme Court’s interpretation of state law, including its determination of the elements of [the state statute.]”); see also Western Heritage Ins. Co. v. Asphalt Wizards, 795 F.3d 832, 837 (8th Cir. 2015) (“[W]e follow the decisions of Missouri’s intermediate courts when they constitute the best evidence of Missouri law.”). Moreover, when our focus is on the generic elements of the offense—as is the case here—rather than a specific defendant’s conduct, we must consider the lowest level of conduct that may support a conviction under the statute. See Moncrieffe v. Holder, - U.S. -, 133 S.Ct. 1678, 1684, 185 L.Ed.2d 727 (2013) (“Because we examine what the state conviction necessarily involved, not the facts underlying the case, we must presume that the conviction ‘rested upon [nothing] more than the least of th[e] acts’ criminalized, and then determine whether even those acts [would qualify as a crime of violence].”) (quoting Johnson, 559 U.S. at 137, 130 S.Ct. 1265). Although the “theoretical possibility” that a state may apply its statute to conduct falling short of violent force is not enough to disqualify a conviction, a “realistic probability” will suffice. See id. at 1685 (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007)). A Missouri court upheld a conviction for second-degree robbery in at least one situation where a defendant’s conduct appears to have fallen short of using “force capable of causing physical pain or injury to another person.” Johnson, 559 U.S. at 140, 130 S.Ct. 1265. In State v. Lewis, the Missouri Court of Appeals sustained a conviction based on the victim’s testimony that the defendant “‘bumped’ her shoulder and ‘yanked’ her purse away from her[,]” while “another witness testified that [the defendant] ‘nudged’ [the victim],” and yet a “third witness testified that there was a ‘slight’ struggle” over the purse. 466 S.W.3d 629, 631 (Mo. Ct. App. 2015). Significantly, the victim- did not testify the slight struggle caused her any pain, or that" }, { "docid": "13990965", "title": "", "text": "the use, attempted use, or threatened use of “force capable of causing physical pain or injury to another person.” See Johnson, 559 U.S. at 140, 130 S.Ct. 1265. The level of force criminalized by the relevant state statutes in these cases is much greater than the level of force criminalized by the Ohio robbery statute. For example, in United States v. Harris, 844 F.3d 1260, 1266-68 (10th Cir. 2017), the Tenth Circuit held that a conviction under the Colorado robbery statute constituted a violent felony under the ACCA because the Colorado Supreme Court had explicitly held that “the gravamen of the offense of robbery is the violent nature of the taking.” Id. at 1267 (quoting People v. Borghesi, 66 P.3d 93, 100-01 (Colo. 2003)). In fact, the Tenth Circuit distinguished the level of force required by the Colorado statute from those state robbery statutes criminalizing a lower level of nonviolent force, such as the force inherent in purse-snatching incidents. See id. at 1267-68, 1268- n.6 (distinguishing the Colorado robbery statute from the state robbery statutes at issue in Bell, Gardner, and Eason). Other cases holding that the state robbery statute in question involved the use or threat' of violent forée have made similar findings. See United States v. Doctor, 842 F.3d 306, 308-12 (4th Cir. 2016) (holding that robbery in South Carolina is a violent felony under the ACCA based, in part, on the- fact that, unlike robbery statutes that criminalize purse-snatching incidents, “there is no indication that South Carolina robbery by violence can be committed with minimal actual force”), cert. denied, — U.S. —, 137 S.Ct. 1831, 197 L.Ed.2d 773 (2017) (Mem.); United States v. Priddy, 808 F.3d 676, 686 (6th Cir. 2015) (holding that robbery in Tennessee constitutes a violent felony under the ACCA because the statute specifically requires a showing of violence, which is defined as “physical force unlawfully exercised so as to injure, damage or abuse,” or a showing that the victim was in “fear of bodily injury and of present personal peril from violence offered or impending”), abrogated on other grounds by United States v." } ]

[ { "docid": "14132766", "title": "", "text": "beneficiary of the Allied-Slate contract. Under Erie principles state law provides the rule of decision in this- diversity case. Black-letter principles as to third-party beneficiaries were stated by the Illinois Supreme Court in Carson Pirie Scott & Co. v. Parrett, 346 Ill. 252, 257, 178 N.E. 498, 501 (1931) and have been quoted over and over again for the past 50 years: ... if a contract be entered into for a direct benefit of a third person not a party thereto, such third person may sue for breach thereof. The test is whether the benefit to the third person is direct to him or is but an incidental benefit to him arising from the contract. If direct he may sue on the contract; if incidental he has no right to recovery thereon. Application of the distinction between “direct” and “incidental” benefit is a function of the intent of the parties and must be made on a case-by-case basis. Vinylast Corp. v. Gordon, 10 Ill.App.3d 1043, 1049, 295 N.E.2d 523, 527 (1st Dist. 1973). More constructive than the direct-indirect dichotomy, which tends to be result-oriented rather than an analytical tool, is the recent reaffirmation in Midwest Concrete Products Co. v. LaSalle National Bank, 94 Ill.App.3d 394, 396, 49 Ill.Dec. 968, 418 N.E.2d 988, 990 (1st Dist. 1981): [I]nasmuch as people usually stipulate for themselves, and not for third persons, a strong presumption obtains in any given case that such was their intention, and that the implication to overcome that presumption must be so strong as to amount practically to an express declaration. • Certainly there was no such express declaration in this case. Nor were the circumstances of the Allied-Slate agreement such as to overcome the “strong presumption.” Illinois eases that have reached the opposite result typically involve fact situations like those in Gothberg v. Nemerovski, 58 Ill.App.2d 372, 385-86, 208 N.E.2d 12, 19-20 (1st Dist. 1965) (automobile liability insurance policy construed to make person injured by policyholder a third-party beneficiary); Kravitz v. Lake County, 62 Ill.App.3d 101, 104-05, 19 Ill.Dec. 611, 379 N.E.2d 126, 128-29 (2d Dist. 1978) (land purchasers" } ]

[ { "docid": "11504142", "title": "", "text": "conditions precedent to formation. The primary difference lies in the effect of a failure to satisfy the conditions. In the former, a contract exists but is unenforceable, whereas in the latter, a contract does not exist in the first place. 47. A condition precedent to performance relates solely to the parties’ obligation to perform and does not prevent the formation of a valid contract. McAnelly v. Graves, 126 Ill.App.3d 528, 532, 81 Ill.Dec. 677, 679, 467 N.E.2d 377, 379 (5th Dist.1984); see also Heritage Commons Partners v. Village of Summit, 730 F.Supp. 821, 823 (N.D.Ill.1990). 48. The conditions precedent of board approval and due diligence are conditions precedent to performance, and as such, when unsatisfied, an otherwise valid contract is rendered unenforceable. 49. In contrast, a condition precedent requiring the execution of definitive documentation is a condition precedent to formation, and thus, when unsatisfied, no contract exists in the first place. Ceres Ill., Inc. v. Illinois Scrap Processing, Inc., 114 Ill.2d 133, 143-44, 102 Ill.Dec. 379, 383, 500 N.E.2d 1, 5 (1986); Chicago Inv. Corp. v. Dolins, 107 Ill.2d 120, 127, 89 Ill.Dec. 869, 872, 481 N.E.2d 712, 715 (1985). 50.In ? determining the meaning of an agreement or a term of an agreement, the preferred meaning is that “which operates against the party who supplie[d] the words.” RESTATEMENT (SECOND) OF CONTRACTS § 206 (1981); see Larkin v. Sanelli, 213 Ill.App.3d 597, 603-04, 157 Ill.Dec. 681, 686, 572 N.E.2d 1145, 1150 (1st Dist.), appeal denied, 141 Ill.2d 543, 162 Ill.Dec. 491, 580 N.E.2d 117 (1991). As such, the agreement will be construed against Midway. 51. A corporation may properly condition the binding effect of a contract on the approval of its board of directors. A/S Apothekernes, 873 F.2d at 158; Empro, 870 F.2d at 425; Runnemede Owners, Inc. v. Crest Mortgage Corp., 861 F.2d 1053, 1055-56 (7th Cir.1988); Cinman v. Reliance Fed. Sav. & Loan Ass’n, 155 Ill.App.3d 417, 425-26, 108 Ill.Dec. 78, 84, 508 N.E.2d 239, 245 (1st Dist.), appeal denied, 116 Ill.2d 549, 113 Ill.Dec. 294, 515 N.E.2d 103 (1987). On October 8, Northwest properly conditioned the binding" }, { "docid": "9626303", "title": "", "text": "404, 414, 150 Ill.Dec. 510, 515, 563 N.E.2d 397, 402 (1990) (citing Kelsay v. Motorola, Inc., 74 Ill.2d 172, 186, 23 Ill.Dec. 559, 384 N.E.2d 353, 360 (1978)). “[T]he initial decision whether punitive damages may be imposed in a particular case in [Illinois] is a matter normally reserved for the trial judge.” Loitz, 138 Ill.2d at 414, 150 Ill.Dec. at 514, 563 N.E.2d at 401. See also J.I. Case Co. v. McCartin-McAuliffe Plumbing & Heating, 118 Ill.2d 447, 453, 114 Ill.Dec. 105, 108, 516 N.E.2d 260, 263 (1987). In making this decision, the trial court views all the evidence in the light most favorable to the party seeking punitive damages. See, e.g., Queen v. Behm, 58 Ill.App.3d 253, 255, 15 Ill.Dec. 698, 699, 373 N.E.2d 1382, 1383 (2d Dist.1978). Decisions to direct verdicts in Illinois are generally reviewed de novo, with the appellate court applying the same standard as does the trial court. See Thomas v. Nelson Bros. Furniture, 167 Ill.App.3d 49, 53, 117 Ill.Dec. 727, 729-30, 520 N.E.2d 1078, 1080-81 (1st Dist.1988). Notwithstanding this general rule, some Illinois intermediate appellate decisions have applied a more lenient standard when reviewing trial court decisions to direct verdicts on punitive damages counts, examining the trial court’s ruling only to determine whether or not the trial judge abused her discretion in directing a verdict for the defendant on the count seeking punitive damages or, alternatively, allowing the jury to consider the question. See, e.g., PCx Corp. v. Ross, 209 Ill.App.3d 530, 539-40, 154 Ill.Dec. 311, 317, 568 N.E.2d 311, 317 (1st Dist.1991) (“A request for punitive damages is addressed to the sound discretion of the trial court and a decision to deny such damages will not be reversed absent an abuse of that discretion.”); Motsch v. Pine Roofing Co., 178 Ill.App.3d 169, 177, 127 Ill.Dec. 383, 388, 533 N.E.2d 1, 6 (1st Dist.1988) (“[W]here a plaintiff’s factual allegations are sufficient to state a claim for punitive damages, the trial court has discretion to submit the issue to the jury, and the court’s determination will not be disturbed absent an abuse of that discretion.”);" }, { "docid": "5169878", "title": "", "text": "143 Ill.App.3d 1033, 1036, 98 Ill.Dec. 150, 493 N.E.2d 1171 (2d Dist.1986). An express grant is not required to create such an equitable lien, it need only appear from the document that the parties intended that the property be held, given or transferred as security. Id. at 1036, 98 Ill.Dec. 150, 493 N.E.2d 1171; Hibernian Banking Ass’n v. Davis, 295 Ill. 537, 544, 129 N.E. 540 (1920). An equitable lien has also been recognized when it was promised orally rather than created by a written instrument, so long as the intent to pledge the property as security was apparent from the facts and circumstances. Grigaitis v. Gaidauskis, 214 Ill.App. 111, 117 (1st Dist.1919). An equitable lien generally has its basis in an express or implied agreement to make certain property security for a debt or other obligation. Trustees of Zion Methodist Church v. Smith, 335 Ill.App.233, 236, 81 N.E.2d 649 (4th Dist.1948) (intent to pledge property as security for debt, lien will be recognized in equity); Simpson v. Wrate, 337 Ill. 520, 169 N.E. 324 (1929) (theory of equitable lien has its foundation in contract, express or implied). Thus, an express agreement evidencing an intent of the parties not to provide for an equitable lien will preclude a court from creating one by implication. P.H. Broughton & Sons, Inc. v. Muller & Allen Realty Co., 40 Ill.App.3d 776, 353 N.E.2d 30 (4th Dist.1976); Hamilton v. Downer, 46 Ill.App. 541 (1892), aff'd, 152 Ill. 651, 38 N.E. 733 (1894) (a promise to pay out of the proceeds of any property gives no lien on the property). The Illinois courts require three essential elements in granting an equitable lien: (1) a debt, duty or obligation owed by one party to another; (2) a res to which the obligation attaches, In re Brass Kettle Restaurant, Inc., 790 F.2d 574, 575 (7th Cir.1986); W.E. Erickson Constr., Inc. v. Congress-Kenilworth Corp., 132 Ill.App.3d 260, 270, 87 Ill.Dec. 536, 477 N.E.2d 513 (1st Dist.1985), aff'd, 115 Ill.2d 119, 104 Ill.Dec. 676, 503 N.E.2d 233 (1986); Jacobsen v. Conlon, 14 Ill.App.3d 306, 308, 302 N.E.2d 471 (1st" }, { "docid": "3143831", "title": "", "text": "553, 115 Ill.Dec. 409, 517 N.E.2d 1095 (1987). A-Abart, as we have related above, did not have an enforceable contract with Emerson to buy the 552 ceiling fans. The inability to establish the existence of a valid and enforceable contract is obviously fatal to a claim of intentional interference with contractual relations. That leaves A-Abart’s intentional-interference-with-prospective-eco-nomic-advantage claim. The elements of this tort are: “(1) plaintiff must have a reasonable expectation of entering a valid business relationship; (2) defendant must purposely interfere and defeat this legitimate expectancy; and (3) defendant’s actions must cause harm to plaintiff.” Kurtz v. Illinois National Bank, 179 Ill.App.3d 719, 128 Ill.Dec. 562, 567, 534 N.E.2d 1007, 1012 (4th Dist.), app. denied, 126 Ill.2d 559, 133 Ill.Dec. 669, 541 N.E.2d 1107 (1989) (citations omitted). Under Illinois law, a party’s interest in prospective economic advantage, however, receives less protection than its enforceable contract rights: “An individual with a prospective business relationship has a mere expectancy of future economic gain; a party to a contract has a certain and enforceable expectation of receiving the benefits of the contract. When a business relationship affords the parties no enforceable expectations, but only the hope of ... benefits, the parties must allow for the rights of others. They therefore have no cause of action against a bona fide competitor unless the circumstances indicate unfair competition, that is, an unprivileged interference with prospective advantage.” Fishman v. Estate of Wirtz, 807 F.2d 520, 546 (7th Cir.1987) (quoting Belden Corp. v. InterNorth, Inc., 90 Ill.App.3d 547, 552, 45 Ill.Dec. 765, 769, 413 N.E.2d 98, 102 (1st Dist.1980)). Illinois courts have adopted the formulation of the Restatement (Second) of Torts, § 768 (1979) in defining unlawful competition. Fishman, 807 F.2d at 547 (citing Galinski v. Kessler, 134 Ill.App.3d 602, 610, 89 Ill.Dec. 433, 439, 480 N.E.2d 1176, 1182 (1st Dist.1985)). Under that formulation, “(1) [o]ne who intentionally causes a third person not to enter into a prospective contractual relation with another who is his competitor ... does not interfere improperly with the other’s relation if (a) the relation concerns a matter involved in the competition between" }, { "docid": "3759956", "title": "", "text": "their husbands and the defendants. They argue that if defendants had fulfilled their obligation to the Club Members, they would have benefitted from the commensurate salary increase received by their husbands. If a contract is entered into for a direct benefit of a third person not a party to the agreement, that person may sue for breach of the contract. Carson Pirie Scott & Co. v. Parrett, 346 Ill. 252, 178 N.E. 498 (1931); Bernstein v. Lind-Waldock & Co., 153 Ill.App.3d 108, 110, 106 Ill.Dec. 323, 325, 505 N.E.2d 1114, 1116 (1st Dist.1987). To determine whether one is a third-party beneficiary to a contract, the court must look to the contract itself and determine the intent of the parties. 155 Harbor Drive Condominium Ass’n v. Harbor Point Inc., 209 Ill.App.3d 631, 646, 154 Ill.Dec. 365, 375, 568 N.E.2d 365, 375 (1st Dist.1991). The burden of proof is properly shouldered by the party trying to establish third-party beneficiary status— the wives. Id. The wives have not met their burden in this regard. As set forth previously, the contract makes almost no reference to them, let alone stating they are third-party beneficiaries. Even the other materials make no such reference. The wives have pointed to nothing other than their self-serving statements in the complaint that they were necessary to the agreement in one form or another. Furthermore, the fact that they received some indirect benefit as a result of a benefit being conferred upon their husbands is too tenuous a relationship upon which to base third-party beneficiary status. If the law were otherwise, every family member would be a third-party beneficiary simply by being the relative of a contracting party. The court has examined plaintiffs' other arguments and find them also without merit. CONCLUSION In sum, the wives are neither parties to nor third-party beneficiaries of the contract. As a result, they have no right to enforce its provisions as they lack standing to do so. Therefore this court dismisses all claims by Georgiann Serpe, Danielle Korbi-las, Ernestine Rekowski, and Mary Szpe-kowski pursuant to Federal Rule of Civil Procedure 12(b)(1). IT IS" }, { "docid": "11504140", "title": "", "text": "e.g., Morin Bldg. Prods. Co. v. Baystone Constr., Inc., 717 F.2d 413, 416 (7th Cir.1983) (in interpreting a condition in a contract, the ultimate touchstone of decision must be the intent of the parties). 42. The Court has found that Northwest established that the parties intended to create conditions at the time of contracting. (Findings of Fact, ¶ 148 supra). 43. “Conditions precedent ... are not favored by Illinois courts, and contracts will not be construed as having conditions precedent unless required to do so by plain, unambiguous language.” Boulevard Bank Nat’l Ass’n v. Philips Medical Sys. Int’l, B.V., 811 F.Supp. 357, 365 (N.D.Ill), amended, 827 F.Supp. 510 (N.D.Ill.1993), aff'd, 15 F.3d 1419 (7th Cir.1994); A.A. Conte, Inc. v. Campbell-Lowrie-Lautermilch Corp., 132 Ill.App.3d 325, 329, 87 Ill.Dec. 429, 432, 477 N.E.2d 30, 33 (1st Dist.1985). 44. The Court has already found that the transcript of the October 8 hearing indicates that there were three conditions precedent regarding the Back-End transaction. (Findings of Fact, ¶¶ 166, 167, 168, 174, 175, 176, 244, 249, 253, 254, and 265 supra). Further, the Court has already found that these conditions precedent were unsatisfied. (Findings of Fact, ¶¶ 148 and 150 supra). 45. Under Illinois law, “a condition precedent is one which must be performed before a contract becomes effective or which is to be performed by one party to an existing contract before the other party is obligated to perform. If the condition remains unsatisfied, the obligations of the parties are at an end.” Lester v. Resolution Trust Corp., 994 F.2d 1247, 1254 (7th Cir.1993) (citing McKee v. First Nat’l Bank of Brighton, 220 Ill. App.3d 976, 983, 163 Ill.Dec. 389, 394, 581 N.E.2d 340, 345 (4th Dist.1991), appeal denied, 143 Ill.2d 639, 167 Ill.Dec. 401, 587 N.E.2d 1016 (1992)). See also Ansvar America Ins. Co. v. Hallberg, 209 Ill.App.3d 206, 210, 154 Ill.Dec. 77, 79, 568 N.E.2d 77, 79 (1st Dist.1991); Hardin, Rodriguez & Boivin Anesthesiologists, Ltd. v. Paradigm Ins. Co., 962 F.2d 628, 633 (7th Cir.1992). 46. ' There are at least two types of conditions precedent: conditions precedent to performance and" }, { "docid": "4313965", "title": "", "text": "times with Perry). When working with Bisline, Russell reported directly to him and received orders and directions only from him and other PPG personnel. Moreover, Russell admitted in his deposition that he was under Bisline’s, not his labor foreman’s, supervision, “took [his] orders from” Bisline, and considered Bisline his supervisor. Russell Deposition at 20-23. Russell’s deposition shows that Bisline’s authority over him was exclusive: Q: When you worked for Walt [Bisline], did you report in the ordinary way or did you go directly to where he had told you to go? A: I went directly where Walt told me to. Q: When you got there in the morning, was he there? A: Always. Q: Did you work without him being there? A: No. Q: Were there ever occasions when you were supposed to be working for Walt and he was not there for some reason, then would you go back to your ordinary job or would you wait for him to arrive? A: I would wait for Walt. I was assigned to him. Q: When you were assigned to him. Could your foreman tell you to work for somebody else if you had some free time? A: No. Q: Why was that? A: Because I was assigned to him. Whenever he wanted me, I was to be available. Russell Deposition at 32. These facts strongly support a finding that PPG, through Bisline, had “actual control over [Russell’s] manner of doing the work.” Mosley v. Northwestern Steel and Wire Co:, 76 Ill.App.3d 710, 31 Ill.Dec. 853, 861, 394 N.E.2d 1230, 1238 (1st Dist.1979). Russell also argues that he could not have been a loaned employee of PPG because PPG did not have the power to terminate his employment with Perry. This argument requires too strict a construction of the term “discharge.” Illinois law does not require PPG to have the power to terminate Russell’s employment altogether; it requires only that PPG have the power to discharge Russell from his work with PPG. In Evans v. Abbott Products, Inc., 150 Ill.App.3d 845, 104 Ill.Dec. 78, 502 N.E.2d 341 (1st Dist.1986), for example," }, { "docid": "11504373", "title": "", "text": "Galesburg Clinic Ass’n, 201 Ill.App.3d 847, 851, 147 Ill.Dec. 853, 856, 560 N.E.2d 1, 4 (3d Dist.1990), appeal denied, 136 Ill.2d 556, 153 Ill.Dec. 386, 567 N.E.2d 344 (1991); IK Corp. v. One Financial Place Partnership, 200 Ill.App.3d 802, 819, 146 Ill.Dec. 198, 209, 558 N.E.2d 161, 172 (1st Dist.), appeal denied, 135 Ill.2d 556, 151 Ill.Dec. 383, 564 N.E.2d 838 (1990); Galinski v. Kessler, 134 Ill. App.3d 602, 608, 89 Ill.Dec. 433, 437, 480 N.E.2d 1176, 1180 (1st Dist.), appeal denied, 108 Ill.2d 562 (1985); Parkway Bank & Trust Co. v. City of Darien, 43 Ill.App.3d 400, 402-03, 2 Ill.Dec. 234, 237, 357 N.E.2d 211, 214 (2d Dist.1976)); (3) Northwest’s interference must have been intentional; and (4) Northwest’s interference must have caused Southwest, as the third party, to refuse to enter into the prospective business relationship with Midway (see McIntosh, 539 F.Supp. at 1193; DP Service, 508 F.Supp. at 167-68). 13. The Court concludes that Northwest did not interfere with Midway’s prospective business relationship with Southwest. 14. Midway argues that Northwest’s alleged fraudulent misrepresentations constituted “interference” sufficient to support its claim for tortious interference with a prospective business advantage in that Midway would have selected Southwest’s proposal over Northwest’s proposal but for the alleged misrepresentations. However, the Court has already found that Northwest did not commit the alleged fraudulent misrepresentations. See Count V. The Court has also found that Northwest did not commit negligent misrepresentations. See Count VII. In the absence of any misrepresentations, Midway’s claim fails due to a lack of evidence of interference on the part of Northwest. 15. The Court concludes that Northwest’s conduct that constituted the alleged interference (ie. the alleged misrepresentations) was not directed toward Southwest. 16. “A party cannot be held liable ... for interfering with his own prospective business relationship.” Laser, 573 F.Supp. at 994. 17. The Court concludes that the statements which constituted the- alleged misrepresentations were communicated directly to Midway. The evidence is uncontroverted that Northwest did not make any statements to Southwest. (Findings of Fact, ¶¶ 15 and 16 supra). Thus, the Court concludes that Midway failed to demonstrate" }, { "docid": "11504341", "title": "", "text": "Ill.2d 540, 110 Ill.Dec. 455, 511 N.E.2d 427 (1987); Union Nat’l Bank, 134 Ill.App.3d at 990, 89 Ill.Dec. at 752, 481 N.E.2d at 303; Lewis, 48 Ill.App.3d at 284, 6 Ill.Dec. at 579, 363 N.E.2d at 108. The Seventh Circuit has also recently foUowed this standard. Essex Ins. Co. v. Stage 2, Inc., 14 F.3d 1178, 1181 (7th Cir.1994). Therefore, based on the foregoing, the Court concludes that under Illinois law, the clear, precise, and unequivocal evidence standard is the appropriate standard for equitable estoppel. However, due to the conflicting case law, the Court will nevertheless evaluate Midway’s claim for equitable estoppel under aU three of the aforementioned standards. The Court concludes that Midway has failed to prove its claim for equitable estoppel under any of the three standards. 18. “Estoppel refers to reUance by one party on the word or conduct of another so that the party changes his position and subsequently suffers harm. It arises whenever one by his conduct, affirmative or negative, intentionaUy or through culpable neghgence, induces another to beheve and have confidence in certain material facts, and the latter having the right to do so, rehes and acts thereon, and is as a reasonable and inevitable consequence, misled to his injury.” Gary-Wheaton Bank, 130 Ill.App.3d at 95-96, 85 Ill.Dec. at 186-87, 473 N.E.2d at 554-55. See also Byron Community Unit Sch. Dist. No. 226 v. Dunham-Bush, Inc., 215 Ill.App.3d 343, 348, 158 Ill.Dec. 990, 993, 574 N.E.2d 1383, 1386 (2d Dist.1991); Lindahl v. City of Des Plaines, 210 Ill.pp.3d 281, 295, 154 Ill.Dec. 857, 866, 568 N.E.2d 1306, 1315 (1st Dist.1991); Stoller, 199 Ill.App.3d at 684, 145 Ill.Dec. at 675, 557 N.E.2d at 445. 19. Fraudulent intent is not necessary to estoppel. Northern Trust Co. v. Oxford Speaker Co., 109 Ill.App.3d 433, 439, 65 Ill.Dec. 113, 117, 440 N.E.2d 968, 972 (1st Dist.1982); In re Maxwell, 40 B.R. 231, 239 (N.D.Ill.1984). Rather, estoppel is appropriate against a person who adopts a position which reasonably misleads someone into detrimental reUance, regardless of the intent of his actions, if to hold otherwise would have an unjust effect." }, { "docid": "12409058", "title": "", "text": "as first-party insurance. The second point is somewhat more difficult. As the Illinois Appellate Court observed in Weeks v. Aetna Ins. Co., 150 Ill.App.3d 90, 103 Ill.Dec. 328, 329, 501 N.E.2d 349, 350 (2d Dist.1986), prior to a 1977 amendment to § 155 it would have been clear that Liberty’s victory on the principal claim also disposed of the § 155 claim. But in 1977, the statute was amended, and the General Assembly specifically deleted the language limiting recovery to a “prevailing party.” See Act of Sept. 20, 1977, P.A. 80-814. The Weeks court found it unnecessary to decide whether the change in language had the effect of deleting the former requirement. Other courts have refused to grant relief under the post-amendment version of the statute, one finding that the plaintiffs’ failure to succeed rendered the request moot, Purdy Co. v. Transportation Ins. Co., 209 Ill.App.3d 519, 154 Ill.Dec. 318, 324, 568 N.E.2d 318, 324 (1st Dist.1991), and another stating that plaintiffs have no claim under § 155 unless they can show that they had a legitimate claim for coverage under their policy, Purlee v. Liberty Mut. Fire Ins. Co., 260 Ill.App.3d 11, 197 Ill.Dec. 430, 445, 631 N.E.2d 433, 448 (5th Dist.1994). See also Perfection Carpet, Inc. v. State Farm Fire & Cas. Co., 259 Ill.App.3d 21, 197 Ill.Dec. 28, 630 N.E.2d 1152 (1st Dist.1994). We do not condone Liberty’s sloth in responding to PSSA’s request for a defense. PSSA tendered its defense to Liberty in November 1992. Trial on the underlying claim was set for March 1994, yet Liberty did not formally communicate its denial of coverage to PSSA until April 1994, a year and a half after tender and a month after the trial was set. Even then, Liberty did not write directly to PSSA, but instead sent a letter to Axelrod. Only after PSSA wrote again, nearly two years after its original inquiry, did Liberty bother to respond directly to it. Nevertheless, as both Purdy and Purlee indicate, a remedy under § 155 is not available here for PSSA. The Purdy court evidently accepted Liberty’s position" }, { "docid": "59259", "title": "", "text": "Title VI purposes by the Consent Decree and the Desegregation Plan and that, for school segregation issues, the Consent Decree essentially prescribes the District’s current Title VI obligations with respect to .the assignment of principals. Appellee Appendix at 376. Because we have concluded that the 1977 Plan was supplanted by the Decree, we need not resolve the Principals’ second argument, which is that the district court should have found that they were intended beneficiaries of the 1977 Plan. We note, however, that to the extent the Principals claim they may enforce the Plan as third-party beneficiaries, they appear to face an uphill climb under Illinois law, which follows a strict “intent to benefit rule.” See Disposal Corp. v. John Sexton Contractors Co., 168 Ill.2d 355, 213 Ill.Dec. 665, 669, 659 N.E.2d 1312, 1316 (1995). See also Keenan v. Board of Educ., 812 F.Supp. at 784-85; Schnettler v. Board of Educ., 1994 WL 142958, at *7 (both cases concluding that the Principals were incidental, not third-party, beneficiaries of the Plan). Under that test, it is not enough that a party receive merely an incidental benefit. See People ex rel. Resnik, v. Curtis & Davis, Architects & Planners, Inc., 78 Ill.2d 381, 36 Ill.Dec. 338, 340, 400 N.E.2d 918, 920 (1980). Instead, “third-party beneficiary status is a matter of divining whether the contracting parties intended to confer a benefit upon a nonparty to their agreement.” Id. There is a strong presumption that parties intend contract provisions to apply only to themselves. 155 Harbor Drive Condominium Assoc. v. Harbor Point Inc., 209 Ill.App.3d 631, 154 Ill.Dec. 365, 375, 568 N.E.2d 365, 375 (1991). In fact, the presumption is so strong that in order to overcome it, there must “practically be an express declaration.” Id. Because the Plan was “developed voluntarily by the Chicago School District in order to assure its compliance with Title VI,” Appellee Appendix at 65, the primary beneficiaries of the Plan were necessarily the Chicago schoolchildren themselves, who are the participants in a federally funded program that Title VI protects. On the other hand, we must in fairness recognize that" }, { "docid": "11025295", "title": "", "text": "from issue preclusion to claim preclusion. See Luckett v. Human Rights Commission, 210 Ill.App.3d 169, 175, 155 Ill.Dec. 6, 10, 569 N.E.2d 6, 10 (1st Dist.1989); Pelon v. Wall, 262 Ill.App.3d 131, 135, 199 Ill.Dec. 546, 549, 634 N.E.2d 385, 388 (2d Dist.1994). One of these appellate districts also has continued to apply State Life Insurance, producing an intra-court conflict. See Illinois Founders Insurance Co. v. Guidish, 248 Ill.App.3d 116, 120, 187 Ill.Dec. 845, 849, 618 N.E.2d 436, 440 (1st Dist.1993). Another district hews to the traditional approach. Shaw v. Citizens State Bank of Shipman, 185 Ill.App.3d 79, 81, 133 Ill.Dec. 266, 268, 540 N.E.2d 1132, 1134 (4th Dist.1989). Just as the judges who decided Ball-weg, Luckett, and Pelón seemed unaware of cases such as State Life Insurance (and of comparable decisions in the great majority of other states), so the judges who decided Guidish and Shaw seemed unaware of Ball-weg, Luckett, and Pelón. This is an unsatisfactory situation, even worse than the confusion described and deplored in Davis and Hagee concerning other aspects of the law of preclusion in IUinois. To be blunt, we have no idea what the law of IUinois is on the question whether a pending appeal destroys the claim preclusive effect of a judgment. Under the circumstances, a stay rather than immediate decision is the prudent course. A federal judge confronted with duphcative Utigation need not barge ahead on the off-chance of beating the state court to a conclusion. It is sensible to stay proceedings until an earher-filed state case has reached a conclusion, and then (but only then) to dismiss the suit outright on grounds of claim preclusion. Colorado River Water Conservation District v. United States, 424 U.S. 800, 817-21, 96 S.Ct. 1236, 1246-48, 47 L.Ed.2d 483 (1976); LaDuke v. Burlington Northern R.R., 879 F.2d 1556 (7th Cir.1989). See also Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 16, 25-26, 103 S.Ct. 927, 941-42, 74 L.Ed.2d 765 (1983); Gonzalez v. Cruz, 926 F.2d 1 (1st Cir.1991); Interstate Material Corp. v. Chicago, 847 F.2d 1285 (7th Cir.1988); Telesco v. Telesco Fuel" }, { "docid": "5466005", "title": "", "text": "performed; and (6) delivery of the trust property to the trustee. In re Estate of Zukerman, 218 Ill.App.3d 325, 329, 161 Ill.Dec. 121, 124, 578 N.E.2d 248, 251 (1st Dist.), appeal denied, 142 Ill.2d 654, 164 Ill.Dec. 929, 584 N.E.2d 141 (1991). Express trusts are based on the settlor’s intent and an agreement between the settlor and the trustee, and do not require judicial action for their existence. Williams v. Rock River Sav. and Loan Ass’n, 51 Ill.App.2d 5, 15, 200 N.E.2d 848, 853 (2d Dist.1964); see also La Throp v. Bell Fed. Sav. & Loan Ass’n, 68 Ill.2d 375, 381, 12 Ill.Dec. 565, 568, 370 N.E.2d 188, 191 (1977) (the expressed intention to create a relationship constituting a trust is critical to creation of a trust), cert. denied, 436 U.S. 925, 98 S.Ct. 2818, 56 L.Ed.2d 768 (1978). The trustee then holds the legal title to the trust property for the benefit of the beneficiaries, who hold the equitable title to the trust property pursuant to the trust agreement. Merchants Nat’l Bank of Aurora v. Frazier, 329 Ill.App. 191, 200, 67 N.E.2d 611, 617 (2d Dist.1946); see also Krensky v. DeSwarte, 335 Ill.App. 435, 442, 82 N.E.2d 168, 171 (1st Dist.1948) (in an express trust, legal title is vested in the trustee and equitable title is vested in the beneficiary). The trustee has certain fiduciary duties with respect to the trust property that must be exercised in a manner consistent with the trust agreement. Harris Trust and Sav. Bank v. Wanner, 393 Ill. 598, 606, 66 N.E.2d 867, 871 (1946); In re Estate of Halas, 209 Ill.App.3d 333, 344, 154 Ill.Dec. 170, 178, 568 N.E.2d 170, 178 (1st Dist.1991); accord Home Fed. Sav. and Loan Ass’n of Chicago v. Zarkin, 89 Ill.2d 232, 239, 59 Ill.Dec. 897, 901-02, 432 N.E.2d 841, 845-46 (1982) (“The fiduciary obligation of loyalty flows not from the trust instrument but from the relationship of trustee and beneficiary. The essence of this relationship is that the former is charged with equitable duties toward the latter”). Illinois courts do not discuss constructive trusts in terms of" }, { "docid": "18433100", "title": "", "text": "identified by examining the nature of the relationship between the parties involved. Although the exact nature of the relationship between plaintiffs and defendant O’Sullivan is not made clear in any of the papers filed before the Court, we are not prepared to hold on this record that the assistant warden of the Pontiac facility does not, as a matter of law, owe any affirmative duty to the correctional officers serving that prison. Indeed, at common law, the “special relationship” between an employee and his superiors imposes upon those superiors the duty to protect employees from the reasonably foreseeable attacks of third persons. See generally Hosein v. Checker Taxi Co., 95 Ill.App.3d 150, 154, 50 Ill.Dec. 460, 419 N.E.2d 568 (1st Dist. 1981); Willie Cross v. Chicago Housing Authority, 74 Ill.App.3d 921, 925, 30 Ill.Dec. 544, 393 N.E.2d 580 (1st Dist. 1979); Whalen v. Lang, 71 Ill.App.3d 83, 85, 27 Ill.Dec. 324, 389 N.E.2d 10 (3d Dist. 1979); Restatement (Second) of Torts, § 302B Comment e(B), 314A Comment A (1965). Whether defendant O’Sullivan satisfied such an obligation or whether his alleged inaction was so egregious under the circumstances that this claim rises to the level of a constitutional deprivation are factual questions which are more appropriately resolved on a motion for summary judgment or at trial. The relationship between plaintiffs and defendants Shehorn and Lowery, fellow correctional officers at Pontiac, on the other hand, is not sufficient as a matter of law to support a § 1983 claim. Plaintiffs have not identified and this Court will not imply any affirmative duty on these defendants in the absence of the kind of special relationship between the parties required by state tort law. See Fancil v. Q. S. E. Foods, Inc., 60 Ill.2d 552, 559-60, 328 N.E.2d 538 (1975); Rstmt. (Second) of Torts, § 314A (1965). A relationship between parties which does not support a tort claim under state law cannot support a § 1983 claim for which relief can be granted. As a practical matter, imposing on those defendants a legal duty to warn all other correctional officers every time a rumor" }, { "docid": "4313964", "title": "", "text": "PPG for the number of hours Russell worked for PPG on the project, and the amount Perry charged included the salary Perry paid to Russell plus a profit factor. Such an arrangement undercuts Russell’s argument. See Highway Ins. Co. v. Sears, Roebuck & Co., 92 Ill.App.2d 214, 235 N.E.2d 309, 313 (1st Dist.1968) (in finding loaned employee relation, court noted that general employer had resigned full control of plaintiff for time being, and was merely “conduit” through which employees were paid); see also Allen-Garcia, 166 N.E. at 81. Russell further contends that he was not a loaned employee because he was not “wholly free” from Perry’s control and “wholly subject” to PPG’s control during the relevant time period. Richard v. Illinois Bell Telephone Co., 66 Ill.App.3d 825, 23 Ill.Dec. 215, 222, 383 N.E.2d 1242, 1249 (1st Dist.1978); Freeman, 4 Ill.Dec. at 872, 360 N.E.2d at 1247. The facts indicate otherwise. Walt Bisline told Russell when to report to work, and set his hours and break times (which often differed from his usual hours and break times with Perry). When working with Bisline, Russell reported directly to him and received orders and directions only from him and other PPG personnel. Moreover, Russell admitted in his deposition that he was under Bisline’s, not his labor foreman’s, supervision, “took [his] orders from” Bisline, and considered Bisline his supervisor. Russell Deposition at 20-23. Russell’s deposition shows that Bisline’s authority over him was exclusive: Q: When you worked for Walt [Bisline], did you report in the ordinary way or did you go directly to where he had told you to go? A: I went directly where Walt told me to. Q: When you got there in the morning, was he there? A: Always. Q: Did you work without him being there? A: No. Q: Were there ever occasions when you were supposed to be working for Walt and he was not there for some reason, then would you go back to your ordinary job or would you wait for him to arrive? A: I would wait for Walt. I was assigned to him. Q: When" }, { "docid": "3759955", "title": "", "text": "to the contract at issue here. Additionally, the supposed contract between the wives and defendants lack mutuality. Mutuality of obligation means either both parties are bound to the agreement or neither is bound. Carrico v. Delp, 141 Ill.App.3d 684, 687-88, 95 Ill.Dec. 880, 882-83, 490 N.E.2d 972, 974-75 (4th Dist.1986). Both parties must be liable to the other for failure to perform his or her obligation. Here defendants have agreed to make the Club Members Regional Vice Presidents if they satisfy the conditions of membership. However, the wives have promised to do nothing. They cannot be sued by the defendants for failure to support their husbands, and the court holds they cannot sue to enforce the contract. Without any promise, there is no mutuality of obligation to support this contract. For all of the above-stated reasons, the wives lack standing to challenge the defendants’ failure to promote their husbands to sales representatives. Alternatively, the wives maintain that even if they are not parties to the contract they are nonetheless third-party beneficiaries to the agreement between their husbands and the defendants. They argue that if defendants had fulfilled their obligation to the Club Members, they would have benefitted from the commensurate salary increase received by their husbands. If a contract is entered into for a direct benefit of a third person not a party to the agreement, that person may sue for breach of the contract. Carson Pirie Scott & Co. v. Parrett, 346 Ill. 252, 178 N.E. 498 (1931); Bernstein v. Lind-Waldock & Co., 153 Ill.App.3d 108, 110, 106 Ill.Dec. 323, 325, 505 N.E.2d 1114, 1116 (1st Dist.1987). To determine whether one is a third-party beneficiary to a contract, the court must look to the contract itself and determine the intent of the parties. 155 Harbor Drive Condominium Ass’n v. Harbor Point Inc., 209 Ill.App.3d 631, 646, 154 Ill.Dec. 365, 375, 568 N.E.2d 365, 375 (1st Dist.1991). The burden of proof is properly shouldered by the party trying to establish third-party beneficiary status— the wives. Id. The wives have not met their burden in this regard. As set forth previously," }, { "docid": "950592", "title": "", "text": "is not the plaintiffs employer. Unfortunately, the parties have not cited and this Court, through its own research efforts, cannot find an Illinois Supreme Court case addressing the issue of whether a supervisory employee can be held personally liable for retaliatory employment practices. In Morton v. Hartigan, 145 Ill.App.3d 417, 99 Ill.Dec. 424, 426-27, 495 N.E.2d 1159, 1161-62 (1st Dist.1986), the court held that a plaintiffs supervisor was not a proper party defendant in a retaliatory discharge action because the supervisor was not the plaintiffs employer, but rather the employer’s agent. See also Balla v. Gambro, Inc., 203 Ill.App.3d 57, 148 Ill.Dec. 446, 450, 560 N.E.2d 1043, 1047 (1st Dist.1990), rev’d on other grounds, 145 Ill.2d 492, 164 Ill.Dec. 892, 584 N.E.2d 104 (1991); Motsch v. Pine Roofing Co., Inc., 178 Ill.App.3d 169, 127 Ill.Dec. 383, 388, 533 N.E.2d 1, 6 (1st Dist.1988). The Morton court derived support for its decision from the Illinois Supreme Court’s admonition against expanding the tort of retaliatory discharge in Barr v. Kelso-Burnett Co., 106 Ill.2d 520, 88 Ill.Dec. 628, 478 N.E.2d 1354 (1985). The Second District has declined to follow the First District’s holding in Morton. See Bragado v. Cherry Electric Products Corp., 191 Ill.App.3d 136, 138 Ill.Dec. 476, 480, 547 N.E.2d 643, 647 (2nd Dist.1989); Fellhauer v. City of Geneva, 190 Ill.App.3d 592, 137 Ill.Dec. 846, 851, 546 N.E.2d 791, 796 (2nd Dist.1989), rev’d on other grounds, 142 Ill.2d 495, 154 Ill.Dec. 649, 568 N.E.2d 870 (1991). The Fellhauer court acknowledged the Illinois Supreme Court’s admonition in Barr against the undue expansion of the tort of retaliatory discharge. Id. However, the Fellhauer court noted that the Illinois Supreme Court’s decision in Barr addressed the definition of what constituted a clearly mandated public policy for the purposes of defining the scope of the tort of retaliatory discharge, but did not address who is a proper party defendant to a suit for retaliatory discharge. Id. The Fellhauer court noted further that under normal tort doctrine, if the acts of the agent render the principal liable, such acts also render the agent liable. Id. Thus, the" }, { "docid": "11504340", "title": "", "text": "held this to be the appropriate standard. Coal Belt, 230 Ill. at 169, 82 N.E. at 629; Western Casualty, 105 Ill.2d at 500, 86 Ill.Dec. at 500, 475 N.E.2d at 879. Moreover, the vast majority of Illinois appellate courts foUow this standard. See, e.g., Marks v. Rueben H. Donnelly, Inc., 260 Ill.App.3d 1042, 1052, 201 Ill.Dec. 393, 400, 636 N.E.2d 825, 832 (1st Dist.), appeal denied, 157 Ill.2d 504, 205 Ill.Dec. 166, 642 N.E.2d 1283 (1994); Feiler v. Covenant Medical Center of Cham- paign-Urbana, 232 Ill.App.3d 1088, 1093, 174 Ill.Dec. 179, 182, 598 N.E.2d 376, 379 (4th Dist.1992); Central Transport, Inc. v. Village of Hillside, 210 Ill.App.3d 499, 515, 154 Ill.Dec. 910, 920, 568 N.E.2d 1359, 1369 (1st Dist.), appeal denied, 159 Ill.2d 594, 159 Ill.Dec. 105, 575 N.E.2d 912 (1991); Stoller v. Exchange Nat’l Bank of Chicago, 199 Ill.App.3d 674, 684, 145 Ill.Dec. 668, 675, 557 N.E.2d 438, 445 (1st Dist.1990); Farmers & Merchants Bank v. Davis, 151 Ill.App.3d 929, 937, 104 Ill.Dec. 850, 856, 503 N.E.2d 565, 571 (2d Dist.), appeal denied, 115 Ill.2d 540, 110 Ill.Dec. 455, 511 N.E.2d 427 (1987); Union Nat’l Bank, 134 Ill.App.3d at 990, 89 Ill.Dec. at 752, 481 N.E.2d at 303; Lewis, 48 Ill.App.3d at 284, 6 Ill.Dec. at 579, 363 N.E.2d at 108. The Seventh Circuit has also recently foUowed this standard. Essex Ins. Co. v. Stage 2, Inc., 14 F.3d 1178, 1181 (7th Cir.1994). Therefore, based on the foregoing, the Court concludes that under Illinois law, the clear, precise, and unequivocal evidence standard is the appropriate standard for equitable estoppel. However, due to the conflicting case law, the Court will nevertheless evaluate Midway’s claim for equitable estoppel under aU three of the aforementioned standards. The Court concludes that Midway has failed to prove its claim for equitable estoppel under any of the three standards. 18. “Estoppel refers to reUance by one party on the word or conduct of another so that the party changes his position and subsequently suffers harm. It arises whenever one by his conduct, affirmative or negative, intentionaUy or through culpable neghgence, induces another to beheve and" }, { "docid": "11504372", "title": "", "text": "knew of the existence of the prospective business relationship between Midway and Southwest. Thus, Midway has met its burden on this element. 10. Pursuant to the third element, Midway must prove by a preponderance of the evidence that Northwest intentionally interfered with the prospective business relationship between Midway and Southwest, thereby preventing Midway’s legitimate expectancy from ripening into a valid business relationship. 11. For the reasons set forth below, the Court concludes that Midway has failed to meet its burden with respect to this element. 12. This element can be broken down into four components: (1) Northwest must have interfered with Midway’s prospective business relationship with Southwest; (2) Northwest’s conduct that constituted the interference (i.e. the alleged misrepresentations) must have been directed toward Southwest, as a specific third party (See Zakutansky v. Bionetics Corp., 806 F.Supp. 1362, 1366 (N.D.Ill.1992); Laser Indus., Ltd. v. Eder Instrument Co, Inc., 573 F.Supp. 987, 994 (N.D.Ill.1983); McIntosh v. Magna Sys., Inc., 539 F.Supp. 1185, 1192-93 (N.D.Ill.1982); DP Service, Inc. v. AM Int’l, 508 F.Supp. 162, 167-68 (N.D.Ill.1981); Willcutts v. Galesburg Clinic Ass’n, 201 Ill.App.3d 847, 851, 147 Ill.Dec. 853, 856, 560 N.E.2d 1, 4 (3d Dist.1990), appeal denied, 136 Ill.2d 556, 153 Ill.Dec. 386, 567 N.E.2d 344 (1991); IK Corp. v. One Financial Place Partnership, 200 Ill.App.3d 802, 819, 146 Ill.Dec. 198, 209, 558 N.E.2d 161, 172 (1st Dist.), appeal denied, 135 Ill.2d 556, 151 Ill.Dec. 383, 564 N.E.2d 838 (1990); Galinski v. Kessler, 134 Ill. App.3d 602, 608, 89 Ill.Dec. 433, 437, 480 N.E.2d 1176, 1180 (1st Dist.), appeal denied, 108 Ill.2d 562 (1985); Parkway Bank & Trust Co. v. City of Darien, 43 Ill.App.3d 400, 402-03, 2 Ill.Dec. 234, 237, 357 N.E.2d 211, 214 (2d Dist.1976)); (3) Northwest’s interference must have been intentional; and (4) Northwest’s interference must have caused Southwest, as the third party, to refuse to enter into the prospective business relationship with Midway (see McIntosh, 539 F.Supp. at 1193; DP Service, 508 F.Supp. at 167-68). 13. The Court concludes that Northwest did not interfere with Midway’s prospective business relationship with Southwest. 14. Midway argues that Northwest’s alleged fraudulent misrepresentations" }, { "docid": "6307675", "title": "", "text": "of Contract Claim Plaintiffs claim that they may recover for the Defendants alleged breach of the DHS Contract with the City of Chicago as third party beneficiaries. In order for a third party to recover for breach of contract, the contract must show that it was entered into for the direct benefit of the third party. Keenan v. Board of Education of the City of Chicago, 812 F.Supp. 780, 784 (N.D.Ill.1992) (citing 155 Harbor Drive Condominium Assoc. v. Harbor Point, Inc., 209 Ill.App.3d 631, 154 Ill.Dec. 365, 374, 568 N.E.2d 365, 374 (1991). Incidental benefits flowing to third parties do not create contractual rights. Id. Plaintiffs claim that the DHS Contract was executed with the intention of providing a benefit directly to the homeless persons who would reside at the Shelter. Defendants argue that Plaintiffs are merely incidental beneficiaries of the DHS Contract. Defendants rely on Smith v. Washington Heights Apartments, Ltd., 794 F.Supp. 1141 (S.D.Fla.1992), in which the court held that residents of a privately owned, federally subsidized housing complex could not recover under a breach of contract theory for breaches of the agreement between the owners of the complex and the federal government. Id. at 1143-14. The Smith opinion does not discuss the language of the contract upon which it relies, providing only, “[t]he Court simply does not believe that the parties to the HAP contracts intended for the tenants to have an enforceable right to bring suit under a third party beneficiary theory.” Id. at 1144. Plaintiffs argue that Smith is inapposite because the law of the Seventh Circuit is stated in Holbrook v. Pitt, 643 F.2d 1261 (7th Cir.1981). In Holbrook, the court held that needy families who were to receive housing assistance payments under federal law were the primary beneficiaries of contracts between the landlords and HUD. The Court rejected HUD’s argument that the tenants were only incidental beneficiaries while the direct beneficiary was the HUD program that was being funded. The court wrote: HUD’s position displays an astonishing lack of perspective about government social welfare programs. If the tenants are not the primary beneficiaries" } ]

[ { "docid": "1938247", "title": "", "text": "were excused that night after approximately six hours of deliberation. The following morning, after 35 minutes of deliberation, instructions on conspiracy, circumstantial evidence, credibility, and reasonable doubt were read at the jury’s request. At 2:50 p.m., having received a note from the foreman stating that the jury was unable to come to an unanimous decision, the judge recalled the jury. He read a brief instruction given in the original charge, an alternative to the “Allen” charge, and directed the jury to resume deliberations. The jury returned a verdict of guilty on all counts at 4:30 p.m., an hour and a half later. Pointing out the length of deliberation prior to and after the reading of the supplemental instruction, Singletary contends that the verdict was coerced. We disagree. The substance of the charge is far milder than that of the Allen charge, approved by this court when circumstances indicate that it has not had a coercive effect. United States v. Wiebold, 507 F.2d 932, 934 (8th Cir. 1974); United States v. Ringland, 497 F.2d 1250, 1252-53 (8th Cir. 1974). Unlike the Allen charge, it does not ask the minority to reexamine its position, mention the cost of trial or retrial, or state that the case must someday be decided. The instruction is virtually identical to one recommended for delivery both in the original charge and after deadlock in ABA Standards Relating to Trial by Jury § 5.4 (Approved Draft, 1968). This court has approved similar instructions in United States v. Skillman, 442 F.2d 542, 558-59 n. 13 (8th Cir.), cert. denied, 404 U.S. 833, 92 S.Ct. 82, 30 L.Ed.2d 63 (1971), and United States v. Chrysler, 533 F.2d 1055, 1056-57 (8th Cir.), cert. denied, 429 U.S. 844, 97 S.Ct. 124, 50 L.Ed.2d 115 (1976). Nor do the circumstances in which this instruction was delivered show a coercive effect on the jury. The jury deliberated for approximately ten hours before the supplemental instruction was read, and an hour and a half thereafter. We cannot say that this comparison alone indicates coercion. Cf. United States v. Chrysler, supra, 533 F.2d 1055 (deliberation six" } ]

[ { "docid": "15293563", "title": "", "text": "19 L.Ed.2d 1035] (1968)] . . . . In permitting the practice here described, Rule 31(b) is in accord with the prior law [citing, inter alia, United States v. Frankel, 65 F.2d 285 (2d Cir.), cert. denied, 290 U.S. 682 [54 S.Ct. 119, 78 L.Ed. 588] (1933)]. 2 C. Wright, Federal Practice and Procedure § 513, at 368-69 (1969). A guilty verdict may not be challenged on the basis that the jury is sent back for further deliberations on remaining counts after reaching a verdict on one or more counts. United States v. Barash, 412 F.2d 26, 31-32 (2d Cir.), cert. denied, 396 U.S. 832, 90 S.Ct. 86, 24 L.Ed.2d 82 (1969); McDonald v. Commonwealth, 173 Mass. 322, 329, 53 N.E. 874, 875 (1899). . She told the court that she had been “attacked incredibly” on the first day of deliberations but agreed with the judge that jury deliberations are often “emotional and high strung.” . Fed.R.Evid. 606(b) states: Inquiry into validity of verdict or indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes. . We note that the level of symbiosis between liability and damages that existed in Vizzini ordinarily would not pertain to partial verdicts on separate counts of an indictment. . In United States v. Pleva, 66 F.2d 529 (2d Cir. 1933), the conviction was reversed on appeal where a juror had informed the trial judge while the jury" }, { "docid": "14760433", "title": "", "text": "the verdict of guilty on those counts as to which the jury had reached a conclusion and in a supplemental charge asked the jury to deliberate further as to the remaining counts. Following an additional three hours of deliberation, the jury announced as to the remaining counts that it had reached a verdict on some counts but could not agree on the others. Barash maintains that the trial court erred in giving what he characterizes as an Allen charge because it was coercive in and of itself, and in the context in which it was given. We disagree. The lower court’s charge “made it sufficiently clear that a juror ought not abandon his personal conviction.” United States v. Bilotti, 380 F.2d 649, 654 (2d Cir.), cert. denied, 389 U.S. 944, 88 S.Ct. 308, 19 L.Ed.2d 300 (1967). Furthermore, in view of the fact that more than three hours elapsed between the time of the charge and the jury’s final verdict, the jury had ample time for thoughtful consideration which would negate coercion. United States v. Furlong, 194 F.2d 1, 4 (7th Cir.), cert. denied, 343 U.S. 950, 72 S.Ct. 1042, 96 L.Ed. 1352 (1952); United States v. Rao, 394 F.2d 354, 356 (2d Cir. 1968). Similarly, the claim that the supplemental charge was given prematurely has no merit. The jury here retired to deliberate at 11:25 a. m. and emerged at 11:30 p. m. to announce that it was unable to reach a unanimous decision on a number of counts. The court permitted the jury to go home to sleep. The next day the jury deliberated for two more hours before the court gave its supplemental charge. We think the trial court acted well within its proper discretion in so timing the charge. Barash further attacks the verdict on the grounds that the trial judge improperly sent the jury back for further deliberations after accepting their verdict of guilty on a number of the counts. But no authority has been offered in support of this proposition. The cases cited by Barash hold that silence by the jury as to its" }, { "docid": "4432026", "title": "", "text": "Re’s memorandum had recorded the proper date. Defense counsel strenuously argued the inconsistency to the jury, and the jury apparently concluded that all that was involved was faulty memory on a comparatively insignificant point. This was a legitimate question for the jury, and we cannot say that the inconsistency created a reasonable doubt as to defendant’s guilt as a matter of law. V. Coercion of the Supplemental Charge: The argument is made that the trial judge’s supplemental charge to the jury after the jury had indicated it was deadlocked unduly coerced the jury into reaching a verdict of guilty. The vote at that time was four votes for guilty, eight for not guilty. In his supplemental charge to the jury, the trial court stated: “I am frank to say that I see no reason why a verdict cannot be reached.” Two and one-half hours later, the jury returned a guilty verdict. This type of charge, called an “Allen” charge [see Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896)], has consistently been upheld by this court. See, e. g., United States v. Bowles, 428 F.2d 592, 595 (2d Cir. 1970); United States v. Barash, 412 F.2d 26, 32 (2d Cir.), cert. denied, 396 U.S. 832, 90 S.Ct. 86, 24 L.Ed.2d 82 (1969). In any case, it appears that if any coercive effect would have resulted from the trial judge’s Allen charge, it would have been aimed towards those who had been voting for a guilty verdict, since at the time the vote was strongly in favor of acquittal. VI. Hearing on Indictment: Birrell claims that in this case he is entitled to a hearing to determine whether the specific terms of his indictment were considered by the grand jury. Birrell argues that a hearing is called for, since the government has refused to deny categorically the assertion that the grand jury did not actually pass on the terms of the indictment, since there were amendments made to the bill of particulars by the government, and since there existed what Birrell calls “striking inconsistencies” between the" }, { "docid": "3052741", "title": "", "text": "DeStefano court found that the Allen charge was less coercive because the jury had not yet announced to the court that it was deadlocked. Furthermore, the fact that the jury did not indicate that it was deadlocked before the instruction was given may actually be taken as evidence that the charge was not coercive, since under such circumstances dissenting jurors would be less likely to believe that the trial judge was trying to shake their decision. Id. at 337. Accord, Munroe v. United States, 424 F.2d 243, 247 (10th Cir. 1970) (Allen charge, although verdict followed 40 minutes later, was not coercive where jury was making progress when charge was given). Following the reasoning of DeStefano, the fact that the jury that found petitioner guilty here had announced that it was making progress was one factor tending to show lack of coercion from the replaying of the tapes; a non-deadlocked jury is less susceptible to such coercion. It is true that the court in DeStefano also cited the four-hour delay in verdict after the Allen charge as a factor in determining lack of coercion. DeStefano, supra, at 337. Accord, United States v. Bambulas, 471 F.2d 501, 506 (7th Cir. 1972) (Four hours’ deliberation after Allen charge was a factor in determining lack of coercion.) Although the jury here reached a verdict after forty-five minutes, it had already deliberated twenty hours when the tapes were replayed and could have been on the verge of a verdict at any rate; the foreman had announced they were making progress. The ABA Standards, supra, Commentary to § 5.4(b) at 154, and some courts consider shortness of time in reaching a verdict after an Allen charge as irrelevant to whether the charge was coercive when given, e.g., United States v. Giacalone, 588 F.2d 1158, 1167-68 (6th Cir. 1978), cert. denied, 441 U.S. 944, 99 S.Ct. 2162, 60 L.Ed.2d 1045 (1979). Still others have found no coercion even where the verdict was returned in a very short time after the charge was given, e.g., United States v. Betancourt, 427 F.2d 851 (5th Cir. 1970) (Just under" }, { "docid": "3052742", "title": "", "text": "charge as a factor in determining lack of coercion. DeStefano, supra, at 337. Accord, United States v. Bambulas, 471 F.2d 501, 506 (7th Cir. 1972) (Four hours’ deliberation after Allen charge was a factor in determining lack of coercion.) Although the jury here reached a verdict after forty-five minutes, it had already deliberated twenty hours when the tapes were replayed and could have been on the verge of a verdict at any rate; the foreman had announced they were making progress. The ABA Standards, supra, Commentary to § 5.4(b) at 154, and some courts consider shortness of time in reaching a verdict after an Allen charge as irrelevant to whether the charge was coercive when given, e.g., United States v. Giacalone, 588 F.2d 1158, 1167-68 (6th Cir. 1978), cert. denied, 441 U.S. 944, 99 S.Ct. 2162, 60 L.Ed.2d 1045 (1979). Still others have found no coercion even where the verdict was returned in a very short time after the charge was given, e.g., United States v. Betancourt, 427 F.2d 851 (5th Cir. 1970) (Just under two hours); United States v. Hynes, 424 F.2d 754 (2nd Cir.), cert. denied, 399 U.S. 933, 90 S.Ct. 2270, 26 L.Ed.2d 804 (1970) (Five minutes). This court has upheld a verdict as noncoercive that was rendered only twenty minutes after a polling showed eleven of twelve jurors reported deadlocked and an hour after an earlier Allen charge where the jury had deliberated almost thirteen hours before the Allen charge was given. United States ex rel. Anthony v. Sielaff, 552 F.2d 588 (7th Cir. 1977). Considering the danger inherent in the so-called dynamite charge, as opposed to merely rehearing evidence already heard, the time lapse before verdict here does not indicate coercion. Another Seventh Circuit case, not cited by either side, is even more helpful on the issue of whether the timing of the judge’s belated offer to comply with the jury’s request was coercive. Petitioner, in United States v. Quintana, 508 F.2d 867, 878 (7th Cir. 1975), protested “the alleged failure of the trial judge to make a prompt response to the jury’s request for" }, { "docid": "4050179", "title": "", "text": "again resumed its deliberation, and an hour and twenty minutes later returned a unanimous verdict that McKinney was guilty on the remaining twenty-nine counts. On appeal, counsel does not argue that it was error for the district court to receive a partial verdict. Receipt of a partial verdict was approved in United States v. Ross, 626 F.2d 77 (9th Cir.1980). Counsel does argue, however, that the instruction to the jury on Saturday morning and Monday afternoon were “coercive.” We do not agree. We think the effect of these instructions was “neutral.” The jury was advised, for example, that no individual juror was ever required to yield a conscientious conviction, which means, to us, that a juror may adhere to his or her personal conviction, if he or she believes it to be right, whatever that conviction might be, i.e., guilty or not guilty. We find the challenged instructions to be of the type heretofore approved by this court. See, e.g., United States v. Dyba, 554 F.2d 417 (10th Cir.1977), cert. denied, 434 U.S. 830, 98 S.Ct. 111, 54 L.Ed.2d 89 (1977); Munroe v. United States, 424 F.2d 243 (10th Cir.1970). Counsel also argues that under United States v. Blandin, 784 F.2d 1048 (10th Cir.1986), an Allen instruction may never be given once a jury has commenced its deliberation. In arguing for a per se rule, counsel overreads Blandin. Blandin, incidentally, was filed after the trial of this case. In pre-Blandin cases, we have said that it is generally preferable that any Allen instruction be given at the time the general instructions are given a jury. See Munroe v. United States, 424 F.2d 243 (10th Cir.1970); United States v. Wynn, 415 F.2d 135 (10th Cir.1969), cert. denied, 397 U.S. 994, 90 S.Ct. 1133, 25 L.Ed.2d 402 (1970); United States v. Winn, 411 F.2d 415 (10th Cir.1969), cert. denied, 396 U.S. 919, 90 S.Ct. 245, 24 L.Ed.2d 198 (1969). Those are the cases relied on in Blandin. We adhere to the preferred course of procedure, but decline to read Blandin as holding that an Allen charge can never be given after a" }, { "docid": "15293562", "title": "", "text": "group failed to mention the $14,000 payoff, see note 8 and accompanying text supra, and belied Hock-ridge’s testimony that the transaction was really a loan from Petri to be used to buy stock. . Rule 31(b) provides: Several Defendants. If there are two or more defendants, the jury at any time during its deliberations may return a verdict or verdicts with respect to a defendant or defendants as to whom it has agreed; if the jury cannot agree with respect to all, the defendant or defendants as to whom it does not agree may be tried again. Fed.R.Crim.P. 31(b). In explicating Rule 31(b), Professor Wright states that the jury, at any time during its deliberations, may return one or more verdicts on those counts or defendants on which it is agreed. It may then retire again and resume its deliberations about the remaining charges [citing, inter alia, United States v. Conti, 361 F.2d 153 (2d Cir. 1966), vacated and remanded on other grounds sub nom. Stone v. United States, 390 U.S. 204 [88 S.Ct. 899, 19 L.Ed.2d 1035] (1968)] . . . . In permitting the practice here described, Rule 31(b) is in accord with the prior law [citing, inter alia, United States v. Frankel, 65 F.2d 285 (2d Cir.), cert. denied, 290 U.S. 682 [54 S.Ct. 119, 78 L.Ed. 588] (1933)]. 2 C. Wright, Federal Practice and Procedure § 513, at 368-69 (1969). A guilty verdict may not be challenged on the basis that the jury is sent back for further deliberations on remaining counts after reaching a verdict on one or more counts. United States v. Barash, 412 F.2d 26, 31-32 (2d Cir.), cert. denied, 396 U.S. 832, 90 S.Ct. 86, 24 L.Ed.2d 82 (1969); McDonald v. Commonwealth, 173 Mass. 322, 329, 53 N.E. 874, 875 (1899). . She told the court that she had been “attacked incredibly” on the first day of deliberations but agreed with the judge that jury deliberations are often “emotional and high strung.” . Fed.R.Evid. 606(b) states: Inquiry into validity of verdict or indictment. Upon an inquiry into the validity of a verdict" }, { "docid": "11627896", "title": "", "text": "the “Allen” charge under review is some indication of actual coercive effect on the jury. This factor was considered in Jones v. Nor-veil, supra (5 minutes); United States v. Rogers, supra (17 minutes); and Peterson v. United States, supra (“within-a few minutes”). The lateness of the hour of the instruction (12:10 a. m.) given after the jury had deliberated nearly 8 hours, the fact that this was the second “Allen” charge given to the jury, and the knowledge that the court had earlier inquired if a verdict would be reached in 30 minutes all added to the coercive effect of the instruction. Viewing the above events in their totality, there is no way that a conclusion can be reached that the jury was not impermissibly influenced. Indeed, the possibility of coercion in these circumstances is more likely than not and violates petitoner’s right to a fair and impartial jury trial. The respondent should be given a reasonable time in which to give petitioner a new trial; otherwise, the writ should issue. Dated this 17th day of September, 1974. (s) George E. Juba United States Magistrate BELLONI, Chief Judge. After review of the file and record in this case, I cannot approve the above recommendation. If, after a review of the totality of the circumstances surrounding this verdict, a violation of petitioner’s federally protected rights is found, a new trial must be granted. A review of these circumstances, however, shows that neither the instructions nor the surrounding circumstances were improperly coercive. Courts have struck down various “modified” Allen charges because the very language of the instruction is coercive. Jones v. Norvell, 472 F.2d 1185 (6th Cir. 1973), cert. den., 411 U.S. 986, 93 S.Ct. 2275, 36 L.Ed.2d 964 (1973); United States v. Rogers, 289 F.2d 433 (4th Cir. 1961); Jenkins v. United States, 380 U.S. 455, 85 S.Ct. 1059, 13 L.Ed.2d 957 (1965). The case before us can be distinguished from the above cited cases. In Jenkins the trial judge declared, “Now I am not going to accept this. You have got to make a decision in this case.” The coercive" }, { "docid": "23270729", "title": "", "text": "Munroe v. United States, 424 F.2d 243, 246 (10th Cir.1970); see United States v. McKinney, 822 F.2d 946, 951 (10th Cir.1987). Some factors considered in making this determination include: (1) The language of the instruction; (2) its incorporation with other instructions; and (3) the timing of the instruction, for example, whether given before the jury has commenced deliberations and whether given before the jury has reached an impasse or deadlock. Here, a modified Allen instruction was included in the original charge to the jury. After several hours of deliberation, the jury foreman delivered a message to the court stating, “Your Honor — We the jury have not been able to reach a verdict. It appears that we may not be able to reach agreement. We seek advise [sic] or counsel at this time.” The court, over objection, read to the jury an additional Allen instruction. The eourt then asked the jury whether they thought they could reach a verdict if given more time. After affirmative responses from the jurors, the court ordered the jury to retire for the evening and to recommence deliberations in the morning. The jury reconvened the next day, and later that morning returned its verdict finding Porter guilty of Count I of the indictment and not guilty of Count II. Porter alleges that the language in the Allen instruction, coupled with the fact that it was given during the course of deliberations, resulted in improper coercion of the jurors. We disagree. With regard to the language, Porter contends that because the district court judge instructed the jury in the first person, the judge improperly interjected his personal views into the language of the instruction. We must keep in mind that “the inquiry in each case is whether the language used by the judge can be said to be coercive, or merely the proper exercise of his common law right and duty to guide and assist the jury toward a fair and impartial verdict.” United States v. Winn, 411 F.2d 415, 416 (10th Cir.), cert. denied, 396 U.S. 919, 90 S.Ct. 245, 24 L.Ed.2d 198 (1969). Here," }, { "docid": "3052740", "title": "", "text": "instructions to a non-deadlocked jury is not per se coercive. In United States v. DeStefano, 476 F.2d 324 (7th Cir. 1973), defendant argued that giving the Allen charge to a jury that had given no indication of deadlock was coercive. This court rejected that argument, distinguishing a Ninth Circuit case that bolstered De-Stefano’s contention, United States v. Contreras, 463 F.2d 773 (9th Cir. 1972), because the jury in Contreras, by asking for further instructions, had shown confusion about the law rather than an inability to reach a verdict. DeStefano, supra, at 337. This Court found that the timing of the charge was not only not coercive per se but was not “a violation of the ABA Standards,” which state that a court can give the Allen charge “[i]f it appears to the court that the jury has been unable to agree, . . .. ” Id. at 336-37. In contrast to the jury in Contreras, the DeStefano jury, by not yet announcing a deadlock, had not shown an inability to reach a verdict. Indeed, the DeStefano court found that the Allen charge was less coercive because the jury had not yet announced to the court that it was deadlocked. Furthermore, the fact that the jury did not indicate that it was deadlocked before the instruction was given may actually be taken as evidence that the charge was not coercive, since under such circumstances dissenting jurors would be less likely to believe that the trial judge was trying to shake their decision. Id. at 337. Accord, Munroe v. United States, 424 F.2d 243, 247 (10th Cir. 1970) (Allen charge, although verdict followed 40 minutes later, was not coercive where jury was making progress when charge was given). Following the reasoning of DeStefano, the fact that the jury that found petitioner guilty here had announced that it was making progress was one factor tending to show lack of coercion from the replaying of the tapes; a non-deadlocked jury is less susceptible to such coercion. It is true that the court in DeStefano also cited the four-hour delay in verdict after the Allen" }, { "docid": "17981065", "title": "", "text": "denied, 401 U.S. 942 91 S.Ct. 950, 28 L.Ed.2d 223 (1971) where an instruction substituting the language “the case is left open and undecided and like all eases, it must be disposed of some time” for the language “the case must be retried” was found to be preferable to the Brown instruction. . Note, Supplemental Jury Charges, supra note 9, at 1212-13. . C. Joiner, Civil Justice and the Jury 26-27 (1962). See also, Johnson v. Louisiana, 406 U.S. 356, 361, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972), Apodaca v. Oregon, 406 U.S. 404, 379, 92 S.Ct. 1628, 1642, 32 L.Ed.2d 184 (Powell, J. concurring, in an opinion filed with Johnson v. Louisiana.) . During closing argument, for example, De Stefano argued: Then let’s go to the main witness, their chief witness Crimaldi. I have demanded, subpoenaed .and done everything to bring him here. When the government objected to this line of argument, Speiee’s counsel interjected : I believe Mr. De Stefano misunderstood your Honor’s ruling. I am sure your Honor is not telling him that he cannot comment upon the failure of the government to bring in Mr. Crimaldi. Although De Stefano and Speice’s counsel were ordered to desist in their remarks about Crimaldi’s absence, the jury nevertheless got the inevitable impression that the government was responsible for his nonappearance. . United States v. Martinez, 446 F.2d 118, 119 (2d Cir.), cert. denied, 404 U.S. 944, 92 S.Ct. 297, 30 L.Ed.2d 259 (1971), United States v. Seasholtz, 435 F.2d 4, 7 (10th Cir. 1970). . United States v. Bambulas, 471 F.2d 501 at 506 (7th Cir. 1972); United States v. Pope, 415 F.2d 685, 690-691 (8th Cir. 1969), cert. denied, 397 U.S. 950, 90 S.Ct. 973, 25 L.Ed. 132 (1970). FAIRCHILD, Circuit Judge (concurring in part, dissenting in part). I concur in reversal of the judgment against Spcice. With all respect, I reach different conclusions on two propositions, which would also lead to reversal as to De Stefano. First: I think both defendants were entitled to the government’s assistance in serving a subpoena on Crimaldi. Perhaps he would have" }, { "docid": "22572024", "title": "", "text": "jury in the midst of deliberations would be recalled simply to accommodate his preference for particular wording of a supplemental instruction. Yet at this critical stage of the trial the wording may be as significant as the substance of the response. Moreover, defense counsel did note his objection to the wording of the first modified Allen charge, and, following the judge’s response to the third note, did begin to complain about that instruction as well. At that point the judge made reasonably clear that the supplemental instructions were not going to be revised. In sum, we cannot say “with fair assurance,” United States v. Schor, supra, 418 F.2d at 30, that the procedural error in the handling of the jury’s inquiries did not affect the verdict. Accordingly, we reverse and remand for a new trial. . Prior to Ronder’s trial, Gruberg pled guilty to Count 2 of the indictment, charging him with the substantive offense of filing a false corporate income tax return for the year 1973. . Allen v. United States, 164 U.S. 492, 501-02, 17 S.Ct. 154, 157-58, 41 L.Ed. 528 (1896). . £. g., a juror “should never surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of other jurors or for the mere purpose of returning a verdict,” United States v. Barash, 412 F.2d 26, 31 n.9 (2d Cir.), cert. denied, 396 U.S. 832, 90 S.Ct. 86, 24 L.Ed.2d 82 (1969); no juror should violate “a conviction which he conscientiously holds predicated upon the weight and effect of the evidence,” United States v. Miller, 478 F.2d 1315, 1320 (2d Cir.), cert. denied, 414 U.S. 851, 94 S.Ct. 144, 38 L.Ed.2d 100 (1973); jurors should vote “finally according to your conscientious judgment,” United States v. Hynes, 424 F.2d 754, 756 n.2 (2d Cir.), cert. denied, 399 U.S. 933, 90 S.Ct. 2270, 26 L.Ed.2d 804 (1970); jurors should try to reach unanimity “without any juror yielding a conscientious conviction,” United States v. Rao, 394 F.2d 354, 355 (2d Cir.), cert. denied, 393 U.S. 845, 89 S.Ct. 129, 21 L.Ed.2d 116" }, { "docid": "7569976", "title": "", "text": "in United States v. Barash, 412 F.2d 26 (2d Cir.), cert. denied, 396 U.S. 832, 90 S.Ct. 86, 24 L.Ed.2d 82 (1969); United States v. Meyers, 410 F.2d 693 (2d Cir.), cert. denied, 396 U.S. 835, 90 S.Ct. 93, 24 L.Ed.2d 86, rehearing denied, 396 U.S. 949, 90 S.Ct. 371, 24 L.Ed.2d 255 (1969); United States v. Rao, 394 F.2d 354 (2d Cir. 1968); United States v. Bilotti, 380 F.2d 649 (2d Cir. 1967); United States v. Kenner, 354 F.2d 780 (2d Cir. 1965). Absent coercive circumstances outside the charge itself, we are satisfied that the so-called “Allen charge” does not unconstitutionally deprive a defendant of his right to a unanimous verdict rendered upon the conscientious consideration of twelve impartial jurors, notwithstanding the different view adopted within the last few months in two sister circuits. See United States v. Fioravanti, 412 F.2d 407 (3rd Cir.), cert. denied sub nom. Panaceione v. United States, 396 U.S. 837, 90 S.Ct. 97, 24 L.Ed.2d 88 (1969); United States v. Wynn, 415 F.2d 135 (10th Cir. 1969) (both courts prospectively ruling that the charge could no longer be given in those circuits as a supplemental instruction to a deadlocked jury, but permitting its inclusion in the main charge). The charge is no more than a re-statement of the precepts which the trial judge almost invariably gives to guide the jurors’ deliberations in his original charge. Its function is to emphasize that a verdict is in the best interests of both prosecution and defense, and we adhere to the view that “ Ct] he considerable costs in money and time to both sides if a retrial is necessary certainly justify an instruction to the jury that if it is possible for them to reach a unanimous verdict without any juror yielding a conscientious conviction * * \", they should do so.” United States v. Rao, 394 F.2d 354, 355 (2d Cir. 1968). There were no aggravating circumstances in the present case such as foreknowledge of the numerical split, use of compromising language outside the Supreme Court statement in Allen or undue emphasis on the responsibility" }, { "docid": "3052743", "title": "", "text": "two hours); United States v. Hynes, 424 F.2d 754 (2nd Cir.), cert. denied, 399 U.S. 933, 90 S.Ct. 2270, 26 L.Ed.2d 804 (1970) (Five minutes). This court has upheld a verdict as noncoercive that was rendered only twenty minutes after a polling showed eleven of twelve jurors reported deadlocked and an hour after an earlier Allen charge where the jury had deliberated almost thirteen hours before the Allen charge was given. United States ex rel. Anthony v. Sielaff, 552 F.2d 588 (7th Cir. 1977). Considering the danger inherent in the so-called dynamite charge, as opposed to merely rehearing evidence already heard, the time lapse before verdict here does not indicate coercion. Another Seventh Circuit case, not cited by either side, is even more helpful on the issue of whether the timing of the judge’s belated offer to comply with the jury’s request was coercive. Petitioner, in United States v. Quintana, 508 F.2d 867, 878 (7th Cir. 1975), protested “the alleged failure of the trial judge to make a prompt response to the jury’s request for a definition of the words ‘entrapment’ and ‘coercion’.” The jury request, involving the defendant’s principal defenses, was made about 6 p. m. one day, six hours after beginning its deliberations. Upon receiving word from the marshal that the judge wished them to keep deliberating until they heard from him, they continued until 10:15 p. m. Although they resumed deliberations at 9 a. m. the next morning, they were not re-read the key instructions until 10:30 a. m. Twenty minutes later, the jury reached a verdict. This court wrote: [Petitioner] does not complain that the instructions given were incorrect, but rather that allowing the jury to remain in some confusion on those defenses for five hours of deliberation was prejudicial error where entrapment and coercion were the principal grounds of his defense.. . . The ultimate test is whether the procedure as a whole was so likely to have confused the jury that reversal is required. ... We hold that it was not.. . . [T]he jury was not under great pressure to terminate its deliberations." }, { "docid": "19104810", "title": "", "text": "one half hours. After the judge sent the written supplemental instruction, the jury deliberated for another hour. Numerous courts have found no coercion under similar circumstances. See Green v. French, 143 F.3d 865, 886 (4th Cir.1998) (concluding that a one hour deliberation after a supplemental Allen instruction failed to suggest coercion); United States v. Hernandez, 105 F.3d 1330, 1334 (9th Cir.1997) (stating that deliberations of 40 minutes after Allen charge did not “raise the specter of coercion”); United States v. Smith, 635 F.2d 716, 721-22 (8th Cir.1980) (finding no coercion when jury deliberated forty-five minutes after Allen charge, in addition to previous three hour total deliberations). We note, however, that these cases do not establish a formula, but rather are illustrative of the principle that sufficient additional time can help to establish an absence of coercion. That principle is particularly applicable in this case, where the total time of deliberation was roughly 3/é hours, of which the deliberations after the Allen charge represented almost one third. The other relevant circumstance in this case, namely, the verdict’s internal consistency, also implies an absence of coercion. As noted earlier, Hernández was convicted of conspiring to possess cocaine with the intent to distribute. He was also convicted of carrying a gun, either the one on his person or the one under Ramirez’s seat, during and in relation to the drug crime. Finally, he was acquitted of possessing the gun with an obliterated serial number which was found underneath Ramirez’s seat. The jury’s verdict indicates that it found Hernández guilty of the drug crime and of carrying his own gun, but rejected the government’s argument that he constructively possessed the firearm under Ramirez’s seat. The internal consistency of this result suggests a nuanced analysis and reasoned decision. See Plunk, 153 F.3d at 1027 (concluding that “the fact that the jury rendered a mixed verdict [on independent counts] ... suggests that it reviewed the evidence rationally and independently”); cf. Paniagua-Ramos, 135 F.3d at 199 (finding confusion when jury convicted defendant of conspiracy but acquitted him on the underlying substantive charge, because evidence suggested defendant was" }, { "docid": "13548199", "title": "", "text": "the court’s retraction, because the jury deliberated several hours after the retraction, and because at the time of the retraction the judge also told the jury that “in the last analysis what you must do here, regardless of how you arrive at it, is to arrive •at a verdict which is in accordance with your conscience, because if it is not in accordance with your conscience, you would be stultifying your oath as a jur- or. So do the right thing, the thing that you think is right in your conscience.” The fact that six hours passed between the Allen charge (and cancer analogy) and the guilty verdict supports our view that the jury was not improperly importuned into reaching a guilty verdict. See United States v. Barash, 412 F.2d 26, 31-32 (2d Cir.), cert. denied, 396 U.S. 832, 90 S.Ct. 86, 24 L.Ed.2d 82 (1969) (three-hour lapse between charge and verdict negates suggestion of coercion); United States v. Bowles, 428 F.2d 592, 596 (2d Cir.), cert. denied, 400 U.S. 928, 91 S.Ct. 193, 27 L.Ed.2d 188 (1970); United States v. Hynes, 424 F.2d 754, 757-58 (2d Cir.), cert. denied, 399 U.S. 933, 90 S.Ct. 2270, 26 L.Ed.2d 804 (1970). II ' Stewart contends secondly that the indictment should be dismissed because the government failed to furnish Brady material to him at the time of his first trial. The information in question is a statement given to the FBI by Ruddock who was not called as a witness at the first trial. In his statement Ruddock described the bank robbery, but referred to only six participants, omitting any mention of Hall or Stewart. In analyzing the impact that the disclosure of this statemént would have had at the first trial, it must be considered that the statement was incomplete in light of known facts. The statement, and all other testimony in the case, indicated that Williams was outside of the bank during the robbery. Thus, according to Ruddock’s statement, there should have been only five robbers in the bank. Yet the photographs from the bank surveillance cameras showed six robbers." }, { "docid": "22904075", "title": "", "text": "concluded that the Allen charge itself represents the permissible limit of verdict-urging instructions. Green v. United States, 309 F.2d 852, 854 (5 Cir. 1962) and United States v. Rogers, 289 F.2d 433, 435-437 (4 Cir. 1961), are examples. But the essentially pure Allen charge continues to be upheld. United States v. Harris, supra, 391 F.2d at 354 ; United States v. Kahaner, 317 F.2d 459, 484-485 (2 Cir. 1963), cert. denied, 375 U.S. 835, 836, 84 S.Ct. 62, 11 L.Ed.2d 65; Fulwood v. United States, 125 U.S.App.D.C. 183, 369 F.2d 960 (1966), cert. denied, 387 U.S. 934, 87 S.Ct. 2058, 18 L.Ed.2d 996. A review of the supplemental charge employed by Judge Duncan and the circumstances under which it was delivered convince us that the point, as here raised, is without merit. This jury retired at 5:07 p.m. on July 19. At 6:10 p.m. they concluded their deliberations for the day. They came back the next morning at 9:30. At noon they reported that they were making little progress. They were excused for lunch until 1 p.m. When they returned, Judge Duncan gave them his supplemental instruction. The jury again retired at 1:15 p.m. The defense voiced its objection to the additional charge. At 5:45 p.m. the jury reported that they had not been able to agree on a verdict but felt they might so do “in a few hours more”. The jury was excused for the night. They returned at 9:30 a.m. on July 21. At 10:45 a.m. the verdicts of guilty were returned. The jury thus deliberated 1 hour late Wednesday afternoon, 2% hours Thursday morning, and, after the supplemental instruction, 4% hours Thursday afternoon, and an hour and 15 minutes Friday morning. It conferred a total of 914 hours. Of this time, 5% hours were consumed after the additional charge was delivered. This is not a case, as some have been, where the jury returned its verdict promptly following the supplemental instruction and where a coercive effect is therefore strongly suggested. See United States v. Rogers, supra, 289 F.2d at 434-35. Here the jury continued its deliberations" }, { "docid": "7569975", "title": "", "text": "of testimony given in one day of trial whether or not he believed Hynes knew what he was doing. Beginning deliberation the following day at 10:00 a. m., the jury asked once for additional instruction on the elements of the crime at 11:45 a. m. An hour later the jury reported a deadlock. Judge Weinfeld sent them to the jury room to wait for a few minutes while the marshal made lunch reservations; then they left to eat. Returning from lunch, the jury was instructed from the Supreme Court’s opinion in Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896), with the addition of several cautionary phrases assuring that individual jurors were not being asked to vote against their “considered judgment.” This supplemental charge was completed at 2:35 p. m. The marshal reported a verdict to the court at 2:40 p. m. This Court has consistently reaffirmed its approval of the supplementary charge to encourage a verdict in the face of an apparent deadlock. Recent examples are to be found in United States v. Barash, 412 F.2d 26 (2d Cir.), cert. denied, 396 U.S. 832, 90 S.Ct. 86, 24 L.Ed.2d 82 (1969); United States v. Meyers, 410 F.2d 693 (2d Cir.), cert. denied, 396 U.S. 835, 90 S.Ct. 93, 24 L.Ed.2d 86, rehearing denied, 396 U.S. 949, 90 S.Ct. 371, 24 L.Ed.2d 255 (1969); United States v. Rao, 394 F.2d 354 (2d Cir. 1968); United States v. Bilotti, 380 F.2d 649 (2d Cir. 1967); United States v. Kenner, 354 F.2d 780 (2d Cir. 1965). Absent coercive circumstances outside the charge itself, we are satisfied that the so-called “Allen charge” does not unconstitutionally deprive a defendant of his right to a unanimous verdict rendered upon the conscientious consideration of twelve impartial jurors, notwithstanding the different view adopted within the last few months in two sister circuits. See United States v. Fioravanti, 412 F.2d 407 (3rd Cir.), cert. denied sub nom. Panaceione v. United States, 396 U.S. 837, 90 S.Ct. 97, 24 L.Ed.2d 88 (1969); United States v. Wynn, 415 F.2d 135 (10th Cir. 1969) (both courts" }, { "docid": "13548198", "title": "", "text": "jury to try harder to reach a unanimous verdict. The court prefaced the Allen charge with a cancer analogy, to which Stewart objected. The jury returned to the courtroom approximately one hour later. After some testimony was read back to the jury, the district court told it to disregard the example which he had given previously. The court did not specify to what it was referring except to say that it concerned the “example which [was] not entirely within the scope of the facts in this case at all.” Stewart did not object or otherwise indicate that this retraction was ambiguous. We have had occasion to discuss the cancer analogy in the past, and we indicated then that its use was “unfortunate.” United States v. Chaplin, 435 F.2d 320, 323 (2d Cir. 1970). See also United States v. Bowles, 428 F.2d 592, 595-96 (2d Cir.), cert. denied, 400 U.S. 928, 91 S.Ct. 193, 27 L.Ed.2d 188 (1970). While we think that its use was error, we think,that the error does not require reversal because of the court’s retraction, because the jury deliberated several hours after the retraction, and because at the time of the retraction the judge also told the jury that “in the last analysis what you must do here, regardless of how you arrive at it, is to arrive •at a verdict which is in accordance with your conscience, because if it is not in accordance with your conscience, you would be stultifying your oath as a jur- or. So do the right thing, the thing that you think is right in your conscience.” The fact that six hours passed between the Allen charge (and cancer analogy) and the guilty verdict supports our view that the jury was not improperly importuned into reaching a guilty verdict. See United States v. Barash, 412 F.2d 26, 31-32 (2d Cir.), cert. denied, 396 U.S. 832, 90 S.Ct. 86, 24 L.Ed.2d 82 (1969) (three-hour lapse between charge and verdict negates suggestion of coercion); United States v. Bowles, 428 F.2d 592, 596 (2d Cir.), cert. denied, 400 U.S. 928, 91 S.Ct. 193, 27" }, { "docid": "14760432", "title": "", "text": "cert. denied, 389 U.S. 833, 88 S.Ct. 32, 19 L.Ed.2d 93 (1967). DeSibio testified that Barash had told him in words or substance, that “there would be something in it for him” if certain deductions were fraudulently allowed in 1961, and that he would not have prepared the same audit report if he had not believed that payment from Barash was forthcoming. Similar testimony was given as to a later transaction. This evidence satisfied the requisite elements of the bribery statutes here and a fortiori, the less demanding standard of 26 U.S.G. § 7214 (a) (2). Neither do we find merit in Barash’s assertion that the trial judge confused the jury by giving a specific answer to a specific question about a portion of the charge rather than repeating the instructions verbatim. The Verdict After more than 13 hours of deliberation over a two-day period, the jury sent a statement to the trial judge that it was unable to reach a verdict on some of the counts. At that point of time, the court accepted the verdict of guilty on those counts as to which the jury had reached a conclusion and in a supplemental charge asked the jury to deliberate further as to the remaining counts. Following an additional three hours of deliberation, the jury announced as to the remaining counts that it had reached a verdict on some counts but could not agree on the others. Barash maintains that the trial court erred in giving what he characterizes as an Allen charge because it was coercive in and of itself, and in the context in which it was given. We disagree. The lower court’s charge “made it sufficiently clear that a juror ought not abandon his personal conviction.” United States v. Bilotti, 380 F.2d 649, 654 (2d Cir.), cert. denied, 389 U.S. 944, 88 S.Ct. 308, 19 L.Ed.2d 300 (1967). Furthermore, in view of the fact that more than three hours elapsed between the time of the charge and the jury’s final verdict, the jury had ample time for thoughtful consideration which would negate coercion. United States v." } ]

[ { "docid": "22623041", "title": "", "text": "The statute of conviction — Tex. Penal Code § 30.02(a)(1) — makes it a crime to enter into a habitation or building not open to the public, without consent of the owner, intending to commit a felony, theft, or assault. Morales-Mota’s argument hinges on the definition of “owner,” which under Texas law includes a person who has “a greater right to possession of the property than the actor.” Tex. Penal Code § 1.07(35)(A). According to Morales-Mota, because a person can be convicted of burglary of a habitation even if he has a legitimate right to possess the property, the Texas statute is broader than the generic definition of burglary of a dwelling. In United States v. Garcia-Mendez, 420 F.3d 454, 456-57 (5th Cir.2005), we held that burglary of a habitation under § 30.02(a)(1) constitutes burglary of a dwelling and supports an enhancement under § 2L1.2, but we did not address Morales-Mota’s contention. Recently we rejected a materially indistinguishable argument in United States v. Joslin, 487 Fed.Appx. 139, 142-44, No. 11-40863, 2012 WL 3488717, at *3-*4 (5th Cir. Aug. 14, 2012) (per curiam) (unpublished), deciding that Texas’s definition of “owner” did not bring its burglary-of-a-habitation statute outside the generic definition of burglary for purposes of the Armed Career Criminal Act (“ACCA”). Id. In Joslin, we relied on the Supreme Court’s observation that Congress listed burglary as an enumerated offense in the ACCA because of its “ ‘inherent potential for harm to persons.’ ” Id. at 142, 2012 WL 3488717 at *3 (quoting Taylor v. United States, 495 U.S. 575, 588, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)). “Merely maintaining an inferior possessory interest in a habitation does not extinguish the potential violence that may result when a person enters a habitation with intent to commit theft.” Id. at 144, 2012 WL 3488717 at *4. Though Joslin is unpublished and thus not precedential, it is instructive, its reasoning persuasive. See 5th Cir. R. 47.5.4; Ballard v. Burton, 444 F.3d 391, 401 & n. 7 (5th Cir.2006). Accordingly, the enhancement in this ease was proper. The judgment of sentence is AFFIRMED. . See" } ]

[ { "docid": "22257743", "title": "", "text": "Because the basis of the crime was invasion of the right of habitation, the structure need only be a dwelling, that is, a place of human habitation, and occupancy rather than ownership was determinative. Applying a common sense approach and the ordinary, contemporary and common meaning of the word “dwelling,” we conclude that Taylor’s definition of generic burglary, although instructive, does not strictly apply to the specific offense “bur glary of a dwelling” as used in the Guidelines. Instead, “burglary of a dwelling” includes the elements of generic burglary as stated in Taylor but it also includes, at a minimum, tents or vessels used for human habitation. Because Murillo-Lopez’s California burglary conviction as described in the criminal complaint is equivalent to “burglary of a dwelling,” the district court may consider section 2L1.2’s “crime of violence” enhancement when sentencing Murillo-Lopez on remand. VACATED and REMANDED. . 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). . 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998); see also United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied, — U.S. - , 126 S.Ct. 298, 163 L.Ed.2d 260 (2005). . See Booker, 543 U.S. at 259, 125 S.Ct. 738 (2005). . See United States v. Walters, 418 F.3d 461, 463-64 (5th Cir.2005). . See In re Mirant Corp., 378 F.3d 511, 522 (5th Cir.2004) (addressing an issue \"[i]n the interest of judicial efficiency and to provide guidance on remand”); Procter & Gamble Co. v. Amway Corp., 280 F.3d 519, 528 (5th Cir.2002) (addressing an issue \"[t]o provide guidance on remand” even though other errors justified a remand). . U.S.S.G. § 2L1.2(b)(l)(A)(ii) (2003). . Id. cmt. n. l(B)(iii). . See United States v. Calderon-Pena, 383 F.3d 254, 256 (5th Cir.) (en banc), cert. denied, 543 U.S. 1076, 125 S.Ct. 932, 160 L.Ed.2d 817 (2005). . United States v. Dominguez-Ochoa, 386 F.3d 639, 642-43 (5th Cir.2004) (quoting Taylor v. United States, 495 U.S. 575, 592, 598, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), in determining whether a Texas conviction for criminally negligent homicide is equivalent to \"manslaughter” for purposes" }, { "docid": "7215531", "title": "", "text": "the \"crime of violence” definition as well — with the additional requirement that a burglary qualifying as a \"crime of violence” must involve a dwelling. See United States v. Herrera-Montes, 490 F.3d 390, 392 (5th Cir.2007) (\"Taylor's definition of 'burglary,' ... controls the definition of 'burglary of a dwelling under the Guidelines.''); United States v. Wenner, 351 F.3d 969, 973 (9th Cir.2003) C‘[T]he most logical and sensible reading of the Guidelines ... is to construe 'burglary of a dwelling' as the Taylor definition of burglary, with the narrowing qualification that the burglary occur in a dwelling''). . Under the modified categorical approach, see generally Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), we confirm, as did the district court, that Bonilla entered a habitation. Thus, the requirement that Bonilla was convicted of “burglary of a dwelling/ thereby supporting the \"crime of violence” sentencing enhancement, is satisfied. See U.S. Sentencing Guidelines Manual § 2L1.2 cmt. n. l(B)(iii). Bonilla does not challenge this finding on appeal. TRAXLER, Chief Judge, dissenting: Under Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), a prior conviction is a burglary conviction for sentence-enhancement purposes if the underlying offense, “regardless of its exact definition or label, ha[s] the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” Id. at 599, 110 S.Ct. 2143. While there are offenses under Texas law that meet this definition, the statute under which Bonilla was convicted does not contain the intent element required by Taylor. I therefore do not believe that Bonilla’s prior conviction is a crime of violence under U.S.S.G. § 2L1.2, and I respectfully dissent from the affirmance of Bonilla’s sentence. I. A. The Sentencing Guidelines provide for a 16-level increase in the offense level if the defendant was deported after being convicted of a “crime of violence” that receives criminal history points. U.S.S.G. § 2L1.2(b)(l)(A)(ii). The Guideline defines “crime of violence” to include “burglary of a dwelling,” id. cmt. n. l(B)(iii), but it does not define" }, { "docid": "14265759", "title": "", "text": "commits UUMV “if he intentionally or knowingly operates another’s ... motor-propelled vehicle without the effective consent of the owner.” Although violent confrontations may occur in the course of each offense, neither requires the actual, attempted, or threatened use of physical force as a necessary element. Therefore, Rodriguez’s prior convictions of those offenses do not support a sixteen-level crime-of-violence enhancement under § 2L1.2(b)(l)(A)(ii). In summary, then, we hold that the Texas offenses, of burglary of a building and UUMV are not crimes of violence within the meaning of U.S.S.G. § 2L1.2(b)(l)(A)(ii) because neither offense is listed in Application Note l(B)(ii)(II) or has as an element the use, attempted use, or threatened use of physical force against the person of another. Accordingly, we vacate Rodriguez’s sentence and remand the case for resentencing in the fight of this opinion. VACATED AND REMANDED. . United States v. Charles, 301 F.3d 309, 312-13 (5th Cir.2002) (en banc). . Id. at 312. . See U.S.S.G. § 2L1.2(b)(l)(A)(ii) (Nov.2001). . Id. § 2L1.2, comment. (n.l(B)(ii)). . See United States v. Rayo-Valdez, 302 F.3d 314, 316 (5th Cir.2002). Our cases recognize that burglary of a building and burglary of a dwelling or habitation are distinct offenses. See, e.g., United States v. Turner, 305 F.3d 349, 351 (5th Cir.2002); United States v. Albert Jackson, 22 F.3d 583, 585 (5th Cir.1994). . United States v. Vargas-Duran, 319 F.3d 194, 196 (5th Cir.2003) (internal quotation and citation omitted). . Texas Penal Code Ann. § 30.02(a) (West Supp.2003). . Texas Penal Code Ann. § 31.07(a) (West 1994). . We have held in cases applying language identical to the commentary accompanying § 2L1.2 that burglary of a building is not a crime of violence as a categorical matter because the state need not prove the use, attempted use, or threatened use of physical force against the person of another to secure a conviction. See Turner, 305 F.3d at 351 (\"The statutory elements of burglary of a building do not make it a per se crime of violence, because they do not necessarily involve use of physical force against the person of another.\"); see" }, { "docid": "18994744", "title": "", "text": "R. Shoemake.” Despite the broad sweep of the burglary statute, we can narrow Carbajal-Diaz’s offense to burglary of an apartment possessed by an individual. Carbajal-Diaz, however, contends that even this narrow crime remains broader than the enumerated offense of “burglary of a dwelling,” because an apartment is not necessarily a dwelling. To support this claim, Carbajal-Diaz points to a handful of Kansas City consulting, massage, and nail salon businesses that happen to be located in apartments. We have concluded that “[a]n apartment is designed for human habitation and is therefore within the meaning of a ‘dwelling’ for purposes of ‘burglary of a dwelling’ as used in the Guidelines.” We need not go that far here, however, because it is undeniable that the apartment at issue in the instant case was not only intended to be, but indeed actually was, “possessed” by a person. The fact that a few people in Kansas City may run small businesses out of apartments does not necessarily, or even probably, mean that the apartments are not also used as dwellings. Although one could conceivably run a small business out of a home, we have deemed a home to be per se a dwelling. Mendoza-Sanchez, 456 F.3d at 483. Accordingly, the enumerated offense of “burglary of a dwelling” encompasses Car-bajal-Diaz’s prior crime, defined in narrowed terms as “burglary of an apartment.” Because the burglary indictment specified burglary of an apartment, and because the apartment in question is a dwelling, the district court did not err in applying the COV enhancement. III. Carbajal-Diaz raises two additional objections to his sentence. He contends that his within-guidelines sentence results from an unconstitutional “presumption of reasonableness” and that his conviction under 8 U.S.C. § 1326(b) is unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). He raises both claims to preserve them for future review but concedes that they are foreclosed by existing circuit and Supreme Court precedent. The judgment of sentence is AFFIRMED. . The 2005 version of the Sentencing Guidelines was used. . See U.S.S.G. § 2L1.2 cmt. 1(B)(iii)" }, { "docid": "21284713", "title": "", "text": "PATRICK E. HIGGINBOTHAM, Circuit Judge: Defendant Juan Jose Herrera-Montes pleaded guilty to reentering the United States following deportation. In sentencing Herrera, the district court levied a 16-level increase after concluding that Ortega’s previous Tennessee conviction for aggravated burglary, Tenn.Code Ann. § 39-14-403, was a “crime of violence” under U.S.S.G. § 2L1.2. Herrera challenges that conclusion, which we review de novo. See United States v. Dominguez-Ochoa, 386 F.3d 639, 641 (5th Cir.2004). U.S.S.G. § 2L1.2 provides for a 16-level increase if the defendant was deported following a “crime of violence.” The commentary to § 2L1.2 defines “crime of violence” as either an enumerated felony, including “burglary of a dwelling,” or a felony that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” As they did below, the parties contest only whether Ortega’s prior conviction was the enumerated felony of “burglary of a dwelling” under the categorical approach. See Dominguez-Ochoa, 386 F.3d at 642-46. In answering that question, we look to the “generic, contemporary” meaning of burglary of a dwelling, employing a “common sense approach.” See United States v. Santiesteban-Hemandez, 469 F.3d 376, 378-79 (5th Cir.2006). Here, Herrera was convicted of “aggravated burglary,” which is “burglary” as defined in Tenn.Code Ann. § 39-14-402, of - a “habitation.” § 39-14-403. Section 39-14-402 provides that: (a) A person commits burglary who, without the effective consent of the property owner: (1) Enters a building other than a habitation (or any portion therefore) not open to the public, with intent to commit a felony, theft or assault; (2) Remains concealed, with the intent to commit a felony, theft or assault, in a building; (3) Enters a building and commits or attempts to commit a felony, theft, or assault; or (4) Enters any freight or passenger car, automobile, truck, trailer, boat, airplane or other motor vehicle with intent to commit a felony, theft or assault or commits or attempts to commit a felony, theft or assault. Herrera’s indictment charged that he “did unlawfully, feloniously, and recklessly enter a habitation without the effective consent of the property owner" }, { "docid": "14265760", "title": "", "text": "F.3d 314, 316 (5th Cir.2002). Our cases recognize that burglary of a building and burglary of a dwelling or habitation are distinct offenses. See, e.g., United States v. Turner, 305 F.3d 349, 351 (5th Cir.2002); United States v. Albert Jackson, 22 F.3d 583, 585 (5th Cir.1994). . United States v. Vargas-Duran, 319 F.3d 194, 196 (5th Cir.2003) (internal quotation and citation omitted). . Texas Penal Code Ann. § 30.02(a) (West Supp.2003). . Texas Penal Code Ann. § 31.07(a) (West 1994). . We have held in cases applying language identical to the commentary accompanying § 2L1.2 that burglary of a building is not a crime of violence as a categorical matter because the state need not prove the use, attempted use, or threatened use of physical force against the person of another to secure a conviction. See Turner, 305 F.3d at 351 (\"The statutory elements of burglary of a building do not make it a per se crime of violence, because they do not necessarily involve use of physical force against the person of another.\"); see also United States v. Rodriguez-Guzman, 56 F.3d 18, 20 (5th Cir.1995) (\"To obtain a conviction under the ... Texas burglary statutes, the state need not prove the use, attempted use, or threatened use of physical force against the person ... of another.”). Thus, our categorical approach means that Rodriguez is not eligible for a crime-of-violence enhancement under § 2L1.2(b)(l)(A)(ii) even if his conviction was premised on his entry of a building without the effective consent of the owner and commission of an assault or other violent felony therein. This is so because a sentencing court may not consider the conduct underlying a prior conviction when applying § 2L1.2(b)(l)(A)(ii). See U.S.S.G. § 2L1.2, comment. (n.l(B)(ii)); Vargas-Duran, 319 F.3d at 196; see also Rayo-Valdez, 302 F.3d at 318 (recognizing that \"the § 2L1.2 definition has eliminated the possibility that a non-enumerated crime risking use of physical force could qualify as a 'crime of violence' \"). . As Rodriguez conceded in the district court, his Texas convictions trigger an eight- level aggravated-felony enhancement. See U.S.S.G. § 2L1.2(b)(1)(C). \"For" }, { "docid": "22623042", "title": "", "text": "(5th Cir. Aug. 14, 2012) (per curiam) (unpublished), deciding that Texas’s definition of “owner” did not bring its burglary-of-a-habitation statute outside the generic definition of burglary for purposes of the Armed Career Criminal Act (“ACCA”). Id. In Joslin, we relied on the Supreme Court’s observation that Congress listed burglary as an enumerated offense in the ACCA because of its “ ‘inherent potential for harm to persons.’ ” Id. at 142, 2012 WL 3488717 at *3 (quoting Taylor v. United States, 495 U.S. 575, 588, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)). “Merely maintaining an inferior possessory interest in a habitation does not extinguish the potential violence that may result when a person enters a habitation with intent to commit theft.” Id. at 144, 2012 WL 3488717 at *4. Though Joslin is unpublished and thus not precedential, it is instructive, its reasoning persuasive. See 5th Cir. R. 47.5.4; Ballard v. Burton, 444 F.3d 391, 401 & n. 7 (5th Cir.2006). Accordingly, the enhancement in this ease was proper. The judgment of sentence is AFFIRMED. . See United States v. Castillo-Morales, 507 F.3d 873, 875 (5th Cir.2007); United States v. Ortega-Gonzaga, 490 F.3d 393, 394-95 (5th Cir.2007). . See United States v. Najera-Mendoza, 683 F.3d 627, 631 & n. 3 (5th Cir.2012) (employing the same analysis to determine whether an offense is a violent felony for purposes of the ACCA and whether an offense is a COV for purposes of the sentencing guidelines)." }, { "docid": "7215517", "title": "", "text": "removed, in violation of 8 U.S.C. § 1326. The presentence report (“PSR”) noted that Bonilla’s base offense level of eight should be increased by sixteen levels, “[s]ince [Bonilla] ha[d] previously been convicted of a crime of violence,” pursuant to U.S. Sentencing Guidelines Manual § 2L1.2(b)(l)(A). J.A. 120. The offense triggering the enhancement was Bonilla’s May 8, 1992 conviction in Texas state court for burglary of a habitation. Bonilla objected to the sentencing enhancement, contending that his Texas conviction did not qualify as a crime of vi olence because it did not satisfy the elements of generic burglary required by Taylor. Specifically, Bonilla argued that because he did not have “the requisite intent to commit a crime” “at the time” that he illegally entered the dwelling, he did not commit generic burglary. Id. 65. The district court rejected Bonilla’s argument. Bonilla, the court found, was convicted under section 30.02(a)(3) of the Texas Penal Code, which provides that “[a] person commits [burglary] if, without the effective consent of the owner, the person ... enters a building or habitation and commits or attempts to commit a felony, theft, or an assault.” Looking to the charging document — which specified that Bonilla “knowingly and intentionally entered] a habitation without the effective consent of ... the owner, and therein attempted to commit and committed theft,” J.A. 36 — the court noted that “theft or attempted theft would require intent,” id. 77, and that the intent “has to be formed at some point before leaving the habitation, because the charge is within the habitation,” id. 80. Thus, the court concluded that Bonilla’s conviction met the elements of generic burglary under Taylor and qualified as a crime of violence under § 2L1.2(b)(l)(a). Applying the sixteen-level sentencing enhancement, the court calculated an advisory Guidelines range of thirty-seven to forty-six months, and sentenced Bonilla to thirty-seven months’ imprisonment. Bonilla timely appealed. II. Whether a prior conviction qualifies as a “crime of violence” is a legal question we review de novo. United States v. Jenkins, 631 F.3d 680, 682 (4th Cir.2011). Under U.S. Sentencing Guidelines Manual § 2L1.2(b)(1)(A), a defendant" }, { "docid": "22623039", "title": "", "text": "PER CURIAM: Francisco Morales-Mota pleaded guilty, without the benefit of a plea agreement, of being unlawfully present in the United States after having been deported. His offense level was enhanced by sixteen under U.S.S.G. § 2L1.2(b)(l)(A)(ii) based on a conviction of burglary of a habitation with intent to commit theft, which was determined to be a crime of violence (“COV”). Morales-Mota ultimately received a forty-six-month sentence, which was at the bottom of the advisory guideline range. Morales-Mota challenges the enhancement, contending that Texas’s burglary-of-a-habitation offense falls outside the generic, contemporary definition of burglary and thus does not constitute a COV. Because Morales-Mota did not raise that objection in the district court, our review is for plain error. See United States v. Chavez-Hernandez, 671 F.3d 494, 497-99 (5th Cir.2012). To succeed under that standard, Morales-Mota must show an error that is clear or obvious and that affects his substantial rights, but even so, we generally will exercise our discretion to correct the error only if it “seriously af fect[s] the fairness, integrity or public reputation of judicial proceedings.” Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) (internal quotation marks and citation omitted). Section 2L1.2(b)(l)(A)(ii) provides for an increase of sixteen to a base offense level if the defendant was previously deported after being convicted of a COV. Among the enumerated COVs listed in the guideline commentary is burglary of a dwelling. § 2L1.2, comment, (n. l(B)(iii)). To determine whether a particular conviction is for an enumerated COV, we compare the generic, contemporary definition of the enumerated crime with the conduct described in the statute of conviction. United States v. Lopez-DeLeon, 513 F.3d 472, 474 (5th Cir.2008). If the statute’s definition of an offense is broader than the generic definition, that offense cannot serve as a predicate for the adjustment. United States v. Sanchez, 667 F.3d 555, 561 (5th Cir.2012). The generic, contemporary definition of burglary of a dwelling is the unlawful or unprivileged entry into, or remaining in, a building, structure, tent, or vessel used for human habitation, with intent to commit a crime." }, { "docid": "7215530", "title": "", "text": "the building, if he did not have it at the moment he entered. The critical question is whether section (a)(3) of the Texas statute “corresponds in substance to the generic meaning of burglary,” Taylor, 495 U.S. at 599, 110 S.Ct. 2143. Bonilla pleaded guilty to an offense under Texas law that required proof of (1) an unlawful entry, (2) into a building or habitation, and (3) the intent to commit a felony, theft, or assault. We hold that these elements satisfy Taylor's description of generic burglary, notwithstanding that Bonilla might not have formulated his intent prior to the unlawful entry. III. For the foregoing reasons, we affirm the district court’s judgment. AFFIRMED . As detailed in the judgment from the Texas conviction, Bonilla pleaded guilty to this offense. . The district court also rejected Bonilla’s argument for a downward variance based on his personal history and circumstances, but this decision is not challenged on appeal. . Although Taylor considered whether a conviction qualified as a \"violent felony” under the ACCA, we apply its analysis to the \"crime of violence” definition as well — with the additional requirement that a burglary qualifying as a \"crime of violence” must involve a dwelling. See United States v. Herrera-Montes, 490 F.3d 390, 392 (5th Cir.2007) (\"Taylor's definition of 'burglary,' ... controls the definition of 'burglary of a dwelling under the Guidelines.''); United States v. Wenner, 351 F.3d 969, 973 (9th Cir.2003) C‘[T]he most logical and sensible reading of the Guidelines ... is to construe 'burglary of a dwelling' as the Taylor definition of burglary, with the narrowing qualification that the burglary occur in a dwelling''). . Under the modified categorical approach, see generally Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), we confirm, as did the district court, that Bonilla entered a habitation. Thus, the requirement that Bonilla was convicted of “burglary of a dwelling/ thereby supporting the \"crime of violence” sentencing enhancement, is satisfied. See U.S. Sentencing Guidelines Manual § 2L1.2 cmt. n. l(B)(iii). Bonilla does not challenge this finding on appeal. TRAXLER, Chief Judge, dissenting: Under" }, { "docid": "7215516", "title": "", "text": "Affirmed by published opinion. Judge DIAZ wrote the majority opinion, in which Judge GREGORY joined. Chief Judge TRAXLER wrote a dissenting opinion. OPINION DIAZ, Circuit Judge: After he pleaded guilty to illegal reentry, Francisco Bonilla received an enhanced sentence based on his prior Texas conviction for burglary of a habitation. Bonilla argues that the district court erred in applying the enhancement because his state conviction under Texas Penal Code section 30.02(a)(3) — which provides that “[a] person commits [burglary] if, without the effective consent of the owner, the person ... enters a building or habitation and commits or attempts to commit a felony, theft, or an assault” — does not satisfy the definition of generic burglary under Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). We disagree and affirm the judgment of the district court. I. Bonilla pleaded guilty to a one-count indictment charging him with knowingly entering the United States without the consent of the Attorney General of the United States after having been previously excluded, deported, or removed, in violation of 8 U.S.C. § 1326. The presentence report (“PSR”) noted that Bonilla’s base offense level of eight should be increased by sixteen levels, “[s]ince [Bonilla] ha[d] previously been convicted of a crime of violence,” pursuant to U.S. Sentencing Guidelines Manual § 2L1.2(b)(l)(A). J.A. 120. The offense triggering the enhancement was Bonilla’s May 8, 1992 conviction in Texas state court for burglary of a habitation. Bonilla objected to the sentencing enhancement, contending that his Texas conviction did not qualify as a crime of vi olence because it did not satisfy the elements of generic burglary required by Taylor. Specifically, Bonilla argued that because he did not have “the requisite intent to commit a crime” “at the time” that he illegally entered the dwelling, he did not commit generic burglary. Id. 65. The district court rejected Bonilla’s argument. Bonilla, the court found, was convicted under section 30.02(a)(3) of the Texas Penal Code, which provides that “[a] person commits [burglary] if, without the effective consent of the owner, the person ... enters a building or" }, { "docid": "21305272", "title": "", "text": "(2005). Section 2L1.2 increases the offense level for unlawfully entering or remaining in the United States by 16 levels if the defendant has a prior conviction for a “crime of violence.” U.S.S.G. § 2L1.2(b)(l)(A)(ii). The commentary to § 2L1.2 defines “crime of violence” as (1) any specific enumerated offense, including “burglary of a dwelling”; or (2) “any offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another.” U.S.S.G. § 2L1.2 cmt. n. l(B)(iii). The Government contends only that Castillo’s burglary conviction constitutes an enumerated “crime of violence” offense, namely, “burglary of a dwelling.” We pretermit discussion whether the offense has as an element the use of force. The determination whether a pri- or conviction is an enumerated “crime of violence” requires an examination of the “generic contemporary meaning” of the offense and a comparison to the actual statute of conviction. See United States v. Murillo-Lopez, 444 F.3d 337, 339 (5th Cir. 2006). This court applies a common-sense approach to elucidate an enumerated offense as that offense “is understood in its ordinary, contemporary, and common meaning.” Id. Under the common-sense approach, a dwelling is any structure, including a tent or vessel, that is used for human habitation. Id. at 345; see also United States v. Mendoza-Sanchez, 456 F.3d 479, 482 (5th Cir.2006). Thus, Castillo’s prior conviction is a “crime of violence” only if it involved burgling a structure, tent, or vessel where someone lives. Next, we compare the common sense definition with the particular subdivision of the second-degree burglary statute under which Castillo was convicted. United States v. Fierro-Reyna, 466 F.3d 324, 327 (5th Cir.2006). “Burglary” under Fla. Stat. § 810.02 means “[e]ntering a dwelling, a structure, or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter.” Fla. Stat. § 810.02(l)(b). “Dwelling” is defined as “a building or conveyance of any kind, including any attached porch, whether such building or conveyance is temporary" }, { "docid": "2134906", "title": "", "text": "definition of burglary of a building nor that of UUMV requires proof of use, attempted use, or threatened use of physical force in order to convict. For instance, a Texas prosecutor could secure a burglary of a building conviction under the 1974 statute by proving that a defendant entered into an unoccupied office budding without consent in an attempt to steal office equipment. Likewise, a Texas prosecutor could secure a conviction under the UUMV statute by proving that a defendant took his friend’s car up to the corner store without permission while the friend was out of town. Neither of these situations involve the use, attempted use, or threatened use of physical force against another person. Therefore, the use of physical force cannot be a necessary or required element of these offenses and, under Vargas-Duran and Gracia-Can-tu, neither of these offenses constitutes a crime of violence that would support a sixteen-level crime-of-violence enhancement under § 2L1.2(b)(l)(A)(ii). In summary, we conclude that Rodriguez’s Texas offense of burglary of a building committed between 1974 and 1990 and his UUMV offense committed in 1992 are not crimes of violence within the meaning of U.S.S.G. § 2L1.2(b)(l)(A)(ii) because neither offense as defined by state law is listed in Application Note l(B)(ii)(II) or has as an element the use, attempted use, or threatened use of physical force against the person of another. Accordingly, we vacate Rodriguez’s sentence and remand the case to the district court for resentenc-ing consistent with this opinion. VACATED AND REMANDED. . See Sentencing Hearing Tr. at pg. 9, ¶¶ 1-5. . United States v. Charles, 301 F.3d 309, 312-13 (5th Cir.2002) (en banc). . Id. at 312. . See U.S.S.G. § 2L1.2(b)(1)(A)(ii) (Nov.2001). . Id. § 2L1.2, cmt. (n.1(B)(ii)). . See United States v. Rayo-Valdez, 302 F.3d 314, 316 (5th Cir.2002). Our cases recognize that burglary of a building and burglary of a dwelling or habitation are distinct offenses. See, e.g., United States v. Turner, 305 F.3d 349, 351 (5th Cir.2002); United States v. Albert Jackson, 22 F.3d 583, 585 (5th Cir.1994). . See Tex. Penal Code Ann. § 30.02 (1990)." }, { "docid": "22722479", "title": "", "text": "did not raise this argument in the district court, review is limited to plain error. See Calverley, 37 F.3d at 162-64. Slaughter concedes that a two-level reduction in his offense level would not affect the applicable sentencing guideline range. If his offense level were reduced from 46 to 44, his offense level would still be treated as the maximum offense level of 43 pursuant to U.S.S.G. Ch.5, Pt. A, comment, (n.2). Because Slaughter concedes that the correction of this alleged error would not change the applicable guideline sentencing range, we decline to address the merits of this claim. See United States v. Lopez, 923 F.2d 47, 51 (5th Cir.1991). Slaughter argues that his conviction should be reversed because the jury was not required to find the quantity of drugs as an element of each of the charged offenses. Slaughter’s argument is foreclosed by this court’s precedent. See United States v. Rios-Quintero, 204 F.3d 214, 215 (5th Cir.2000); United States v. Watch, 7 F.3d 422, 426 (5th Cir.1993). AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4." }, { "docid": "22763743", "title": "", "text": "a dwelling, citing case law from this circuit. In United States v. Hornsby, 88 F.3d 336, 339 (5th Cir.1996), this court found that a conviction for burglary of a habitation qualified as a crime of violence un der U.S.S.G. § 4B1.2(1)(ii). Although the definition of “crime of violence” in § 4B1.1 is slightly different from the definition of the same term in § 2L1.2, both guideline sections list “burglary of a dwelling” as an enumerated crime of violence. In Horns-by, we said that: “... burglary of a habitation is considered a crime of violence.” We read this as a conclusion that the crime “burglary of a habitation” is equivalent to the enumerated offense “burglary of a dwelling.” This conclusion that the prior conviction for burglary of a habitation is an enumerated offense makes irrelevant the difference in the definition of crime of violence in the two guideline sections. The district court therefore did not commit plain error in concluding that Garcia-Mendez’s prior conviction was a crime of violence under § 2L1.1. III. Finally, Garcia argues that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) should be interpreted to overrule Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). As Garcia concedes, this last argument is precluded by existing circuit precedent. See, e.g., United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.2000). rv. For the foregoing reasons, Garcia-Mendez’s sentence is AFFIRMED. . The government suggests that Garcia-Mendez waived this issue by withdrawing his objection that he had not been convicted of the offense burglary of a habitation. We disagree. This is not a situation in which the appellant is attempting to raise the exact objection previously withdrawn at sentencing. See United States v. Musquiz, 45 F.3d 927, 931 (5th Cir.1995). The issue raised in this appeal, that his prior conviction does not fit within the definition of a \"crime of violence” under the applicable guideline provision, is legally distinct from his prior objection questioning what crime he had previously been convicted of. . Garcia-Mendez's indictment does not indicate what" }, { "docid": "22880468", "title": "", "text": "the PSR before the district judge, the judgment for this predicate offense was attached thereto. Conde did not object to the enhancement. With the 16-level crime of violence enhancement, Conde’s final offense level rose to 21. The judge imposed a 57-month prison term, which was at the top of the Guidelines range, plus two years of supervised release. Conde now appeals his sentence. He argues that the burglary conviction supporting his crime of violence enhancement did not qualify as a “crime of violence” under the Sentencing Guidelines. II. Conde challenges his enhancement for the first time on appeal. We consequently review the enhancement for plain error. “[R]eversal is not required unless there is (1) an error; (2) that is clear or obvious; and (3) that affects the defendant’s substantial rights.” United States v. Bishop, 603 F.3d 279, 280 (5th Cir.2010). Even if all these conditions are fulfilled, the appellate court will only reverse if the error “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) (internal quotation marks omitted). Conde was convicted under parts (1) and (3) of the following Texas statute: A person commits an offense if, without the effective consent of the owner, the person: (1) enters a habitation ... not then open to the public, with intent to commit a felony ... or (2) remains concealed, with intent to commit a felony ... in a ... habitation; or (3)enters a ... habitation and commits or attempts to commit a felony.... Tex. Penal Code § 30.02(a). The first question raised is whether the court can consult outside documents to determine whether Conde’s prior burglary conviction constitutes a “crime of violence” under the Sentencing Guidelines. USSG § 2L1.2(b)(l). We hold that we can. Under the Sentencing Guidelines, “crime of violence” convictions include state convictions for “burglary of a dwelling.” USSG § 2L1.2 cmt. n. l(B)(iii). There are two ways we can determine whether Conde’s predicate offense qualifies as a “burglary of a dwelling,” and consequently a “crime of violence.” One is to" }, { "docid": "22763742", "title": "", "text": "violation of Texas law. The Texas statute states that a person commits burglary if he enters a building closed to the public, or a habitation, without the consent of the owner, with the intent to commit a felony, theft, or an assault. Tex. Penal Code § 30.02(a)(1) (2000). Habitation is defined as “a structure or vehicle that is adapted for overnight accommodation of persons, and includes: (A) each separately secured or occupied portion of the structure or vehicle; and (B) each structure appurtenant to or connected with the structure or vehicle.” Tex. Penal Code § 30.01(1)(2000). Garcia-Mendez argues that his offense of burglary of a habitation does not fit within the enumerated offense of burglary of a dwelling because the definition of a “habitation” under the Texas offense, which includes “each structure appurtenant to or connected with the structure or vehicle,” is broader than the definition of a “dwelling” as is commonly understood in a criminal law context. The government argues that burglary of a habitation is equivalent to the enumerated offense of burglary of a dwelling, citing case law from this circuit. In United States v. Hornsby, 88 F.3d 336, 339 (5th Cir.1996), this court found that a conviction for burglary of a habitation qualified as a crime of violence un der U.S.S.G. § 4B1.2(1)(ii). Although the definition of “crime of violence” in § 4B1.1 is slightly different from the definition of the same term in § 2L1.2, both guideline sections list “burglary of a dwelling” as an enumerated crime of violence. In Horns-by, we said that: “... burglary of a habitation is considered a crime of violence.” We read this as a conclusion that the crime “burglary of a habitation” is equivalent to the enumerated offense “burglary of a dwelling.” This conclusion that the prior conviction for burglary of a habitation is an enumerated offense makes irrelevant the difference in the definition of crime of violence in the two guideline sections. The district court therefore did not commit plain error in concluding that Garcia-Mendez’s prior conviction was a crime of violence under § 2L1.1. III. Finally, Garcia argues" }, { "docid": "22763741", "title": "", "text": "and obvious; and (3) the error affected the defendant’s substantial rights. When these elements are present, [this Court] may exercise [its] discretion to correct the error only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. (Internal citations and quotation marks omitted). Section 2L1.2(b)(1)(A)(ii) provides for a 16-level enhancement to a defendant’s offense level when a defendant was previously deported after a conviction for a crime of violence. A conviction can qualify as a “crime of violence” under this provision in one of two ways. First, it qualifies if the conviction is one of the offenses enumerated as crimes of violence. Second, if the conviction is not for one of the enumerated offenses, it still qualifies if it is “any offense under federal, state or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another.” U.S.S.G. § 2L1.2, comment n.1(B)(iii). The enumerated crimes include “burglary of a dwelling.” Garcia-Mendez was previously convicted of burglary of a habitation in violation of Texas law. The Texas statute states that a person commits burglary if he enters a building closed to the public, or a habitation, without the consent of the owner, with the intent to commit a felony, theft, or an assault. Tex. Penal Code § 30.02(a)(1) (2000). Habitation is defined as “a structure or vehicle that is adapted for overnight accommodation of persons, and includes: (A) each separately secured or occupied portion of the structure or vehicle; and (B) each structure appurtenant to or connected with the structure or vehicle.” Tex. Penal Code § 30.01(1)(2000). Garcia-Mendez argues that his offense of burglary of a habitation does not fit within the enumerated offense of burglary of a dwelling because the definition of a “habitation” under the Texas offense, which includes “each structure appurtenant to or connected with the structure or vehicle,” is broader than the definition of a “dwelling” as is commonly understood in a criminal law context. The government argues that burglary of a habitation is equivalent to the enumerated offense of burglary of" }, { "docid": "2175919", "title": "", "text": "space used or designed for human habitation. Under Florida’s definition of burglary of a dwelling, the building or conveyance must be designed for lodging at night, but the curtilage does not. In United States v. Gomez-Guerra, 485 F.3d 301, 303-04 (5th Cir.2007), the Fifth Circuit addressed head-on whether Florida’s burglary of a dwelling, and its inclusion of curtilage, is categorically the equivalent of burglary of a dwelling under the Guidelines and concluded it was not. Generic burglary of a dwelling, the court said, does not cover the burglary of curtilage— “the grounds around the dwelling” — it only prohibits the unlawful entry into the dwelling itself. Id. at 304. Because, in the court’s view, the inclusion of “curtilage” extends burglary of a dwelling in Florida beyond its generic meaning, the court held that the defendant’s 1997 Florida burglary conviction was not a crime of violence under § 2L1.2(b) of the Guidelines. Id.; accord United States v. Rodriguez-Lopez, 472 Fed.Appx. 333, 333-34 (5th Cir.2012) (finding Florida’s inclusion of curtilage in its definition of dwelling renders the statute outside of the contemporary meaning of the enumerated burglary of a dwelling crime of violence under § 2L1.2). We agree with the Fifth Circuit and hold the inclusion of “curtilage” makes Florida’s definition of burglary of a dwelling broader than the generic meaning of burglary of a dwelling under the Guidelines. Human habitation is the sin qua non of a “dwelling.” In cases where courts found a particular state statute’s definition of burglary of a dwelling corresponded with its generic definition under the Guidelines, each statute limited “dwelling” to places of human habitation. And, the spaces at issue in those cases — tents and vessels in Murillo-Lopez, 444 F.3d at 345, hotel guest rooms in McClenton, 53 F.3d at 587, and the unspecified structures used as “weekend fishing retreats” in Graham, 982 F.2d at 316, all satisfied the human-habitation test. See, e.g., McClenton, 53 F.3d at 587 (“hotel guest room is intended for use as human habitation, albeit, in most circumstances, on a transient or temporary basis”). None of the statutes at issue in" }, { "docid": "22880469", "title": "", "text": "129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) (internal quotation marks omitted). Conde was convicted under parts (1) and (3) of the following Texas statute: A person commits an offense if, without the effective consent of the owner, the person: (1) enters a habitation ... not then open to the public, with intent to commit a felony ... or (2) remains concealed, with intent to commit a felony ... in a ... habitation; or (3)enters a ... habitation and commits or attempts to commit a felony.... Tex. Penal Code § 30.02(a). The first question raised is whether the court can consult outside documents to determine whether Conde’s prior burglary conviction constitutes a “crime of violence” under the Sentencing Guidelines. USSG § 2L1.2(b)(l). We hold that we can. Under the Sentencing Guidelines, “crime of violence” convictions include state convictions for “burglary of a dwelling.” USSG § 2L1.2 cmt. n. l(B)(iii). There are two ways we can determine whether Conde’s predicate offense qualifies as a “burglary of a dwelling,” and consequently a “crime of violence.” One is to look only to the elements of Conde’s predicate offense. If § 30.02(a)’s elements are the same as or narrower than those of the generic offense of burglary of a dwelling, Conde’s predicate offense qualifies as a “crime of violence.” See Descamps v. United States, — U.S. -, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013). The Supreme Court has called this test the categorical approach, as the test looks to the category of conduct the statute criminalizes rather than the facts underlying the defendant’s predicate offense. The second way to determine whether Conde’s prior conviction qualifies as a “burglary of a dwelling” under the Sentencing Guidelines is to look beyond the elements of the statute to a limited set of documents. Under this test, called the modified categorical approach, the court can look at so-called Shepard documents, which include the charging document, written judicial confession, and judgment. United States v. Garcia-Arellano, 522 F.3d 477, 480-81 (5th Cir.2008). The categorical approach is the default test. Cf. Descamps, 133 S.Ct. at 2281. The modified categorical approach, however," } ]

[ { "docid": "253616", "title": "", "text": "and Blue Shield of Florida, 116 F.3d 1364, 1371 (11th Cir.1997) (quotations omitted). In addition, Rule 9(b) must be read in conjunction with Rule 8(a) so as not to “abrogate the concept of notice pleading.” Id. Thus, Rule 9(b) may be satisfied if the complaint sets forth the following: (1) precisely what statements were made in what documents or oral representations or what omissions were made; and (2) the time and place of each statement and the person responsible for making (or in the case of omission, not making) same; and (3) the content of such statements and the manner in which they misled the plaintiff; and (4) what the defendant obtained as a consequence of the fraud. Id. In response, however, the Trustee argues — and the Court agrees — that courts should relax the specificity requirements where the plaintiff is a trustee in bankruptcy. In Re Sverica Acquisition Corp., 179 B.R. 457, 463 (Bankr.E.D.Pa.1995) (“Given the inevitable lack of knowledge concerning the acts of fraud previously committed against the debtor, a third party, courts have held the particularity requirement of [Rule 9(b)] may be relaxed.”); In Re O.P.M. Leasing Services, Inc., 32 B.R. 199, 203 (Bankr.S.D.N.Y.1983) (discussing the liberality in pleading requirements in bankruptcy cases). With this standard in mind and based on a detailed review of the allegations in the amended complaint, the Court finds the Trustee has met the requirements of Rule 9(b). More relevant, however, has been the passage of the PSLRA. The PSLRA modified and strengthened — beyond Rule 9(b) — the pleading requirements in securities fraud actions. Section 78u-4(b)(l) of the statute provides: In any private action arising under this chapter in which the plaintiff alleges the defendant (A) Made an untrue statement of a material fact; or (B) Omitted to state a material fact necessary in order to make the statements made, in light of the circumstances in which they were made, not misleading; the complaint shall specify each statement alleged to have been misleading, the reason or reasons why the statement is misleading, and, if an allegation regarding the statement or" } ]

[ { "docid": "8568858", "title": "", "text": "claim of fraud, cases have held that the Rule 9(b) requirement of particularity is relaxed.”). There is no question that Rule 9(b) applies to adversary proceedings in bankruptcy which include a claim for relief under §§ 544 or 548, whether it is based upon actual or constructive fraud. See, Levitt v. Riddell Sports (In re MacGregor Sporting Goods, Inc.), 199 B.R. 502 (Bankr.D.N.J., 1995) (applying Rule 9(b) to fraudulent conveyance claim under § 548); In re O.P.M. Leasing Services, Inc., 32 B.R. 199 (Bankr.D.N.Y., 1983) (same); Pardo v. Gonzaba (In re APF Co.), 308 B.R. 183, 188 (Bankr.D.Del., 2004) (same); Forman v. Jeffrey Matthews Fin. Group, LLC (In re. Halpert & Co., Inc.), 254 B.R. 104 (Bankr.D.N.J., 1999) (same). Plaintiff has also argued that in the event that we find that Rule 9(b) applies to this proceeding, the Complaint has included sufficient facts and details to place Defendant on notice of the constructive fraud which Plaintiff has alleged. Plaintiff directs the Court to a footnote in Board of Trustees of Teamsters Local 863 Pension Fund v. Foodtown, Inc., which states that “the requirements of rule 9(b) may be satisfied if the complaint describes the circumstances of the alleged fraud with ‘precise allegations of date, time, or place’ or by using some means of ‘injecting precision and some measure of substantiation into their allegations of fraud.’ ” Board of Trustees of Teamsters Local 863 Pension Fund v. Foodtown, Inc., 296 F.3d 164, 173 n. 101 (3d Cir.(N.J.), 2002) (quoting Naporano Iron & Metal Co. v. American Crane Corp., 79 F.Supp.2d 494 (D.N.J., 1999)). Even applying the liberal or relaxed standard of Rule 9(b) for bankruptcy trus tees, it is evident in this proceeding that Plaintiff has failed to plead with sufficient particularity to comply with the Rule. Other than merely identifying the allegedly fraudulent transfers with the information on Exhibit A, Count II of the Complaint fails to allege with specificity any facts in support of the fraudulent transfer claim. Plaintiff has alleged no facts or other supporting information which would establish the fraudulent nature of those alleged transfers and has" }, { "docid": "17154084", "title": "", "text": "by him under section 544(b)(1) of the Bankruptcy Code which permits a trustee to avoid any transfer that is voidable by an unsecured creditor under applicable non-bankruptcy law. The Moving Defendants seek to dismiss these counts on the grounds that the Trustee has failed to plead fraud with the requisite particularity. Generally, a complaint only requires a “short and plain” statement of the claim that will put the defendant on notice of the plaintiffs claim and the grounds upon which the claim rests. Fed. R. Bankr.P. 7008(a). See also, TWA Inc. Post Confirmation Estate v. Marsh USA Inc. (In re TWA Inc. Post Confirmation Estate), 305 B.R. 228, 232 (Bankr.D.Del.2004) (citing Conley v. Gibson, 355 U.S. 41, 41-45, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). This is a relatively low bar for the plaintiff to hurdle. In contrast, fraud must be pled with particularity. Fed. R. Bankr.P. 7009. See also, Pardo v. Gonzaba (In re APF Co.), 308 B.R. 183, 188 (Bankr.D.Del.2004). The purpose of the rule is to “place the defendants on notice of the precise misconduct with which they are charged.” Seville Indus. Mach. Corp. v. Southmost Mach. Corp., 742 F.2d 786, 791 (3d Cir.1984). To state a claim for fraud, however, all the plaintiff need do is inform the defendant of the particular conduct which is alleged to have been fraudulent. Id. This requirement is relaxed even more when the plaintiff is a third party, such as a trustee, because a third party generally has less information on which to base its allegation. APF, 308 B.R. at 188; Aluminum Mills, 132 B.R. at 883 n. 10 (finding that creditors’ committee met Rule 9(b) requirements by pleading “upon information and belief’ the “specific injuries it seeks to redress, namely the assertedly fraudulent and preferential transfers and breaches of fiduciary duty ... and the legal theories upon which it bases said claims.”). Courts have acknowledged that it is often difficult to prove actual intent to defraud. Consequently, they have held that “certain ‘badges of fraud’ can form the basis for a finding of actual intent to hinder, delay or" }, { "docid": "4567041", "title": "", "text": "pleading requirements for trustees because \"a trustee is an outsider to the transaction who must plead fraud from second-hand knowledge.”) (citing In re Park South Securities, LLC, 326 B.R. 505, 517-18 (Bankr.S.D.N.Y.2005)). At least one court in the Fifth Circuit, however, has declined to relax the requirements of Rule 9(b) for bankruptcy trustees. See In re NE 40 Partners, Ltd. Partnership, 440 B.R. 124, 128-29 (Bankr.S.D.Tex.2010). In the NE 40 Partners case, the court observed that the Fifth Circuit has taken a strict view of the pleading requirements of Rule 9(b). The court also noted that the relaxed view of Rule 9(b) in the bankruptcy context originated in cases decided before Iqbal and Twombly. The court need not decide this question because the Trustee has not satisfied even the liberal standard applicable to trustees. Even in cases where courts applied a more liberal Rule 9(b) standard, a trustee must plead facts, not conclusions, showing the circumstances of the defendants' alleged fraudulent conduct. While the judicial gloss on Rule 9(b) — such as the Second Circuit’s pre-PSLRA \"strong inference of fraudulent intent\" standard under Rule 9(b)— may be subject to relaxation, Rule 9(b) does not distinguish among different classes of plaintiffs in imposing a heightened pleading standards. See, e.g., In re Opus East, LLC, 480 B.R. 561, 573 (Bankr.D.Del.2012) (even under a relaxed Rule 9(b) pleading standard, the trustee failed to \"allege who made a statement, where and when the statement was made, or provide the context in which the statement was made”). . TOUSA and its subsidiaries designed, built and marketed residential real estate developments. 422 B.R. at 787. TOUSA became enmeshed in litigation over a failed joint venture. TOUSA ultimately settled this litigation and took out a new loan to fund the settlement. Id. Even though certain of its subsidiaries (later debtors in bankruptcy) had no liability with respect to that litigation, these subsidiaries granted security interests in their assets to secure the new loan. Id. The court held that these subsidiaries received \"no direct value\" and \"minimal indirect benefits” from the transaction and, therefore, concluded that there were" }, { "docid": "1313144", "title": "", "text": "requirements of Rule 9(b) may be relaxed.”) (citing In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1418 (3d Cir.1997)). Despite the Supreme Court’s move toward a more heightened pleading standard, Delaware bankruptcy courts have continued to apply the Third Circuit’s relaxed view toward Rule 9(b) and held that “[a] trustee is generally afforded greater liberality in pleading fraud, since he is a third-party outsider to the debtor’s transactions. Nevertheless, these relaxed Rule 9(b) requirements require the trustee to do more than merely identify the allegedly fraudulent transfers.” Aphton Corp. v. Sonafi Pasteur (In re Aphton Corp.), 423 B.R. 76, 85 (Bankr.D.Del.2010) (footnotes omitted); see also Official Comm. Of Unsecured Creditors of Fedders N. Am., Inc. v. Goldman Sachs Credit Partners L.P. (In re Fedders N. Am., Inc.), 405 B.R. 527, 544 (Bankr.D.Del.2009) (noting that a trustee’s lack of knowledge about previous fraud should allow him to plead with less specificity than would normally be allowed) (citing Pardo v. Gonzaba (In re APF Co.), 308 B.R. 183, 188 (Bankr.Del.2004)). While this Court understands the relaxed Rule 9(b) exception and the rationale set forth by the Delaware bankruptcy courts, this Court declines to apply that standard for the following reasons: (1) the Fifth Circuit reads Rule 9(b) strictly; and (2) a Chapter 7 trustee has many tools in his tool belt that would enable him to gather the requisite knowledge to file a fraudulent transfer complaint without having to rely on a more relaxed standard of pleading. 1. The Fifth Circuit Interprets Rule 9(b) Strictly Even prior to the increased pleading requirements of Twombly and Iqbal, Fifth Circuit precedent has strictly interpreted Rule 9(b). Indeed, the Fifth Circuit requires plaintiffs to “specify the statements contended to be fraudulent, identify the speaker, state when and where the statements were made, and explain why the statements were fraudulent.” Williams v. WMX Techs., Inc., 112 F.3d 175, 177 (5th Cir.1997); Nathenson v. Zonagen, Inc., 267 F.3d 400, 412 (5th Cir.2001). “Put simply, Rule 9(b) requires the ‘who, what, when, where, and how’ to be laid out.” Benchmark Elecs. v. J.M. Huber Corp., 343" }, { "docid": "1313141", "title": "", "text": "pursuant to 28 U.S.C. §§ 1334(b) and 157(a). This dispute is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A), (H), and (O). Additionally, this matter is a core proceeding under the general “catch-all” language of 28 U.S.C. § 157(b)(2). See In re South- mark Corp., 163 F.3d 925, 930 (5th Cir.1999) (“[A] proceeding is core under section 157 if it invokes a substantive right provided by title 11 or if it is a proceeding that, by its nature, could arise only in the context of a bankruptcy case.”); De Montaigu v. Ginther (In re Ginther Trusts), Adv. No. 06-3556, 2006 WL 3805670, at *19 (Bankr.S.D.Tex. Dec.22, 2006) (holding that a matter may constitute a core proceeding under 28 U.S.C. § 157(b)(2) “even though the laundry list of core proceedings under § 157(b)(2) does not specifically name this particular circumstance”). Venue is proper pursuant to 28 U.S.C. §§ 1408(1) & 1409(a). B. The Standard of Review When Evaluating Fraud Complaints Complaints that allege fraud must meet a higher standard of pleading. Fed. R.Civ.P. 9(b). Rule 9(b) requires complaints asserting fraud to set forth the facts with sufficient particularity so as to “provide defendants adequate notice of the nature and grounds of the claim.” Floyd v. CIBC World Mkts., Inc., 426 B.R. 622, 652 (S.D.Tex.2009) (citing Hart v. Bayer Corp., 199 F.3d 239, 248 n. 6 (5th Cir.2000)). This Court, however, must determine whether this heightened level of particularity under Rule 9(b) applies to Chapter 7 trustees asserting fraud causes of action. This Court has only found one Texas bankruptcy court which has applied a relaxed standard of fraud pleading to Chapter 7 bankruptcy trustees. Pate v. Hunt (In re Hunt), 136 B.R. 437, 452 (Bankr.N.D.Tex.1991) (“The Court also emphasizes that a less stringent standard prevails in a bankruptcy proceeding involving fraudulent transfer claims brought by a trustee.”) (citing Hassett v. Weissman (In re O.P.M. Leasing Serv., Inc.) 35 B.R. 854, 862 (Bankr.S.D.N.Y.1983)). The rationale for this less stringent standard is that “the third party trustee is generally pleading fraud on second-hand information.” Id. This issue has not been addressed, however," }, { "docid": "20237844", "title": "", "text": "dismissal. A. Pleading the Identity of the Predicate Creditor. Across his avoidance litigation, the Trustee pled the following as to the predicate creditor: At all times material hereto, there was and is at least one or more creditors who held and who hold unsecured claims against the Debtor that was and is allowable under Bankruptcy Code § 502 or that was and is not allowable only under Bankruptcy Code § 502(e). The Transfers are avoidable under applicable nonbankruptcy law by a creditor holding an unsecured claim in the bankruptcy case. Complaint in Kelley v. Alper, ADV 10-4293 [Dkt. No. 1], 12. The defense argues that dismissal is appropriate because this passage does not plead the existence and identity of a specific creditor that could have sued on the relevant date to avoid the challenged payments from the Debtors. They characterize the Trustee’s wording as impermis-sibly abstract, a “naked assertion” that only summarizes the nature of a statutory element. Their point is that a bland statement in the passive voice that there existed a creditor that met the statutory requirement, without either naming it or describing it by specific characteristics, cannot pass muster under either the plausibility standard or the more general observations of Twombly and Iqbal. The defense cites several on-point published decisions: In re Sverica Acquisition Corp., Inc., 179 B.R. 457, 465 (Bankr. E.D.Pa.1995) (such pleading “fails to adequately place Defendants on notice of whose rights the Trustee is claiming under”); Neilson v. Union Bank of Cal., N.A., 290 F.Supp.2d 1101, 1146-1148 (C.D.Cal.2003). These decisions pre-date the issuance of Twombly and Iqbal. However, the defense argues that they are more aligned with the post -Twombly standard for plausibility and specificity, than the on-point decisions that the Trustee cites. For his part, the Trustee relies principally on two decisions from the bankruptcy forum in the Southern District of New York. They include one out of the case commenced in the wake of the failure of Bernard Madoffs Ponzi scheme: In re Bernard L. Madoff Inv. Secs. LLC, 445 B.R. 206 (Bankr.S.D.N.Y.2011) (“Madoff/Chais ”); and In re Musicland Holding Corp., 398" }, { "docid": "11694852", "title": "", "text": "least a minimal factual basis for their conclusory allegations of scienter. Connecticut National Bank v. Fluor Corp., 808 F.2d 957, 962 (2d Cir.1987) (citations omitted). Appellants’ complaint contains nothing more than the sort of conclusory allegations of knowledge which were found to be insufficient in Connecticut National Bank, id. After stating that Salomon Brothers was retained by AMI to assist in the sale of the company, and that Salomon distributed to CB & R a prospectus on AMI which contained allegedly false and misleading information, the complaint simply alleges that Salomon Brothers knew that AMI management did not subscribe to the optimistic outlook reflected in the prospectus. The complaint does not allege any facts to suggest who at Salomon Brothers possessed such knowledge, when and how they obtained the knowledge, or even why anyone at Salomon Brothers should have known that the views expressed in the prospectus did not represent the true beliefs of AMI management. Thus, the district court was correct in finding that “[t]he conclusory statements that Salomon knew that AMI did not sub scribe to the beliefs reported in the Confidential Memorandum do not allow for any inference, let alone a strong one, regarding Salomon’s knowledge.” Appellants argue that a more relaxed standard of pleading should apply to their fraud claims, citing several bankruptcy cases which have required less particularity in pleading when claims were asserted by a trustee. See, e.g., In Re O.P.M. Leasing Services, Inc., 32 B.R. 199 (Bkrtcy.1983). The rationale for relaxing the particularity requirement in such cases is that the trustee is a “third party, who is pleading fraud on secondhand information,” id. at 202. However, even the so-called relaxed standard does not eliminate the particularity requirement, although we recognize that the degree of particularity required should be determined in light of such circumstances as whether the plaintiff has had an opportunity to take discovery of those who may possess knowledge of the pertinent facts. A complaint like plaintiff’s, which fails to adduce any specific facts supporting an inference of knowledgeable participation in the alleged fraud, will not satisfy even a relaxed standard." }, { "docid": "3876087", "title": "", "text": "Ameritrust Co., N.A., 848 F.2d at 680 (citations omitted). This principle has been applied in bankruptcy cases when a trustee is bringing the claim and as such is considered to be a “third party outsider to the allegedly fraudulent transaction which, initially, has only second hand information upon which to rely in framing issues.” Official Comm. of Unsecured Creditors, Inc. v. ASEA Brown Boveri, Inc. (In re Grand Eagle Cos., Inc.), 288 B.R. 484, 495 (Bankr.N.D.Ohio 2003) (citations omitted). 2. Rule 9(b) does not apply to constructive fraudulent transfer claims. The Sixth Circuit has not yet addressed whether the particularity require ment of Rule 9(b) applies to fraudulent transfer claims. A few courts have held that Rule 9(b) does apply to constructive fraudulent transfer claims. See, e.g., OHC Liquidation Trust v. Nucor Corp. (In re Oakwood Homes Corp.), 325 B.R. 696, 698 (Bankr.D.Del.2005); Eleven v. Norkus (In re Chochos), 325 B.R. 780, 783 (Bankr.N.D.Ind.2005). Most cases have held that Rule 9(b) does not apply to such claims. See, e.g., State Bank & Trust Co. v. Spaeth (In re Motorwerks, Inc.), 371 B.R. 281, 295 (Bankr.S.D.Ohio 2007); Brandt v. Trivest II, Inc. (In re Plassein Int’l. Corp.), 352 B.R. 36, 40 (Bankr.D.Del.2006). These cases reason that constructive fraudulent transfer claims do not necessarily require proof that the defendant engaged in some form of deceit, misrepresentation or fraudulent activity. In fact, a fraudulent transfer claim based on constructive fraud need only allege that the transfer was made without reasonably equivalent value while the debtor was insolvent. In other words, there is no reason to require a trustee to plead a defendant’s fraud or misconduct with specificity if such fraud or misconduct is not an element of the trustee’s fraudulent transfer claim. Motorwerks, 371 B.R. at 295 (citing Giuliano v. U.S. Nursing Group (In re Lexington Healthcare Group, Inc.), 339 B.R. 570, 574-75 (Bankr.D.Del.2006) (internal citations omitted)); see also Plassein Int’l. Corp., 352 B.R. at 40; Sharp Int’l Corp. v. State Street Bank (In re Sharp Int’l Corp.), 281 B.R. 506, 518 (Bankr.E.D.N.Y. 2002). In holding that Rule 9(b) does not apply to" }, { "docid": "16973574", "title": "", "text": "(or in this case, the Estate Representative) is bringing suit, or if that fact is simply a matter for trial.”); Geron v. Schulman (In re Manshul Constr. Corp.), No. 97 CIV. 885(JGK), 2000 WL 1228866, at *44 (S.D.N.Y. Aug.30, 2000)(“Courts disagree as to whether a trustee is required to establish the existence of a specific creditor in order to have standing under Section 554(b)[sic ].”); compare Kaliner v. Load Rite Trailers, Inc. (In re Sverica Acquisition Corp., Inc.), 179 B.R. 457, 465 (Bankr.E.D.Pa.1995) (allegation “that ‘[a]t the time of the 1990 leveraged buy-out, an unsecured creditor of the Debtor existed’ ... is insufficient to satisfy even the minimal pleading requirements of Fed.R.Civ.P. 8 since it fails to adequately place Defendants on notice of whose rights the Trustee is claiming under. Such notice is imperative here because the Trustee’s rights under Code § 544(b) are derivative of whatever rights the alleged creditor had under state law. It is crucial therefore that Defendants have proper notice of the identity of the alleged creditor in order that they might confirm or deny the validity of that entity’s claim.”) and Neilson v. Union Bank of Cal., N.A., 290 F.Supp.2d 1101, 1148 (C.D.Cal.2003)(“Unless Neilson is required to allege specifically the identity of the unsecured creditor(s) whose rights he is asserting, defendants will have no way to ‘assess[ ] the initial strength of [his] claim, ... preserv[e] relevant evidence, ... identify! ] any related counter- or cross-claims, and ... prepar[e] an appropriate answer.’ ”)(alteration in original) (citation omitted) with Zahn v. Yucaipa Capital Fund, 218 B.R. 656, 673-74 (D.R.I.1998)(“The Complaint clearly satisfies the requirements of Rules 8 and 9(b).... Plaintiffs failure to name an existing creditor is of no moment, for he is not required to prove his case at this point; his allegation that such a creditor exists suffices.”); Giuliano v. U.S. Nursing Corp. (In re Lexington Healthcare Group, Inc), 339 B.R. 570, 576 (Bankr.D.Del.2006)(“The Court agrees with the Trustee and those cases which hold that the Trustee need not identify the name of a specific creditor on which the Trustee relies. The Trustee must" }, { "docid": "1313147", "title": "", "text": "“collect and reduce to money the property of the estate.” 11 U.S.C. § 704(a)(1); Ferguson v. John Hancock Life Ins. Co., No. H-07-3501, 2008 WL 8084951, at *1, 2008 U.S. Dist. LEXIS 112660, at *2 (S.D.Tex. Jan.11, 2008); see also In re Am. Solar King Corp., 90 B.R. 808, 828 (Bankr.W.D.Tex.1988) (noting that a debtor-in-possession has a fiduciary duty to unsecured creditors to recover and preserve property of the estate). In declining to allow a more relaxed pleading standard for Chapter 7 trustees, the Court seeks to encourage trustees to utilize all of the tools in their tool box to investigate adequately the financial affairs of the debtor before initiating a fraudulent transfer adversary proceeding. For example, a Chapter 7 trustee has the power to use Bankruptcy Rule 2004 examinations — effectively permitting him to go on “licensed fishing expeditions” — which allows him to gather enough information so that the “relaxed standard” promulgated by the Delaware bankruptcy courts is not necessary. See, e.g., In re Bounds, No. 09-12799, 2010 WL 3447683, at *5-6, 2010 Bankr.LEXIS 2983, at *14 (Bankr.W.D.Tex. Aug.31, 2010) (noting that numerous courts have likened a Bankruptcy Rule 2004 examination to a fishing expedition). Indeed, the discovery tools available to a Chapter 7 trustee should allow a trustee to present the “who, what, where, when, and how,” thus forcing trustees to do their homework before filing an adversary proceeding and subsequently improving judicial economy. Benchmark Elecs., 343 F.3d at 724 (5th Cir.2003). Accordingly, for all of the reasons set forth above, this Court declines to apply the relaxed pleading standards for Chapter 7 trustees asserting fraud, and instead, holds that a Chapter 7 trustee is held to the same heightened pleading standard as every other plaintiff that brings a fraud cause of action under Rule 9(b). C. The Trustee Has Failed to Plead with Particularity His Causes of Action Against Graham. Analyzing the Trustee’s pleadings strictly, pursuant to Rule 9(b), the Trustee has failed to plead his causes of action with sufficient particularity. Indeed, the Trustee’s allegations of fraud are general in nature and the Complaint does" }, { "docid": "17543444", "title": "", "text": "transactions resulted in a massive drain of LBHI liquidity and an unjustified transfer of property to JPMC prior to LBHI’s bankruptcy petition (¶ 74); and (v) each transaction occurred at a time when LBHI was insolvent and/or undercapitalized (¶¶ 5, 30, 60, 66). See First Am. Compl. JPMC argues that the Court may not apply the so-called “relaxed” pleading standards that would permit a complaint seeking to avoid an actual fraudulent transfer to survive a motion to dismiss based solely on allegations of circumstantial badges of fraud. See 5/10/11 Hr’g Tr. 55:13-56:13. JPMC argues that: (i) this approach ceases to be valid in light of the recent Supreme Court decisions of Twom-bly and Iqbal, and (ii) such an approach is not available to a debtor-in-possession. See Reply 34-5. While Twombly and Iqbal together have toughened the pleading standards for purposes of judging the adequacy of a complaint under Rule 12(b)(6), those cases do not speak directly to questions as to the sufficiency of a complaint that alleges badges of fraud as a means to infer fraudulent intent for purposes of Rule 9(b). To support its position, JPMC relies on a single recent decision issued by a bankruptcy court in Texas. See Reply 34 (citing Airport Blvd. Apartments, Ltd. v. NE 10 Partners, Ltd. P’ship (In re NE 40 Partners, Ltd. P’ship), 440 B.R. 124, 127-8 (Bankr.S.D.Tex.2010) (declining to adopt a “more flexible approach” to Rule 9(b) when analyzing actual fraud claims asserted by third-party bankruptcy trustees in light of Twombly and Iqbal)); 5/10/11 Hr’g Tr. 55:13-21. This isolated case is insufficient to cause the Court to break from other persuasive authority confirming that the Rule 9(b) standard may be relaxed in appropriate circumstances. See, e.g., Official Comm. of Unsecured Creditors of Fedders N. Am., Inc. v. Goldman Sachs Credit Partners L.P. (In re Fedders N. Am. Inc.), 405 B.R. 527, 544-45 (Bankr.D.Del.2009) (citation omitted) (post-Twombly and Iqbal, recognizing that courts continue to relax pleading standards and allow plaintiff trustees to allege “badges of fraud” because “actual fraud is rarely proven by direct-evidence, as individuals are rarely willing to admit such" }, { "docid": "3876086", "title": "", "text": "9(b)’s requirements as follows: In our recent decision in Bledsoe II, we reiterated our long-standing holding that, under Rule 9(b), a plaintiff must “allege the time, place, and content of the alleged misrepresentation ... the fraudulent scheme; the fraudulent intent of the defendants; and the injury resulting from the fraud.” As Bledsoe II also made clear, however, this requirement should be understood in terms of Rule 9(b)’s broad purpose of ensuring that a defendant is provided with at least the minimum degree of detail necessary to begin a competent defense. “Essentially, [a complaint] should provide fair notice to [defendants and enable them to ‘prepare an informed pleading responsive to the specific allegations of fraud.’ ” United States ex rel. SNAPP, Inc. v. Ford Motor Co., 532 F.3d 496, 504 (6th Cir.2008) (quoting United States ex rel. Bledsoe v. Cmty. Health Sys., Inc., 501 F.3d 493, 504 (6th Cir.2007)) (internal citations omitted). The requirements of Rule 9(b) may be relaxed when a plaintiff alleges facts particularly within the knowledge of the defendant. Michaels Bldg. Co. v. Ameritrust Co., N.A., 848 F.2d at 680 (citations omitted). This principle has been applied in bankruptcy cases when a trustee is bringing the claim and as such is considered to be a “third party outsider to the allegedly fraudulent transaction which, initially, has only second hand information upon which to rely in framing issues.” Official Comm. of Unsecured Creditors, Inc. v. ASEA Brown Boveri, Inc. (In re Grand Eagle Cos., Inc.), 288 B.R. 484, 495 (Bankr.N.D.Ohio 2003) (citations omitted). 2. Rule 9(b) does not apply to constructive fraudulent transfer claims. The Sixth Circuit has not yet addressed whether the particularity require ment of Rule 9(b) applies to fraudulent transfer claims. A few courts have held that Rule 9(b) does apply to constructive fraudulent transfer claims. See, e.g., OHC Liquidation Trust v. Nucor Corp. (In re Oakwood Homes Corp.), 325 B.R. 696, 698 (Bankr.D.Del.2005); Eleven v. Norkus (In re Chochos), 325 B.R. 780, 783 (Bankr.N.D.Ind.2005). Most cases have held that Rule 9(b) does not apply to such claims. See, e.g., State Bank & Trust Co. v." }, { "docid": "17543445", "title": "", "text": "fraudulent intent for purposes of Rule 9(b). To support its position, JPMC relies on a single recent decision issued by a bankruptcy court in Texas. See Reply 34 (citing Airport Blvd. Apartments, Ltd. v. NE 10 Partners, Ltd. P’ship (In re NE 40 Partners, Ltd. P’ship), 440 B.R. 124, 127-8 (Bankr.S.D.Tex.2010) (declining to adopt a “more flexible approach” to Rule 9(b) when analyzing actual fraud claims asserted by third-party bankruptcy trustees in light of Twombly and Iqbal)); 5/10/11 Hr’g Tr. 55:13-21. This isolated case is insufficient to cause the Court to break from other persuasive authority confirming that the Rule 9(b) standard may be relaxed in appropriate circumstances. See, e.g., Official Comm. of Unsecured Creditors of Fedders N. Am., Inc. v. Goldman Sachs Credit Partners L.P. (In re Fedders N. Am. Inc.), 405 B.R. 527, 544-45 (Bankr.D.Del.2009) (citation omitted) (post-Twombly and Iqbal, recognizing that courts continue to relax pleading standards and allow plaintiff trustees to allege “badges of fraud” because “actual fraud is rarely proven by direct-evidence, as individuals are rarely willing to admit such an intent”); Chase Bank, U.S., N.A. v. Vanarthos (In re Vanarthos), 445 B.R. 257, 263 (Bankr.S.D.N.Y.2011) (Glenn, J.) (post-Twombly and Iqbal, concluding that a complaint alleging fraud and seeking non-dischargeability of debt under section 523(a)(2)(A) satisfied the “particularity” requirement of Rule 9(b) by alleging a number of “circumstantial factors”). Pleading the badges of fraud has been found to satisfy the intent requirement of section 548(a)(1)(A). See, e.g., Enron, 328 B.R. at 73, 74 (denying motion to dismiss claims brought by a debtor-in-possession to avoid an actual fraudulent transfer, and concluding that those claims satisfied the “relaxed” pleading requirements of Rule 9(b), when the complaint alleged badges of fraud). Applying such a relaxed standard for Lehman also is appropriate in view of the enormous disruption caused by the bankruptcy filing and the immediate loss of so many senior level employees with institutional memory. See id. (finding that the debtor-in-possession was operating under “the same disadvantage” usually faced by a trustee with second-hand knowledge of the relevant facts because personnel and senior management with first-hand knowledge of" }, { "docid": "21938390", "title": "", "text": "permit a curative amendment, unless an amendment would be inequitable or futile.”). Consequently, the Court will grant the Trustee leave to amend Counts I and II within 30 days. b. Identification of a Specific Creditor USNC also alleges that the fraudulent transfer counts of the Complaint should be dismissed because the Trustee fails to identify the name of a specific creditor whose claim existed at the time of the alleged overpayments and on the petition date. USNC contends that this information is necessary in order to establish the Trustee’s standing pursuant to section 544(b). Connecticut law provides that only a creditor whose claim existed as of the date of the alleged fraudulent transfer has standing to pursue a constructive fraud claim. See, e.g., Daly v. Richardson (In re Carrozzella & Richardson), 302 B.R. 415, 420 (Bankr.D.Conn.2003). USNC acknowledges that courts are split on whether a plaintiff must plead the specific name of a creditor. Compare Kaliner v. Load Rite Trailers, Inc. (In re Sverica Acquisition Corp.), 179 B.R. 457 (Bankr.E.D.Pa.1995) (“Such notice is imperative here because the Trustee’s rights under Code section 544(b) are derivative of whatever rights the alleged creditor had under state law. It is crucial therefore that the Defendants have proper notice of the identity of the alleged creditor in order that they might confirm or deny the validity of that entity’s claim.”) with Brandt v. Hicks, Muse & Co. (In re Healthco Int’l, Inc.), 195 B.R. 971, 980 (Bankr.D.Mass.1996) (“The Trustee alleges he represents ‘at least one qualified, unsecured creditor holding an allowable unsecured claim which existed at the time of the LBO....’ Under the liberal rule of notice pleading, that allegation is enough. The Trustee need not name the creditor.”) USNC argues that those courts that require the identification of a creditor are correct because the defendant is entitled to notice of the creditor whose rights are being asserted so that it has the opportunity to answer the complaint, to test the strength of the alleged creditor’s claim, and to preserve relevant evidence. USNC notes that in this case the alleged fraudulent transfers occurred in" }, { "docid": "1313146", "title": "", "text": "F.3d 719, 724 (5th Cir.2003). In contrast, as explained supra, the Third Circuit approaches Rule 9(b) with a much more flexible approach. As such, compared to Texas bankruptcy courts, the Delaware bankruptcy courts have greater latitude, which allows them to give Chapter 7 trustees leeway when analyzing their pleadings under Rule 9(b). In contrast, in the Fifth Circuit, “allegations of fraudulent predicate acts [ ] are subject to the heightened pleading requirements of Rule 9(b).” In re Sigma Sys., 2010 WL 148176, at *3, 2010 Bankr.LEXIS 109, at *11 (citing First Capital Asset Mgmt., Inc. v. Satinwood, Inc., 385 F.3d 159, 178 (2d Cir.2004)). 2. Chapter 7 trustees have a Duty to Investigate The Fifth Circuit has noted that a trustee has a number of fiduciary duties, including a duty to investigate the financial affairs of the debtor. In re Evangeline Ref. Co., 890 F.2d 1312, 1323 (5th Cir.1989); see also In re Red River Energy, Inc., 409 B.R. 163, 181 (Bankr.S.D.Tex. 2009); 11 U.S.C. § 704(4). Moreover, a Chapter 7 trustee is directed to “collect and reduce to money the property of the estate.” 11 U.S.C. § 704(a)(1); Ferguson v. John Hancock Life Ins. Co., No. H-07-3501, 2008 WL 8084951, at *1, 2008 U.S. Dist. LEXIS 112660, at *2 (S.D.Tex. Jan.11, 2008); see also In re Am. Solar King Corp., 90 B.R. 808, 828 (Bankr.W.D.Tex.1988) (noting that a debtor-in-possession has a fiduciary duty to unsecured creditors to recover and preserve property of the estate). In declining to allow a more relaxed pleading standard for Chapter 7 trustees, the Court seeks to encourage trustees to utilize all of the tools in their tool box to investigate adequately the financial affairs of the debtor before initiating a fraudulent transfer adversary proceeding. For example, a Chapter 7 trustee has the power to use Bankruptcy Rule 2004 examinations — effectively permitting him to go on “licensed fishing expeditions” — which allows him to gather enough information so that the “relaxed standard” promulgated by the Delaware bankruptcy courts is not necessary. See, e.g., In re Bounds, No. 09-12799, 2010 WL 3447683, at *5-6, 2010" }, { "docid": "19283172", "title": "", "text": "must plead fraud from second-hand knowledge.” Nisselson v. Softbank AM Corp. (In re MarketXT Holdings Corp.), 361 B.R. 369, 395 (Bankr.S.D.N.Y.2007) (internal quotation marks omitted) (quoting Picard v. Taylor (In re Park S. Secs., LLC), 326 B.R. 505, 517-18 (S.D.N.Y.2005)); Secs. Investor Prot. Corp. v. Stratton Oakmont, Inc., 234 B.R. 293, 310 (Bankr.S.D.N.Y.1999) (citation omitted). Accordingly, courts have recognized that “allegations of circumstantial evidence are sufficient to establish fraudulent intent,” Pereira v. Grecogas Ltd. (In re Saba Enters., Inc.), 421 B.R. 626, 643 (Bankr. S.D.N.Y.2009), because “the trustee’s lack of personal knowledge is compounded with complicated issues and transactions which extend over lengthy periods of time.” Stratton Oakmont, 234 B.R. at 310 (citation omitted). However, “relaxing the particularity requirement in bankruptcy cases should not be construed to eliminate that requirement altogether.” Id. at 311 (citation omitted). Rule 9(b) imposes additional limitations. First, a pleader cannot allege fraud based upon information and belief unless the facts are “peculiarly within the opposing party’s knowledge.” Schlick v. Penn-Dixie Cement Corp., 507 F.2d 374, 379 (2d Cir.1974), cert. denied, 421 U.S. 976, 95 S.Ct. 1976, 44 L.Ed.2d 467 (1975), overruled on other grounds by Virginia Bankshares, Inc. v. Sandberg, 501 U.S. 1083, 1100 n. 9, 111 S.Ct. 2749, 115 L.Ed.2d 929 (1991); accord Campaniello Imps., Ltd. v. Saporiti Italia S.p.A., 117 F.3d 655, 664 (2d Cir.1997) (citation omitted). In those cases, the pleader must nonetheless allege facts upon which the belief is founded. Campaniello Imps., 117 F.3d at 664. In addition, “group pleading is generally forbidden because each defendant is entitled to know what he is accused of doing.” O’Connell v. Arthur Andersen LLP (In re AlphaStar Ins. Grp. Ltd.), 383 B.R. 231, 257-58 (Bankr.S.D.N.Y.2008) (citation omitted); see also Di Vittorio, 822 F.2d at 1247 (“Where multiple defendants are asked to respond to allegations of fraud, the complaint should inform each defendant of the nature of his alleged participation in the fraud.”). B. The Preliminary Forfeiture Order Does Not Bar the Trustee From Asserting Her Avoidance Actions A threshold issue that the Court must determine is whether the funds transferred from the 5966 Account" }, { "docid": "22049404", "title": "", "text": "as stated previously, a false claim must be presented for any liability to attach under the False Claims Act. And Clausen provides no support for his allegations that any claims were actually submitted. . We also reject Clausen's argument that we should apply a more lenient pleading standard because evidence of fraud was uniquely held by the defendant. Clausen is not without avenues for obtaining information. See United States ex rel. Russell v. Epic Healthcare Mgmt. Group, 193 F.3d 304, 308 (5th Cir.1999) (declining to relax Rule 9(b)'s pleading standard because \"documents containing the requisite information were possessed by other entities, such as the Healthcare Financing Administration”). Even if we were not to find that Clausen might obtain the necessary billing information from the Government, Clausen's conclusory statements are insufficient to justify relaxation. See United States ex rel. Thompson v. Columbia/HCA Healthcare Corp., 125 F.3d 899, 903 (5th Cir.1997) (requiring factual basis for belief and noting that this exception \"must not be mistaken for license to base claims of fraud on speculation and conclusory allegations” and that \"even where allegations are based on information and belief, the complaint must set forth a factual basis for such belief”) (citations omitted); Stinson, 755 F.Supp. at 1052 (observing that even when standard is relaxed, \"pleaders must allege that the necessary information lies within the defendant's control, and then allegations must be accompanied by a statement of facts upon which the allegations are based”) (quotations and citation omitted). Clausen also argues that Rule 9(b) should be relaxed because the fraud was complex. This exception may apply in appropriate circumstances to aid those alleging prolonged multi-act schemes. However, even under this exception, Clausen would have to allege at least some examples of actual false claims to lay a complete foundation for the rest of his allegations, which he has failed to do. See, for example, Thompson, 125 F.3d at 903 (affirming dismissal of allegations after recognizing that while pleading on information and belief may be sufficient under this exception, it does not constitute a \"license to base claims of fraud on speculation and conclusory allegations”" }, { "docid": "4567040", "title": "", "text": "purposes of section 548, the reachback period would cover the payments made during the two years prior to the filing. . There is an argument that the individual payments made pursuant to the CSA and PSA are not '‘severable” from the underlying agreements for statute of limitations purposes and, therefore, that the individual payments are also barred by limitations. See In re Le Café Creme, Ltd., 244 B.R. 221, 238 (Bankr.S.D.N.Y.2000). The court need not address this question because, even if this limitations argument does not come into play, the payments in the present case are payments that satisfy an antecedent debt, and thus are not avoidable based on the facts pled in the Complaint. See In re Trinsum Group, Inc., 460 B.R. 379, 391 n. 9 (Bankr.S.D.N.Y.2011) (regardless of whether payments are severable for limitations purposes, they are unavoidable payments of an antecedent debt). . Some courts relax the heightened pleading requirements of Rule 9(b) for allegations of fraud pled by bankruptcy trustees. See In re Marketxt Holdings Corp., 361 B.R. at 385 (relaxing pleading requirements for trustees because \"a trustee is an outsider to the transaction who must plead fraud from second-hand knowledge.”) (citing In re Park South Securities, LLC, 326 B.R. 505, 517-18 (Bankr.S.D.N.Y.2005)). At least one court in the Fifth Circuit, however, has declined to relax the requirements of Rule 9(b) for bankruptcy trustees. See In re NE 40 Partners, Ltd. Partnership, 440 B.R. 124, 128-29 (Bankr.S.D.Tex.2010). In the NE 40 Partners case, the court observed that the Fifth Circuit has taken a strict view of the pleading requirements of Rule 9(b). The court also noted that the relaxed view of Rule 9(b) in the bankruptcy context originated in cases decided before Iqbal and Twombly. The court need not decide this question because the Trustee has not satisfied even the liberal standard applicable to trustees. Even in cases where courts applied a more liberal Rule 9(b) standard, a trustee must plead facts, not conclusions, showing the circumstances of the defendants' alleged fraudulent conduct. While the judicial gloss on Rule 9(b) — such as the Second Circuit’s" }, { "docid": "14884222", "title": "", "text": "where a case involves multiple defendants, F.R.C.P. 9(b) requires that the complaint allege facts specifying each defendant’s contribution to the fraud, identifying which defendant is responsible for which act. See Ellison v. American Image Motor Co., Inc., 36 F.Supp.2d 628, 640-41 (S.D.N.Y.1999); Daly v. Castro Llanes, 30 F.Supp.2d 407, 414 (S.D.N.Y.1998) (citing DiVittorio v. Equidyne Extractive Indus., Inc., 822 F.2d 1242, 1247 (2d Cir.1987)). Generally, fraud allegations cannot be based upon information and belief. See DiVittorio, 822 F.2d at 1247. There is a recognized exception to this general rule, however, where the facts are in the control of the opposing party or within the opposing party’s knowledge, as long as these allegations are accompanied by a statement of the facts upon which the belief is based. Id.; see Wexner v. First Manhattan Co., 902 F.2d 169, 172 (2d Cir.1990) (“Where pleading is permitted on information and belief, a complaint must adduce specific facts supporting a strong inference of fraud or it will not satisfy even a relaxed pleading standard.”); Sunrise Industrial Joint Venture v. Ditric Optics, Inc., 873 F.Supp. 765, 772 (E.D.N.Y.1995) (“Indeed, the particularity requirement of Rule 9(b) is appropriately relaxed where the individual defendant is a corporate insider.”); White Metal Rolling, 222 B.R. at 428. Greater liberality in the pleading of fraud is particularly appropriate in bankruptcy cases, because, as here, it is often the trustee, a third party outsider to the fraudulent transaction, that must plead the fraud on secondhand knowledge for the benefit of the estate and all of its creditors. See White Metal Rolling, 222 B.R. at 428 (“Since a bankruptcy trustee rarely has personal knowledge of the events preceding his appointment, he can plead fraud based upon information and belief provided he pleads the basis of his belief.”); Atlanta Shipping Corp., Inc. v. Chemical Bank, 631 F.Supp. 335, 348 (S.D.N.Y.1986), aff'd 818 F.2d 240 (2d Cir.1987); Hassett v. Zimmerman (In re O.P.M. Leasing Services, Inc.), 32 B.R. 199, 203 (Bankr.S.D.N.Y.1983) (citing Schlick v. Penn-Dixie Cement Corp., 507 F.2d 374. 379 (2d Cir.1974)); Ahead By A Length, 100 B.R. at 166. When the trustee’s lack" }, { "docid": "21938389", "title": "", "text": "the transfers simply restate the statutory requirements. “Fair notice requires something more than a quotation from the statute .... ” Global Link, 327 B.R. at 718 (citing Hassett v. Zimmerman (In re O.P.M. Leasing Servs., Inc.), 32 B.R. 199, 203 (Bankr.S.D.N.Y.1983)). The Court concludes, therefore, that the facts pled in the Complaint are not sufficient to support the Trustee’s allegations of fraudulent transfer. Counts I and II of the Complaint must be dismissed for failure to plead with the requisite specificity. Rule 15(a) provides, however, that “leave [to amend] shall be freely given when justice so requires.” Fed.R.Civ.P. 15(a). It would be inappropriate to dismiss Counts I and II with prejudice, as USNC has requested, simply because the Trustee has not directly requested leave to amend and has not identified additional facts upon which an amended complaint would rely. See Alston v. Parker, 363 F.3d 229, 235 (3d Cir.2004) (‘We have held that even when a plaintiff does not seek leave to amend, if a complaint is vulnerable to 12(b)(6) dismissal, a District Court must permit a curative amendment, unless an amendment would be inequitable or futile.”). Consequently, the Court will grant the Trustee leave to amend Counts I and II within 30 days. b. Identification of a Specific Creditor USNC also alleges that the fraudulent transfer counts of the Complaint should be dismissed because the Trustee fails to identify the name of a specific creditor whose claim existed at the time of the alleged overpayments and on the petition date. USNC contends that this information is necessary in order to establish the Trustee’s standing pursuant to section 544(b). Connecticut law provides that only a creditor whose claim existed as of the date of the alleged fraudulent transfer has standing to pursue a constructive fraud claim. See, e.g., Daly v. Richardson (In re Carrozzella & Richardson), 302 B.R. 415, 420 (Bankr.D.Conn.2003). USNC acknowledges that courts are split on whether a plaintiff must plead the specific name of a creditor. Compare Kaliner v. Load Rite Trailers, Inc. (In re Sverica Acquisition Corp.), 179 B.R. 457 (Bankr.E.D.Pa.1995) (“Such notice is imperative here" } ]

[ { "docid": "2058904", "title": "", "text": "BAILEY BROWN, Senior Circuit Judge. This appeal arises from state-law discrimination claims against Defendants AT & T Information Systems and certain of its executives (“AT & T”). Plaintiff-Appellant, Deraid Van Camp, filed this action in state court. On the ground that it raises a federal question, AT & T removed the case to federal court. Van Camp now appeals the dismissal of his claims following the district court’s denial of his motion for remand to state court and Van Camp’s refusal to assert a claim under federal law. The issue before us is whether Van Camp’s discrimination claims, resolution of which requires consideration of the impact of a retirement and benefit agreement entered into by Van Camp and AT & T pursuant to AT & T’s pension plan, fall within the preemptive force of § 514(a), 29 U.S.C. § 1144(a), of the Employment Retirement Income Security Act (“ERISA”). Because AT & T has sustained its burden of showing that Van Camp’s claims relate to AT & T’s pension plan and, therefore, present a federal question, we affirm the district court’s denial of Van Camp’s motion to remand and the dismissal of the action. I After approximately thirty-two years of service to AT & T, Van Camp, a 51-year-old operations manager, was reassigned from a staff position in Michigan to one that required him to make frequent trips to New Jersey. For reasons known to AT & T at the time of the reassignment, including the illness of Mrs. Van Camp, Van Camp considered himself unavailable for “extensive travel.” Faced with accepting either an early retirement package or demotion, Van Camp retired. He signed an agreement attesting that he retired voluntarily and understood that his election to retire under AT & T’s enhanced pension plan was irrevocable. Van Camp does not dispute that this pension agreement is subject to the requirements of and controlled by ERISA. Asserting that age and sex discrimination violative of Michigan’s Elliott-Larsen Civil Rights Act motivated AT & T’s decision to reassign him and that the reassignment forced his retirement, Van Camp filed suit against AT &" } ]

[ { "docid": "22312357", "title": "", "text": "question must appear on the face of the complaint, and that the plaintiff may, by eschewing claims based on federal law, choose to have the cause heard in state court.” Caterpillar, Inc. v. Williams, 482 U.S. 386, 398-99, 107 S.Ct. 2425, 2433, 96 L.Ed.2d 318 (1987). See R. Levy, Federal Preemption, Removal Jurisdiction, and the Well-Pleaded Complaint Rule, 51 U.Chi.L.Rev. 634, 642 (1984) (well-pleaded complaint rule based on ease of administration because it “saves considerable time and expense and enhances predictability, reliability, uniformity and reviewability of results”). The defendant employer contends that the doctrine of removal based on “complete preemption” applies under ERISA because the defense to the state elaim as alleged in the defendant’s Notice of Removal is based on the fact that the plaintiff has taken early retirement in lieu of discharge, is receiving benefits under a retirement agreement governed by federal ERISA law and has signed a release of claims form in exchange for retirement benefits. Because the plaintiffs claim necessarily calls into question the validity of his retirement agreement which is said to be governed exclusively by federal ERISA law, the defendant contends that federal ERISA law entirely displaces state discrimination law under federal preemption rules and vests removal jurisdiction in the federal courts under the “complete preemption” exception enunciated in Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987). The district court agreed with defendant’s argument. The court allowed removal and then dismissed plaintiffs state claim as preempted by ERISA, relying on Metropolitan Life, as interpreted by Van Camp v. AT & T Information Systems, 963 F.2d 119 (6th Cir.), cert. denied, — U.S. -, 113 S.Ct. 365, 121 L.Ed.2d 278 (1992), a case directly on point in which the Sixth Circuit allowed a plaintiffs state law discrimination claim to be removed and dismissed as preempted by an employer’s early retirement plan governed by federal ERISA law. Other cases decided by different panels in the Sixth Circuit conflict with the Van Camp decision — particularly Alexander v. Electronic Data Sys. Corp., 13 F.3d 940 (6th Cir.1994), Tisdale v." }, { "docid": "3745492", "title": "", "text": "that does not relate to an ERISA plan, and therefore is not pre-empted by § 1144, does not raise a federal question sufficient to warrant removal due to ERISA’s § 1132 enforcement scheme. A court should therefore begin its removal analysis by asking whether § 1144 preempts the plaintiffs state law claim — that is, by asking whether the plaintiffs claim “relates to” an ERISA plan. If the claim does not meet this standard, then, in all but the most unimaginable circumstances, the claim will not fall within the ambit of the jurisdictional grant created by § 1132’s enforcement scheme, and accordingly cannot be removed. If, instead, plaintiffs claim does relate to an ERISA plan, then it will give rise to a substantial federal question and it almost certainly will be enforceable under § 1132 (absent a plaintiff-identity problem like that in Alexander), and thus will be removable to federal court. III. The first question then is whether Plaintiffs age discrimination claim “relates to” the ERISA welfare benefits plan between Plaintiff and Defendant. Put differently, the Court must decide whether a reference to “lost benefits” in a prayer for relief has “too tenuous, remote, or peripheral” an effect on Defendant’s employee benefit plan to be preempted by ERISA. See Van Camp, 963 F.2d at 122. Courts must review three factors when analyzing ERISA’s preemption of a state law claim: (1) whether the claim arises under a law that represents a traditional exercise of state authority; (2) whether invocation of the state law will affect the relationship among the principal ERISA entities (i.e., Plaintiff and Defendant); and (3) whether the state claim would have “more than an incidental effect” on an ERISA plan. Van Camp, 963 F.2d at 123. None of these factors in the present case favors pre-emption. Plaintiffs age discrimination claim clearly represents a “traditional exercise of state authority”: the Sixth Circuit has commented that “state laws traditionally have played a significant role in protecting citizens from age ... discrimination.” Van Camp, - 963 F.2d at 123. Plaintiffs claim, furthermore, does not directly affect Defendant’s status as employer or" }, { "docid": "22312361", "title": "", "text": "make [§ 1132(a)(1)(B) ] suits brought by participants or beneficiaries federal questions for the purpose of federal court jurisdiction....” Id. at 66, 107 S.Ct. at 1547. Therefore, in order to come within the exception a court must conclude that the common law or statutory claim under state law should be characterized as a superseding ERISA action “to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan,” as provided in § 1132(a)(1)(B). v The Court specifically stated “ERISA pre-emption, without more, does not convert a state claim into an action arising under federal law.” Metropolitan Life, at 64, 107 S.Ct. at 1547. Section 1144 falls precisely into- this category. It allows ERISA to preempt state laws when they “relate to” matters governed by ERISA but does not create a federal cause of action for matters which only “relate to” ERISA’s field of concern. Thus, § 1144 preemption does not create a federal cause of action itself, and cannot convert a state cause of action into a federal cause of action under the well-pleaded complaint rule. As a consequence, no removal jurisdiction exists under § 1144. When we look past the complaint before us, the plaintiffs cause of action or basic claim has none of the characteristics of a § 1132(a)(1)(B) action to enforce the ERISA agreement. This action claims that the defendant-employer threatened to discharge the plaintiff because of his age unless he took early retirement. It is a straight state age discrimination case which has no counterpart or superseding cause of action in ERISA. It is an action to set aside and escape from the early retirement agreement, not to recover under it or to “enforce” it or to assert “rights to future benefits under the terms of the plan.” In his complaint, plaintiff tendered back amounts heretofore received by him under the early retirement plan. No cause of action created by ERISA may fairly be read to supersede this age discrimination claim, and" }, { "docid": "4340703", "title": "", "text": "Shield of Michigan, 52 F.3d 1395, 1401 (6th Cir. 1995); Tolton, 48 F.3d at 941-42. Both McSharry’s Tennessee statutory whistleblower claim and his Tennessee common law claim that he was wrongfully discharged in contravention of Tennessee public policy are preempted by ERISA, 29 U.S.C. § 1144(a). Because McSharry’s claims depend upon the existence of ERISA plans and alleged violations of fiduciary duties imposed by ERISA, his claims “relate to” ERISA plans within the meaning of § 1144(a). ERISA creates a substantive element of McSharry’s causes of action and his claims turn upon a fiduciary’s duties under ERISA. Anderson, 11 F.3d at 1314 (state law wrongful discharge claim based on plaintiff employee’s refusal to commit violations of ERISA and reporting ERISA violations to employer preempted under 11 U.S.C. § 1144(a)); Authier, 757 F.2d 796; McLean, 777 F.Supp. at 1483; Andrews v. Alaska Operating Engineers-Employers Training Trust Fund, 871 P.2d 1142 (Alaska 1994). In Authierthe Sixth Circuit determined that permitting an ERISA fiduciary to bring a state law cause of action for wrongful discharge in contravention of established public policy (i.e., ERISA) would thwart the purpose of Congress in enacting ERISA. Id. at 802. Simply because a state law claim is preempted by ERISA under 29 U.S.C. § 1144(a) does not mean the preempted claim is automatically removable pursuant to 28 U.S.C. §§ 1331 and 1441. Removal and federal preemption are distinct concepts. Moreover, ordinary federal preemption and complete federal preemption are distinguishable concepts. Wright, 262 F.3d at 614-15; Lazorko v. Pennsylvania Hosp., 237 F.3d 242, 248, 250-51 (3rd Cir. 2000); In re U.S. Healthcare, Inc., 193 F.3d 151, 160 (3rd Cir.1999); Copling v. Container Store, Inc., 174 F.3d 590, 594 (5th Cir.1999); Dukes, 57 F.3d at 355; Warner, 46 F.3d at 535. ERISA preemption under 29 U.S.C. § 1144(a), without more, does not convert a state law claim into one arising under federal law for purposes of removal and federal question jurisdiction under 28 U.S.C. § 1331. Metropolitan Life, 481 U.S. at 64, 107 S.Ct. 1542; Wright, 262 F.3d at 614; Warner, 46 F.3d at 534-35. Although a state law claim" }, { "docid": "8644263", "title": "", "text": "the Longshore and Harbor Workers' Compensation Act), cert. denied, 493 U.S. 1074, 110 S.Ct. 1121, 107 L.Ed.2d 1028 (1990). The specific question of whether complete preemption applies to § 360k(a) of the MDA is one of first impression in the courts of appeals. District courts are divided on the issue. Compare Richardson v. Advanced Cardiovascular Sys., Inc., 865 F.Supp. 1210 (E.D.La.1994) (holding complete preemption applies) with Goldstein v. W.L. Gore & Assocs., Inc., 887 F.Supp. 168 (N.D.Ill. 1995) (refusing to extend complete preemption). . The defense to plaintiff's claim was based on the fact that plaintiff had taken early retirement in lieu of discharge, was receiving benefits under an agreement governed by federal ERISA law, and had signed a release of claims form in exchange for the retirement benefits. Warner, 46 F.3d at 533. . This section states, in relevant part: [N]o State or political subdivision of a State may establish or continue in effect with respect to a device intended for human use any requirement— (1) which is different from, or in addition to, any requirement applicable under this chapter to the device, and (2) which relates to the safety or effectiveness of the device or to any other matter included in a requirement applicable to the device under this chapter. 21 U.S.C. § 360k(a). SUHRHEINRICH, Circuit Judge, dissenting. Because I believe that the “complete preemption” doctrine should be applied to allow removal jurisdiction in this case, I respectfully dissent. In concluding that the “complete preemption” corollary to the well-pleaded complaint rule should not be invoked when a defendant seeks to remove on the basis of the Medical Device Amendments to the Food, Drug and Cosmetics Act (“MDA”), 21 U.S.C. § 360, the majority relies on our en banc decision in Warner v. Ford Motor Co., 46 F.3d 531 (6th Cir.1995). In Warner, we held that no removal jurisdiction exists under Section 514 of the Employee Retirement Income and Security Act of 1974 (“ERISA”), 29 U.S.C. § 1144, because “§ 1144 preemption does not create a federal cause of action itself, and cannot convert a state cause of action" }, { "docid": "4397961", "title": "", "text": "ádded). Section 1132 is the civil enforcement provision. “A civil action may be brought ... by a participant or beneficiary ... to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan.” 29 U.S.C. §. 1132(a)(1)(B) (1988). In Warner, we held that [Section 1144] allows ERISA to preempt state laws when they “relate to” matters governed by ERISA but does not create a federal cause of action for matters which only “relate to” ERISA’s field of concern. Thus[,] § 1144 preemption does not create a federal cause of action itself, and cannot convert a state cause of action into a federal cause of action under the well-pleaded complaint rule. As a consequence, no removal jurisdiction exists under § 114,4,. [However,] State causes of action not covered by § 1132(a)(1)(B) may still be subject to a preemption claim under § 1144(a) ... because the state law at issue may “relate to” a pension or employee benefit plan. But such actions are not subject to removal. Removal and preemption are two distinct concepts. “The fact that a defendant might ultimately prove that a plaintiffs claims are pre-empted” — for example under § 1144(a) — “does not establish that they are removable to federal court. Caterpillar [Inc. v. Williams], 482 U.S. [386,] 398 [107 S.Ct. 2425, 2432, 96 L.Ed.2d 318 (1987)]. The federal preemption defense in such nonremovable cases would be decided- in state court_ Warner, 46 F.3d at 534-35 (emphasis added). Therefore, were this simply a ease involving state claims not covered by Section 1132(a)(1)(B), its removal would be improper under Warner. This appears to be the situation here because Zuniga is neither a plan participant nor a beneficiary, although he does seek to recover benefits from an employee benefit plan. However, Count II, the Due Process claim, complicates matters further. Despite the fact that ERISA preemption does not confer federal jurisdiction over these claims, any civil action of which the district court has original jurisdiction may" }, { "docid": "2058916", "title": "", "text": "entitled to recover on the theory that, as he claims, his retirement was forced by AT & T’s age and sex discrimination and, therefore, was not voluntary, a court first would have to rule on the validity of the retirement agreement. Such a determination could be made only with reference to ERISA and would affect the existing benefit plan and the relations between Van Camp and AT & T as “principal ERISA entities.” See Neusser, 810 F.2d at 556. As to the third Neusser factor, a finding that Van Camp was forced to retire and is entitled to back pay, front pay, and additional pension benefits would substantially alter the purportedly “irrevocable” agreement under which Van Camp is receiving benefits. We find, therefore, that, under the facts of this case, the age- and sex-discrimination claims that Van Camp asserts would have more than an incidental effect on the existing pension plan. A state-court proceeding would, of necessity, involve determination of Van Camp’s status as a participant in AT & T’s pension plan. The foregoing analysis reveals that AT & T’s preemption defense has merit. Although Van Camp seeks to invoke state laws that represent a traditional exercise of state authority, his claims would have more than an incidental effect on an existing pension plan and on the relations between AT & T as employer and Van Camp as beneficiary. Our determination is consistent with Ingersoll-Rand, which teaches that, when “the existence of a pension plan is a critical factor in establishing liability under the State’s wrongful discharge law,” ERISA preemption applies. 111 S.Ct. at 483. Because the application of state law in this case is preempted and federal principles must be employed to resolve the issues raised by Van Camp’s claims, the case was properly removed to federal court. Cf. Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 406, 108 S.Ct. 1877, 1881-82, 100 L.Ed.2d 410 (1988) (LMRA preemption of state-law claim “inextricably intertwined” with collective bargaining agreement); Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 217, 105 S.Ct. 1904, 1914, 85 L.Ed.2d 206 (1985) (LMRA preemption of" }, { "docid": "22312366", "title": "", "text": "a case not covered by § 1132(a)(1)(B) and only arguably covered by § 1144(a). It said erroneously that plaintiffs state cause of action arises under federal law for purposes of removal but then dismissed it because federal law grants no superseding or related cause of action. Van Camp failed to distinguish for removal purposes between a section of a federal statute, § 1132(a)(1)(B), designed to occupy the regulatory field with respect to a particular subject and to create a superseding cause of action (namely, an action to enforce ERISA contracts by beneficiaries) and a statutory section creating ordinary preemption where conflicting state laws are arguably “superseded” without creating the right of removal, as is the ease with § 1144(a). Thus the Van Camp case must be overruled. Our decision here is in accord with the results reached in a similar case by the Second Circuit. Lupo v. Human Affairs Int’l, Inc., 28 F.3d 269 (2d Cir.1994) (even if state law claim preempted by ERISA, removal not authorized). Accordingly, the judgment of the District Court is REVERSED and the case REMANDED for further proceedings as outlined above. . Section 1441(b) provides: Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought. . The Employee Retirement Income and Security Act of 1974, 29 U.S.C. § 1132(e), provides for federal jurisdiction of actions under 29 U.S.C. 1132(a)(1)(B) \"by a participant or beneficiary [in an ERISA plan] ... to recover benefits due 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.” Section 1144 is the express preemption section of ERISA. It provides (with certain exceptions not relevant here)" }, { "docid": "4397960", "title": "", "text": "ordinarily a federal defense to the plaintiffs suit. As a defense, it does not appear on the face of a well-pleaded complaint, and, therefore does not authorize removal to federal court.” Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63, 107 S.Ct. 1542, 1546, 95 L.Ed.2d 55 (1987). However, Metropolitan Life recognized a narrow exception to this rule for “complete preemption.” Still, that exception is narrowly limited in the ERISA context to state common law or statutory claims equivalent to ERISA civil enforcement ac tions governed by 29 U.S.C. § 1132(a)(1)(B) because “the legislative history consistently sets out this clear intention to make [§ 1132(a)(1)(B) ] suits brought by participants or beneficiaries federal questions for the purpose of federal court jurisdiction....” Warner, 46 F.3d at 534 (quoting Metropolitan Life, 481 U.S. at 66, 107 S.Ct. at 1547). Section 1144 is the ERISA preemption provision; it 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) (1988) (emphasis ádded). Section 1132 is the civil enforcement provision. “A civil action may be brought ... by a participant or beneficiary ... to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan.” 29 U.S.C. §. 1132(a)(1)(B) (1988). In Warner, we held that [Section 1144] allows ERISA to preempt state laws when they “relate to” matters governed by ERISA but does not create a federal cause of action for matters which only “relate to” ERISA’s field of concern. Thus[,] § 1144 preemption does not create a federal cause of action itself, and cannot convert a state cause of action into a federal cause of action under the well-pleaded complaint rule. As a consequence, no removal jurisdiction exists under § 114,4,. [However,] State causes of action not covered by § 1132(a)(1)(B) may still be subject to a preemption claim under § 1144(a) ... because the state law at issue may “relate to”" }, { "docid": "23121737", "title": "", "text": "a court considering Hook’s claim will have to “examine” MMC’s plan. The waiver, which is an integral part of the plan, is also a significant factor in determining the validity of Hook’s claim, MMC argues. Thus, while an unsafe workplace claim may otherwise be unrelated to an ERISA plan, MMC concludes, the claim necessarily relates to the plan once a court has to consider whether Hook has waived her claim, evidence of which is included in the plan. In addition to Christopher, MMC relies on a Sixth Circuit opinion to argue that mere consideration of the waiver by a court triggers preemption. Van Camp v. AT & T Info. Sys., 963 F.2d 119 (6th Cir.1992). In Van Camp, an employee, who refused to be reassigned, was faced with the option of either retiring early or being demoted. The employee chose to retire, whereupon the employee signed a statement saying he was retiring voluntarily and that he understood that his election to retire under the employer’s ERISA pension plan was irrevocable. The employee later sued the employer, alleging that the employer’s efforts to reassign him were discriminatorily motivated and, therefore, violated state laws against discrimination. Without relinquishing his rights under the pension plan, the employee sought back pay, front pay, and compensatory and exemplary damages. The Sixth Circuit, relying in part on our decision in Sommers Drug Stores, held that the employee’s claims were preempted. Van Camp, 963 F.2d at 122-24. The court began by noting that the employee’s state law claims obviously were inconsistent with the retirement agreement: the employee claimed he was discriminatorily forced into retirement, whereas the plan indicated that he had voluntarily retired. Thus, the court reasoned, the determination of whether the employer’s ERISA plan was valid became the “fulcrum” upon which the case turned. Id. at 123. Because “[s]ueh a determination could be made only with reference to ERISA and would affect the existing benefit plan and the relations between [the employee and the employer] as ‘principal ERISA entities,’ ” the Sixth Circuit concluded that the claims related to the plan and therefore were preempted. Id." }, { "docid": "22312360", "title": "", "text": "however, is that Congress may so completely pre-empt a particular area that any civil complaint raising this select group of claims is necessarily federal in character. (Emphasis added.) Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63-64, 107 S.Ct. 1542, 1546, 95 L.Ed.2d 55 (1987). The Supreme Court has not yet had an opportunity to explain further this “corollary” or to distinguish carefully between ordinary preemption and “complete preemption.” In Metropolitan Life, the Court did hold that the scope of the “complete preemption” exception for removal is narrow — it said that it is “reluctant to find that extraordinary pre-emptive power ... that converts an ordinary state common law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule.” Id. at 65, 107 S.Ct. at 1547. The Court ruled that the exception is narrowly limited in the ERISA context to state common law or statutory claims that fall within the ERISA civil enforcement provision of 29 U.S.C. § 1132(a)(1)(B) because “the legislative history consistently sets out this clear intention to make [§ 1132(a)(1)(B) ] suits brought by participants or beneficiaries federal questions for the purpose of federal court jurisdiction....” Id. at 66, 107 S.Ct. at 1547. Therefore, in order to come within the exception a court must conclude that the common law or statutory claim under state law should be characterized as a superseding ERISA action “to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan,” as provided in § 1132(a)(1)(B). v The Court specifically stated “ERISA pre-emption, without more, does not convert a state claim into an action arising under federal law.” Metropolitan Life, at 64, 107 S.Ct. at 1547. Section 1144 falls precisely into- this category. It allows ERISA to preempt state laws when they “relate to” matters governed by ERISA but does not create a federal cause of action for matters which only “relate to” ERISA’s field of concern. Thus, § 1144 preemption does not create" }, { "docid": "8644259", "title": "", "text": "preemption provision of ERISA, § 1144, which states that ERISA shall, with certain exceptions, “supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan.” Id. Defendant argued that removal based on the complete preemption corollary of the well-pleaded complaint rule was appropriate because plaintiffs claim necessarily called into question the validity of his retirement agreement, which was governed exclusively by ERISA. Id. We disagreed. Differentiating ERISA preemption under § 1144 from ERISA preemption under § 1132(a)(1)(B), which creates a federal cause of action for participants and beneficiaries in ERISA plans, we held that while the latter completely preempts state law, the former does not: Section 1144 ... allows ERISA to preempt state laws when they “relate to” matters governed by ERISA but does not create a federal cause of action for matters which only “relate to” ERISA’s field of concern. Thus, § 1144 preemption does not create a federal cause of action itself, and cannot convert a state cause of action into a federal cause of action under the well-pleaded complaint rule. As a consequence, no removal jurisdiction exists under § 1144. Id. at 534. Thus, Warner reasoned that the congressional intent necessary to confer removal jurisdiction upon the federal district courts through complete preemption is expressed through the creation of a parallel federal cause of action that would “convert” a state cause of action into the federal action for purposes of the well-pleaded complaint rule. Id. at 534-35. This analysis controls the case sub judice. Defendants argue that § 360k(a) of the MDA preempts plaintiffs’ negligent manufacture claim. However, like its ERISA counterpart § 1144, § 360k(a) expressly preempts certain state requirements, but does not create a parallel federal cause of action. Accordingly, § 360k(a) preemption cannot convert a state cause of action into a federal question under the well-pleaded complaint rule, and removal was thus improper. See Warner, 46 F.3d at 534. We are also unpersuaded by defendants’ argument that because the MDA both preempts state law and provides federal remedies, albeit not to plaintiffs, there is complete preemption." }, { "docid": "2058911", "title": "", "text": "of Machinists, 390 U.S. 557, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968) (LMRA); Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987) (ERISA). When this exception to the well-pleaded complaint rule— the “complete-preemption doctrine”—applies, a complaint, though on its face setting forth a claim under state law, is, for the purposes of removal, treated as a federal claim because federal law displaces any right of action under state law. Taylor, 481 U.S. at 65, 107 S.Ct. at 1547. In the instant case, therefore, the well-pleaded complaint rule did not preclude the district court from considering AT & T’s preemption defense as a basis for federal jurisdiction. B Section 514(a) of ERISA, 29 U.S.C. § 1144(a), provides that, ERISA “supersede[s] any and all State laws insofar as they may now or hereafter relate to any employee benefit plan....” Furthermore, under § 514(c)(1), 29 U.S.C. § 1144(c)(1), “State law” is defined as “all laws, decisions, rules, regulations, or other State action having the effect of law....” Subject to the caveat that some claims have “too tenuous, remote, or peripheral” an effect on benefit plans to fall within ERISA’s preemptive force, Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 100 n. 21, 103 S.Ct. 2890, 2901 n. 21, 77 L.Ed.2d 490 (1983), ERISA is “ ‘intended to apply in its broadest sense to all actions of State or local governments, or any instrumentality thereof, which have the force or effect of law.’ ” Id. at 99, 103 S.Ct. at 2901 (quoting 120 Cong.Rec. 29933 (1974)). Therefore, state-law claims, and state-court decisions resolving those claims, “insofar as they ... relate to any employee benefit plan,” are preempted by ERISA. Although Van Camp alleges that, in violation of Elliott-Larsen, AT & T forced him to retire, and, consequently, he lost certain benefits, his amended complaint does not set forth a claim for “failure to pay benefits,” nor does it otherwise seek to enforce a right expressly provided under ERISA. Such a finding, however, does not end the inquiry because, as explained in Ingersoll-Rand, 111 S.Ct. at 484," }, { "docid": "11038390", "title": "", "text": "to do so. Ziegler v. Champion Mortgage Co., 913 F.2d 228, 229 (5th Cir.1990). Under the well-pleaded complaint rule, a case does not “arise under” federal law and is not removable if the complaint asserts only state law causes of action. Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 10, 103 S.Ct. 2841, 2846-47, 77 L.Ed.2d 420 (1983). Nor will an anticipated federal defense, including a defense of preemption, support removal. Caterpillar Inc. v. Williams, 482 U.S. 386, 393, 107 S.Ct. 2425, 2430, 96 L.Ed.2d 318 (1987). Under the complete preemption doctrine, however, “Congress may so completely pre-empt a particular area that any civil complaint raising this select group of claims is necessarily federal in character.” Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63-64, 107 S.Ct. 1542, 1546, 95 L.Ed.2d 55 (1987). Consequently, a statute’s preemptive force may “convert[ ] an ordinary state common law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule.” Id. at 65, 107 S.Ct. at 1547. Smith Barney removed this case by invoking federal jurisdiction under the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. §§ 1109 (1982), 1132(a)(2)-(3) (1988), 1144(a) (1982); Taylor, 481 U.S. at 67, 107 S.Ct. at 1548. We must determine whether the action is preempted by ERISA and, if so, whether ERISA displaces the state law causes of action asserted. Kramer filed this action on his own behalf and on behalf of the Kramer Defined Benefit Pension Plan and the Kramer Money Purchase Pension Plan/Profit Sharing Plan. These plans, as “employee benefit plans” within the meaning of ERISA, are covered by ERISA. See 29 U.S.C. §§ 1002(2)(A), 1002(3), 1003 (1982). Section 514(a) states that “the provisions of [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). “[T]he preemption provision is ‘deliberately expansive’ and ‘designed to “establish pension plan regulation as exclusively a federal concern[.]” ’ ... [A] law relates to an ERISA plan ‘if it has a connection with or reference to" }, { "docid": "21796908", "title": "", "text": "issues that involve federal law. Gully v. First Nat’l Bank, 299 U.S. 109, 113, 57 S.Ct. 96, 81 L.Ed. 70 (1936). However, an exception exists to this rule. Where Congress so completely preempts a particular area of law, the lawsuit arising under state law becomes federal in character. Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63-64, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987). The Supreme Court has held that state common law claims for benefits under an employee benefit plan regulated by ERISA are preempted as long as the lawsuit relates to an employee benefit plan. See generally Metro. Life. However, only if the claim is “completely] preempted]” by ERISA, that is, when the action is to recover benefits, enforce rights or clarify future benefits under an ERISA plan, is the action subject to removal to the federal courts. Warner v. Ford Motor Co., 46 F.3d 531, 534 (6th Cir.1995). In making a determination whether the plaintiffs lawsuit was properly removed, we must decide whether, in her complaint, Wright seeks to enforce an ERISA agreement, or asserts rights to future benefits under the plan. “Removal and preemption are two distinct concepts.” Id. at 535. In addition, preemption and complete preemption are distinguishable concepts. Simply because a claim is preempted by ERISA does not mean it is automatically removable. According to Metropolitan Life, “ERISA pre-emption, without more, does not convert a state claim into an action arising under federal law.” Metro. Life, 481 U.S. at 64, 107 S.Ct. 1542. A state claim may be preempted by ERISA; however, it is not removable unless it is completely preempted by ERISA. There are two sections of ERISA at issue in this case: ERISA’s preemption provision, 29 U.S.C. § 1144; and ERISA’s civil enforcement provision, 29 U.S.C. § 1132(a)(1)(B). As this court stated in Warner, ERISA’s § 1144 preemption provision does not assure that claims preempted by ERISA are necessarily removable: [Section . 1144] allows ERISA to preempt state laws when they “relate to” matters governed by ERISA but does not create a federal cause of action for matters which only “relate" }, { "docid": "3745497", "title": "", "text": "within this Court’s jurisdiction. Plaintiffs claim does not relate to an ERISA plan and does not state a claim to which ERISA’s civil enforcement scheme extends. By the accompanying order, the Court shall sustain Plaintiffs Motion and remand this claim to state court. ORDER This matter is before the Court for consideration of Plaintiffs Motion to Remand. The Court having reviewed this matter, having set forth its findings in a Memorandum Opinion, and being otherwise sufficiently advised, IT IS HEREBY ORDERED that Plaintiffs Motion to Remand is SUSTAINED, and this case is REMANDED to Warren Circuit Court, Division I; and IT IS FURTHER ORDERED that Plaintiffs request for reimbursement of expenses pursuant to 28 U.S.C. § 1447 is OVERRULED. . \"While a claim of preemption under 29 U.S.C. § 1144 may be scrutinized to determine whether the relation to an ERISA plan is too remote or tenuous to warrant preemption,\" — that is, a state cause of action unrelated to an ERISA plan might escape pre-emption by §' 1144 — \"preemption under 29 U.S.C. § 1132 is not subject to any de minimis test.” (Def.’s Resp. at 7.) . Compare to the present case the drastic effect threatened by the plaintiff's age discrimination claim in Van Camp, supra. The plaintiff in that lawsuit had executed an irrevocable, ERISA-reg-ulated retirement agreement with his employer before being forced off the job. Id., 963 F.2d at 120. A favorable result for that plaintiff would have required the trial court to determine, as a threshold matter, the validity of the retirement agreement. Id. at 123. The effect of that agreement was so essential to the lawsuit that the Sixth Circuit described it as \"the fulcrum on which resolution of this dispute turns.\" Id. The claim Plaintiff brings in this lawsuit bears virtually no resemblance to the one discussed by Van Camp; indeed, the validity or effect of the ERISA agreement between Plaintiff and Defendant is not even an issue in this case. . See Ethridge v. Harbor House Restaurant, 861 F.2d 1389 (9th Cir.1988) in which the court stated, “[N]o ERISA cause of action" }, { "docid": "8644258", "title": "", "text": "Currently, the Supreme Court has found only two federal statutes to have this broad preemptive scope: § 301 of the Labor Management Relations Act, Avco v. Aero Lodge No. 7S5, 390 U.S. 557, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968), and § 502(a)(1)(B) of the Employee Retirement Income and Security Act, Metropolitan Life, 481 U.S. 58, 107 S.Ct. 1542, 95 L.Ed.2d 55. We decline defendants’ invitation to add MDA § 360k(a) to this list and instead hold that count I of the complaint does not present a federal question under 28 U.S.C. § 1331 and was therefore not removable under 28 U.S.C. § 1441. This court’s recent en banc decision in Warner v. Ford Motor Co., 46 F.3d 531 (6th Cir.1995), guides our decision. In Warner we considered whether a state age discrimination claim was properly removed to federal court on the grounds that plaintiffs claim was preempted by the Employee Retirement Income and Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001. Id. at 533. The alleged basis of federal jurisdiction was the express preemption provision of ERISA, § 1144, which states that ERISA shall, with certain exceptions, “supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan.” Id. Defendant argued that removal based on the complete preemption corollary of the well-pleaded complaint rule was appropriate because plaintiffs claim necessarily called into question the validity of his retirement agreement, which was governed exclusively by ERISA. Id. We disagreed. Differentiating ERISA preemption under § 1144 from ERISA preemption under § 1132(a)(1)(B), which creates a federal cause of action for participants and beneficiaries in ERISA plans, we held that while the latter completely preempts state law, the former does not: Section 1144 ... allows ERISA to preempt state laws when they “relate to” matters governed by ERISA but does not create a federal cause of action for matters which only “relate to” ERISA’s field of concern. Thus, § 1144 preemption does not create a federal cause of action itself, and cannot convert a state cause of action into a federal cause of" }, { "docid": "22312364", "title": "", "text": "plaintiff would be master of nothing. Congress has long since decided that federal defenses do not provide a basis for removal. 482 U.S. at 398-99, 107 S.Ct. at 2433. See also Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 25, 103 S.Ct. 2841, 2854, 77 L.Ed.2d 420 (1983) (“Congress did not intend to pre-empt entirely every state cause of action relating to [ERISA] plans”). Removal is allowed in § 1132(a)(1)(B) type cases under Metropolitan Life because of the Court’s conclusion that Congress intended federal law to occupy the regulated field of pension contract enforcement. State claims for damages or injunctive relief to enforce a pension plan against an employer or trustee are subject to removal. State causes of action not covered by § 1132(a)(1)(B) may still be subject to a preemption claim under § 1144(a) (see note 2, supra) because the state law at issue may “relate to” a pension or employee benefit plan. But such actions are not subject to removal. Removal and preemption are two distinct concepts. “The fact that a defendant might ultimately prove that a plaintiffs claims are pre-empted” — for example under § 1144(a) — “does not establish that they are removable to federal court.” Caterpillar, 482 U.S. at 398, 107 S.Ct. at 2432. The federal preemption defense in such nonremovable cases would be decided in state court and would be subject to review on certiorari in the U.S. Supreme Court. Removal jurisdiction based on original federal jurisdiction under § 1441 is therefore not as broad as federal appellate jurisdiction which extends to federal defenses. See Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 4 L.Ed. 97 (1816); Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 6 L.Ed. 204 (1824). The Van Camp case, supra, on which the District Court relied in the instant ease, allowed removal in a § 1144(a) preemption case not covered by § 1132(a)(1)(B) and then dismissed plaintiffs discrimination claim. The Court in Van Camp did not keep complete preemption removal and ordinary preemption doctrine separate and distinct. It mistakenly allowed removal in" }, { "docid": "22312365", "title": "", "text": "a defendant might ultimately prove that a plaintiffs claims are pre-empted” — for example under § 1144(a) — “does not establish that they are removable to federal court.” Caterpillar, 482 U.S. at 398, 107 S.Ct. at 2432. The federal preemption defense in such nonremovable cases would be decided in state court and would be subject to review on certiorari in the U.S. Supreme Court. Removal jurisdiction based on original federal jurisdiction under § 1441 is therefore not as broad as federal appellate jurisdiction which extends to federal defenses. See Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 4 L.Ed. 97 (1816); Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 6 L.Ed. 204 (1824). The Van Camp case, supra, on which the District Court relied in the instant ease, allowed removal in a § 1144(a) preemption case not covered by § 1132(a)(1)(B) and then dismissed plaintiffs discrimination claim. The Court in Van Camp did not keep complete preemption removal and ordinary preemption doctrine separate and distinct. It mistakenly allowed removal in a case not covered by § 1132(a)(1)(B) and only arguably covered by § 1144(a). It said erroneously that plaintiffs state cause of action arises under federal law for purposes of removal but then dismissed it because federal law grants no superseding or related cause of action. Van Camp failed to distinguish for removal purposes between a section of a federal statute, § 1132(a)(1)(B), designed to occupy the regulatory field with respect to a particular subject and to create a superseding cause of action (namely, an action to enforce ERISA contracts by beneficiaries) and a statutory section creating ordinary preemption where conflicting state laws are arguably “superseded” without creating the right of removal, as is the ease with § 1144(a). Thus the Van Camp case must be overruled. Our decision here is in accord with the results reached in a similar case by the Second Circuit. Lupo v. Human Affairs Int’l, Inc., 28 F.3d 269 (2d Cir.1994) (even if state law claim preempted by ERISA, removal not authorized). Accordingly, the judgment of the District Court is" }, { "docid": "21796909", "title": "", "text": "ERISA agreement, or asserts rights to future benefits under the plan. “Removal and preemption are two distinct concepts.” Id. at 535. In addition, preemption and complete preemption are distinguishable concepts. Simply because a claim is preempted by ERISA does not mean it is automatically removable. According to Metropolitan Life, “ERISA pre-emption, without more, does not convert a state claim into an action arising under federal law.” Metro. Life, 481 U.S. at 64, 107 S.Ct. 1542. A state claim may be preempted by ERISA; however, it is not removable unless it is completely preempted by ERISA. There are two sections of ERISA at issue in this case: ERISA’s preemption provision, 29 U.S.C. § 1144; and ERISA’s civil enforcement provision, 29 U.S.C. § 1132(a)(1)(B). As this court stated in Warner, ERISA’s § 1144 preemption provision does not assure that claims preempted by ERISA are necessarily removable: [Section . 1144] allows ERISA to preempt state laws when they “relate to” matters governed by ERISA but does not create a federal cause of action for matters which only “relate to” ERISA’s field of concern. Thus, § 1144 preemption does not create a federal cause of action itself, and cannot convert a state cause of action into a federal cause of action under the well-pleaded complaint rule. As a consequence, no removal jurisdiction exists under § 1144. Warner, 46 F.3d at 534. Rather, a state law claim is removable to the federal courts only if it is “completely] preempted].” Id. at 535. Therefore, in order to come within the exception [to the well-pleaded complaint rule] a court must conclude that the common law or statutory claim under state law should be characterized as a superseding ERISA action “to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan,” as provided in § 1132(a)(1)(B). Id. at 534 (quoting 29 U.S.C. § 1132(a)(1)(B)). Wright insists that her 40-page complaint, while prolix, does not seek “to recover benefits due to h[er] under the" } ]

[ { "docid": "6514395", "title": "", "text": "claim on behalf of Equitable, when the debtor thereby would be required to pay for utilities it had received without charge following the date that its petition was filed. Thus, because Equitable Gas had a colorable claim for expenses and was the only creditor that would zealously pursue that claim, it has standing to bring a § 506(c) action. See In re Isaac Cohen Clothing Corp., 39 B.R. 199 (landlord was only creditor with reason to bring § 506(c) action). Appellee Equibank argues that even if Equitable Gas had standing, the fact that Equitable supplied gas did not benefit the secured creditors. Appellee relies on In re Flagstaff Food Service Corp., 762 F.2d 10 (2d Cir.1985), in which the court denied recovery for payment of payroll taxes. In that case, the court rejected the general assertion that payment of the taxes contributed to reorganization and increased the going concern value of the assets. Rather, the court required the debtor to “show that its funds were expended primarily for the benefit of the creditor and that the creditor directly benefited from the expenditure.” Id. at 12. In accepting appellee’s argument, the district court relied on Miners Savings Bank v. Joyce, 97 F.2d 973 (3d Cir.1938), which held that expenses necessary to preserve the property, but not operating expenses of a business, are recoverable. In contrast, in In re Afco Enterprises, Inc., 35 B.R. 512 (Bankr.D.Utah 1983), the court adopted a much broader formula for determining benefit. The court stated that: “The definition of benefit encompasses more than the bottom line of a balance sheet. Preservation of the going concern value of a business can constitute a benefit to the secured creditor.” Id. at 515. See also In re World of English, N.V., 21 B.R. 524, 527-28 (N.D.Ga.1982) (applying liberal interpretation in holding that keeping debt- or in business constituted preservation of property). We choose to follow the broad interpretation of benefit used in Afeo Enterprises. As the bankruptcy court recognized, preserving McKeesport Steel Castings as a going concern benefited Equi-bank. The bankruptcy court found that “Equibank three times agreed to the" } ]

[ { "docid": "13803792", "title": "", "text": "all the findings necessary to order the payment of Mr. Lifton’s salary and benefits from March 28, 1993 through April 16, 1993. Generally, expenses for the administration of a bankruptcy may not be charged against a secured creditor’s collateral. In re F/S Airlease II, Inc., 59 B.R. 769, 778 (Bankr.W.D.Pa.1986), rev’d on other grounds, 844 F.2d 99 (3d Cir.1988), cert. denied, 488 U.S. 852, 109 S.Ct. 137, 102 L.Ed.2d 110 (1988). A statutorily-created exception to this policy is contained in 11 U.S.C. § 506(c) which provides: The trustee may recover from property securing an allowed secured claim the reasonable, necessary costs and expenses of preserving, or disposing of, such property to the extent of any benefit to the holder of such claim. As pointed out recently by the Third Circuit in In re C.S. Associates, 29 F.3d 903, 906 (3d Cir.1994): Our decisions have clarified that to recover expenses under § 506(c), a claimant must demonstrate that (1) the expenditures are reasonable and necessary to the preservation or disposal of the property and (2) the expenditures provide a direct benefit to the secured creditors. Our Third Circuit Court of Appeals, in In re McKeesport Steel Castings, 799 F.2d 91 (3d Cir.1986), held that preservation of the going concern value of a business can constitute a benefit to the secured creditor. The Court, in its opinion, quoted with approval from In re AFCO Enterprises, Inc., 35 B.R. 512, 515 (Bankr.Utah 1983), that “[t]he definition of benefit encompasses more than the bottom line of a balance sheet.” In re McKeesport Steel, 799 F.2d at 94. This Court’s attention has not been called to anything in this record showing that the Bankruptcy Court’s findings of fact were “clearly erroneous.” As heretofore pointed out, the Bankruptcy Court found that payment of Mr. Lifton’s salary and benefits from March 28,1993 through April 16,1993 (which totalled $4,631.07 net of withholding) was reasonable, necessary, and conferred a benefit to FirstMiss. Although FirstMiss argues that it received no benefit because the debt- or’s collateral dropped in value by $225,-900.00, the Bankruptcy Court found that the secured creditor had" }, { "docid": "15492982", "title": "", "text": "on the party seeking recovery. See In re Flagstaff Foodservice Corp., 739 F.2d 73, 77 (2d Cir.1984) (“Flagstaff I’’); Brookfield Production Credit Ass’n v. Borron, 738 F.2d 951, 952 (8th Cir.1984). 1. Standing First Federal argues that NOPSI lacks standing to invoke § 506(c) as that section provides that “the trustee” may recover from the collateral. Despite the seemingly unambiguous language, courts have allowed a claimant to use § 506(c) if the trustee or debtor-in-possession refuses to pursue a claim of administrative expenses. See, e.g., In re McKeesport Steel Castings Co., 799 F.2d 91, 94 (3d Cir.1986); In re International Club Enterprises, Inc., 105 B.R. 190, 193 (Bkrtcy.D.R.I.1989); In re World Wines, Ltd., 77 B.R. 653, 658 n. 4 (Bkrtcy.N.D.Ill.1987); see also 3 Collier on Bankruptcy, 11 506.06, at 506-58 n. 7a (15th ed. 1990) (asserting that the better position is to allow a claimant to recover the costs for its services under § 506(c)). Contra In re Ramaker, 117 B.R. 959, 967 (Bkrtcy.N.D.Iowa 1990); In re Interstate Motor Freight System IMFS, Inc., 71 B.R. 741, 745 (Bkrtcy.W.D.Mich.1987). “A contrary position may result in a windfall benefit to the secured creditor to the detriment of a third party.” In re So Good South Potato Chip Co., 116 B.R. 144, 146 (Bkrtcy.E.D.Mo.1990). This Court agrees with the position that the advantages of § 506(c) are not limited to trustees. Thus, NOPSI has standing to use § 506(c), considering that the bankruptcy court noted the debtor-in-possession’s refusal to seek recovery of NOPSI’s utility fees. 2. Direct Benefit First Federal has stipulated that the utility expenses were necessary and reasonable. The only relevant issue, then, is the last element of the test regarding a benefit to the creditor. Courts have construed the benefit element as requiring that the claimant incur the expenses primarily for the benefit of the secured creditor and that the expenses resulted in a quantifiable direct benefit to the secured creditor. In re Cascade Hydraulics & Utility Service, Inc., 815 F.2d 546, 548 (9th Cir.1987); Brookfield Production, 738 F.2d at 952; In re Beker Industries Corp., 89 B.R. 336, 342" }, { "docid": "18754854", "title": "", "text": "has interpreted section 506(c) less restrictively than the Second Circuit. However, even under the more liberal Third Circuit analysis, debtor’s counsel cannot prevail. In McKeesport, the Court of Appeals cited favorably to the interpretation of § 506(c) set out in In re AFCO Enterprises, Inc., 35 B.R. 512 (Bankr.D.Utah 1938). That court noted that the statute itself states three requirements for recovery: First, the costs and expenses must have been reasonable and necessary; second, the costs and expenses must have been incurred for the purposes of preserving or disposing of the secured property; and third, any recovery for costs and expenses is limited to the extent of the benefit of the holder of the secured claim. Id. at 514. Of these three elements, the existence of a benefit to the lienholder is the most important, the “linchpin in an award under § 506(c).” Id. at 515. The burden of proving entitlement to recover under section 506(c) rests upon the entity seeking recovery. See Flagstaff I, 739 F.2d at 77; In re Fazio, 57 B.R. at 317; In re Baum’s Bologna, Inc., 50 B.R. at 691. In the instant case, debtor’s counsel had the burden of showing that the Bank received a benefit from his services— that is, that the Bank recovered more than it would have but for those services, or that counsel somehow eliminated expenses that the creditor would otherwise have had to bear. See 3 Collier ¶ 506.06, at 506-55. McKeesport may be read to disagree with Flagstaff I and In re Flagstaff Foodservice Corp., 762 F.2d 10 (2d Cir.1985) (“Flagstaff II”), to the extent that, in this Circuit, one need not show that the “funds were expended primarily for the benefit of the creditor.” Flagstaff II, 762 F.2d at 12. But the obligation to show a direct benefit to the creditor still remains. McKeesport, 799 F.2d at 94-95. Here, the debtor’s counsel makes no such showing. No evidence was presented which demonstrated that the Bank benefited from counsel’s services. Unlike McKeesport, there has been no liquidation at going concern value in this case and thus no apparent" }, { "docid": "16171641", "title": "", "text": "surcharge covers the following services: (1) sales procedures and approvals required by the cash-collateral stipulation; (2) evaluation and removal of mechanics’ liens; (3) title, sales, escrow, closing costs, and evaluation efforts; (4) costs associated with the surcharge motion; and (5) construction, operation, and marketing costs. “We allow payment of administrative expenses from the proceeds of secured collateral when incurred primarily for the benefit of the secured creditor or when the secured creditor caused or consented to the expense.” In re Cascade Hydraulics & Utility Serv., Inc., 815 F.2d 546, 548 (9th Cir.1987). The controlling provision of the Bankruptcy Code is 11 U.S.C. § 506(c) which provides: The trustee may recover from property securing an allowed secured claim the reasonable, necessary costs and expenses of preserving, or disposing of, such property to the extent of any benefit to the holder of such claim. Under § 506(c), therefore, Compton must demonstrate that the expenses it seeks to surcharge against the Banks were reasonable, necessary, and beneficial to the Banks’ recovery, or that the Banks caused or consented to those expenses. See Cascade Hydraulics, 815 F.2d at 548. A. Necessity and Reasonableness We measure the necessity and reasonableness of the Debtor’s incurred expenses against the benefits obtained for the secured creditor and the amount that the secured creditor would have necessarily incurred through foreclosure and disposal of the property. See In re Chicago Lutheran Hosp. Ass’n, 89 B.R. 719, 727 (Bankr.N.D.Ill.1988). The threshold inquiry is whether the services for which a surcharge is sought were necessary to the secured creditor, here the Banks. We conclude they were not. Had the Banks foreclosed at the outset of the Chapter 11 proceedings, all junior liens, including mechanics liens, would have been eliminated or paid after the Banks’ loan was satisfied. Moreover, the Banks could have internalized many of the post-petition costs incurred by the Debtor and its professionals simply by using in-house resources. In any event, many of the costs were incurred pursuant to the cash-collateral stipulations, and none of those costs would have been incurred had the Banks initially foreclosed on the property. To" }, { "docid": "4604531", "title": "", "text": "F.2d 544, 547 (9th Cir.1958). In this cáse American did agree with the trustee to complete the construction of the building, and to advance some $2,000,000 toward this construction. However, this agreement does not fall within the scope of this exception. Mere cooperation with the debtor does not make a secured creditor liable for expenses of administration. Cascade Hydraulics, supra, at 548; Flagstaff I, 739 F.2d at 77. Unless American specifically consented to the priority treatment of these expenses, it did not give the consent required for this exception. In re Sherrill, 78 B.R. 804, 809 (Bankr.W.D.Tex.1987). The parties agree that American has not agreed to the trustee’s priming of its security interest. Section 506(c) permits a surcharge against collateral even where the value of the collateral has declined through use or market fluctuations. 4 Collier on Bankruptcy 11552.02 (15th ed. 1988), at 552-9. Chapter 11 is not designed to permit a debtor or the trustee to gamble a secured creditor’s money on a successful reorganization. Any such gamble should be made only with funds belonging to unsecured creditors and the shareholders, and normally only with their consent. American has raised the issue of what should be the nature of a surcharge award ed by the Court—a judgment for cash against American, or a lien against the property. The parties have stipulated that the surcharge should be treated as a lien against the property. C. Benefit to American There must be a benefit to the secured creditor before the trustee is entitled to a surcharge under section 506(c). If the trustee has spent money, but has not conferred any benefit on the creditor, no surcharge is permitted. In re AFCO Enterprises, 35 B.R. 512, 515 (Bankr.D.Utah 1983). The benefit test establishes a ceiling on the recovery of the trustee: The trustee may recover only to the extent of the benefit conferred on American. The actual surcharge is further limited to those expenses that were reasonable and necessary to obtain this benefit. It is noteworthy that section 506(c) does not usually permit the trustee to recover the entire benefit conferred on" }, { "docid": "10560067", "title": "", "text": "of Trim-X, Inc., 695 F.2d 296, 299 (7th Cir.1982). Traditionally administrative expenses have not been charged against secured creditors. The reason for that rule is that a trustee in bankruptcy acts not on the authority of [secured creditors] and for their interest, but on the authority of the court and for the interest of the general creditors. An exception to that general rule has been recognized, however, when expenses of preservation are incurred primarily for the benefit of the secured creditor ... Id. at 301. (citations omitted) The rationale for this rule applies with equal force to debtors-in-possession as it does to trustees. 27.That portion of the “Costs to Reorganize” relating to professional fees cannot be deducted from the value of Wells Fargo’s collateral. As a general rule, expenses of administration must be satisfied from assets of the estate not subject to liens. Should [Debtor’s] estate have no unencumbered funds, that fact would not obligate [Wells Fargo] as secured creditor to finance a Chapter 11 proceeding except to the limited extent provided by 11 U.S.C. § 506(c) ... In re EES Lambert Associates, 62 B.R. 328, 338 (Bankr.N.D.Ill.1986) (citations omitted). This Court, in EES Lambert, cited with approval the following language from In re American Resources Management Corp., 51 B.R. 713, 719 (Bankr.D. Utah 1985): Post-petition attorneys’ and accountants’ fees are administrative expenses and may not be given priority over existing liens and superpriority claims_ Unless there is equity in the collateral, administrative claimants cannot look to a creditor’s encumbered property to provide a source of payment for their claims. (Emphasis added). Here, since Wells Fargo’s lien encumbers all assets of the Debtors' estate, “Costs to Reorganize” cannot be satisfied from, or deducted from, the value of Wells Fargo’s collateral. 28. The pre-petition priority tax claims of $1,536,000 did not directly benefit Wells Fargo, were not incurred to preserve Wells Fargo’s collateral, and did not actually benefit Wells Fargo. “Pre-petition expenses are generally not recoverable under § 506(c).” 3 Collier on Bankruptcy, ¶ 506.06, pp. 506-59 (15th Ed. 1989). In re Flagstaff Foodservice Corp., 762 F.2d 10, 13 (2nd Cir.1985)" }, { "docid": "10176074", "title": "", "text": "rehabilitation as a going business concern. These services were not undertaken for the purpose of benefiting the Bank. Any benefit to the Bank as a result of these services was indirect and secondary, at best, to the purpose for which they were undertaken. In this regard, we also note that the recovery of fees and expenses arising from an unsuccessful Chapter 11 reorganization will generally not be allowed under § 506(c). See, for example, In re Flagstaff Foodservice Corp., supra, at 739 F.2d 76: “Such benefits as might be said to have accrued to GECC [the secured creditor] from the attempt to reorganize were incidental to the reorganization efforts and did not fall within the intended scope of section 506(c).” Also, see 3 Collier on Bankruptcy Paragraph 506.06, at 506-55 (15th ed. 1985) and In re Korupp Associates, Inc., 30 B.R. 659, 663 (Bankr.D.Maine 1983): “Services rendered in the turnover proceeding to regain possession of the seized property were for the benefit of the debtor, for without a successful resolution of that action, the debtor would have been left without any business to reorganize.” We conclude that the foregoing considerations are sufficient to deny recovery to the debtor’s attorney under § 506(c). Additionally, however, the debtor’s attorney has failed to satisfy its burden of proof that its services resulted in a quantifiable benefit to the Bank. With regard to the livestock sellers’ litigation, the debtor’s attorney concedes that the sellers’ claims were only potential and disputed secured claims. Therefore, the debtor’s attorney cannot quantify how much, if any, the Bank benefited by the settlement of these claims. With regard to the debtor’s attorney’s efforts to collect the account receivable, the debtor’s attorney simply provided no evidence to show how much, if any, benefit the Bank received from these efforts nor did it prove that the Bank would have received less absent its efforts. See In re Modern Mix, Inc., 18 B.R. 746 (Bankr.S.D.Ala.1982), where a Chapter 7 trustee was denied recovery under § 506(c) for his unsolicited services in collecting a debtor’s accounts receivable. Finally, the debtor’s attorney does not" }, { "docid": "10560068", "title": "", "text": "§ 506(c) ... In re EES Lambert Associates, 62 B.R. 328, 338 (Bankr.N.D.Ill.1986) (citations omitted). This Court, in EES Lambert, cited with approval the following language from In re American Resources Management Corp., 51 B.R. 713, 719 (Bankr.D. Utah 1985): Post-petition attorneys’ and accountants’ fees are administrative expenses and may not be given priority over existing liens and superpriority claims_ Unless there is equity in the collateral, administrative claimants cannot look to a creditor’s encumbered property to provide a source of payment for their claims. (Emphasis added). Here, since Wells Fargo’s lien encumbers all assets of the Debtors' estate, “Costs to Reorganize” cannot be satisfied from, or deducted from, the value of Wells Fargo’s collateral. 28. The pre-petition priority tax claims of $1,536,000 did not directly benefit Wells Fargo, were not incurred to preserve Wells Fargo’s collateral, and did not actually benefit Wells Fargo. “Pre-petition expenses are generally not recoverable under § 506(c).” 3 Collier on Bankruptcy, ¶ 506.06, pp. 506-59 (15th Ed. 1989). In re Flagstaff Foodservice Corp., 762 F.2d 10, 13 (2nd Cir.1985) held that post-petition tax claims were not allowable under § 506(c). The $1,536,000 of pre-petition, unsecured, disputed tax claims cannot be allowed under 11 U.S.C. § 506(c), nor can they be deducted from the value of the estate prior to arriving at the value of Wells Fargo’s secured claim. 29. The evidence did not establish that the $560,000 of professional fees directly benefited Wells Fargo, or were incurred to preserve Wells Fargo’s collateral. Only a small portion thereof attributable to work on liquidating the Sheraton claim for benefit of Wells Fargo has thus far been found without objection to qualify under § 506(c). 30. If Debtors’ theory of deducting every dollar of professional fees from a secured creditor’s collateral valuation were adopted by this Court, debtor’s attorneys generally would be given incentive to engage in costly, time-consuming litigation, in hopes that eventually their legal bills would equal or exceed the value of the secured creditor’s collateral, thereby enabling debtors to pay zero to the secured creditor. Generally, attorneys’ fees in a Chapter 11 case, even" }, { "docid": "12434566", "title": "", "text": "S.Ct. at 631, that statement must be understood in the factual context of the Timbers case, which concerned the value to the creditor of being able to foreclose immediately. The Court explicitly distinguished the question of a change in the value of the collateral itself. See id. at 370, 108 S.Ct. at 630. American bankruptcy-law has long recognized the distinction between interest on a claim and appreciation of the collateral and has not applied the “no post-petition interest” rule to the return on interest-bearing collateral. See 3 L. King, Collier on Bankruptcy ¶ 502.02, at 502-36 (15th ed. 1991) (citing Sexton v. Dreyfus, 219 U.S. 339, 346, 31 S.Ct. 256, 258, 55 L.Ed. 244 (1911)). The bankruptcy court did not err. D. Attorney Fees The bankruptcy court allowed Jenson’s application for interim attorney fees in the amount of $27,525, but it refused to surcharge the FDIC for those fees pursuant to 11 U.S.C. § 506(c). Section 506(c) provides: The trustee may recover from property securing an allowed secured claim the reasonable, necessary costs and expenses of preserving, or disposing of, such property to the extent of any benefit to the holder of such claim. 11 U.S.C. § 506(c). Section 506(c) typically comes into play where the trustee stores or maintains the collateral pending liquidation or where a creditor’s loan is secured by the debtor’s inventory or equipment and the debtor-in-possession continues to operate its business during Chapter 11 proceedings. See, e.g., In re Flagstaff Foodservice Corp., 739 F.2d 73 (2d Cir.1984). See generally 3 Collier on Bankruptcy ¶ 506.06, at 506-56 to 506-59. In affirming the bankruptcy court, the district court relied on In re Cascade Hydraulics & Utility Service, Inc., 815 F.2d 546 (9th Cir.1987). Cascade interpreted section 506(c) narrowly to require that the trustee or debtor-in-possession “establish, in quantifiable terms that it expended funds directly to protect or preserve the collateral.” Cascade, 815 F.2d at 548. Recovery is limited “to the extent that the secured creditor benefited from the services.” Id. (emphasis added). Section 506(c) was not intended as a substitute for recovery of normal administrative expenses from" }, { "docid": "17885842", "title": "", "text": "approved the arrangement that caused the administrative expense claim to accrue. In this case, there was no such involvement or approval. 116 B.R. at 173. In McKeesport the claim accrued during the continuation after bankruptcy of a pre-existing business relationship with the debtor. In this case, the claimant had no connection with the debtor prior to entering into the operating agreement, and “by entering into the agreement, embarked voluntarily on a new venture which it knew could result in either gain or loss.” Id. GECC makes a similar point, arguing North County undertook to operate the dealership in order to acquire the business at a “bargain basement price.” These distinctions are not persuasive. Prior court approval may make a claim for administrative expenses more palatable, but it is nowhere required in the Code. Both the prior relationship between the debtor and the claimant and the motivation of the claimant seem irrelevant. Presumably all persons who provide services to Chapter 11 debtors do so for profit. The Code does not require that the claimant have the best interests of the secured creditors in mind, but only that the expenditures be “reasonable, necessary costs and expenses of preserving, or disposing of, such [secured] property.” 11 U.S.C. § 506(c). Like the trustee in McKeesport, the trustee here had no economic incentive to seek recovery under § 506(c), since the recovery would pass to the claimant with no gain to the estate. As in McKeesport, if only the trustee were allowed standing, the result would be a windfall for the secured creditor at the expense of the unpaid claimant. 3 Collier on Bankruptcy, ¶ 506.06, at 506-57 to 506-58 n. 7a (15th ed. 1990). No compelling policies are served by a restrictive reading of § 506(c) in the circumstances of this case. GECC argues that restricting standing to the trustee enables the trustee to maintain control of the liquidation of an estate, citing In re Dakota Lay’d Eggs, 68 B.R. 975, 978 (Bankr.D.N.D.1987), but this case involves a reorganization under Chapter 11, not a liquidation. GECC cites In re Interstate Motor Freight System IMFS," }, { "docid": "17885843", "title": "", "text": "best interests of the secured creditors in mind, but only that the expenditures be “reasonable, necessary costs and expenses of preserving, or disposing of, such [secured] property.” 11 U.S.C. § 506(c). Like the trustee in McKeesport, the trustee here had no economic incentive to seek recovery under § 506(c), since the recovery would pass to the claimant with no gain to the estate. As in McKeesport, if only the trustee were allowed standing, the result would be a windfall for the secured creditor at the expense of the unpaid claimant. 3 Collier on Bankruptcy, ¶ 506.06, at 506-57 to 506-58 n. 7a (15th ed. 1990). No compelling policies are served by a restrictive reading of § 506(c) in the circumstances of this case. GECC argues that restricting standing to the trustee enables the trustee to maintain control of the liquidation of an estate, citing In re Dakota Lay’d Eggs, 68 B.R. 975, 978 (Bankr.D.N.D.1987), but this case involves a reorganization under Chapter 11, not a liquidation. GECC cites In re Interstate Motor Freight System IMFS, Inc., 71 B.R. 741, 744 (Bankr.W.D.Mich.1987), in support of the contention that a narrow reading preserves Section 726’s policy favoring parity of payment to all claimants in a class. Again, this policy is not applicable in the Chapter 11 context. We agree with the Third Circuit that standing need not be limited to trustees and debtors in possession. We do not decide whether a third party claimant should have standing only in those cases in which the trustee or debtor in possession has refused the third party s request to recover the property. REVERSED and REMANDED. . The new car inventory and assets of the dealership were subject to security interests in favor of General Motor Acceptance Corp. (GMAC) and Chrysler Credit Corp. (CCC). General Electric Capital Corp. (GECC), holds a blanket security interest in all Palomar assets, subject only to the superior claims of GMAC and CCC. . North County argued, alternatively, the court should order payment of the operating loss under its equitable powers to subordinate claims under § 510(c), citing In re" }, { "docid": "10560070", "title": "", "text": "a successful case, are not chargeable to a secured creditor if they are incidental to the reorganization, in the absence of showing a “clear and direct” benefit under § 506(c). See 3 Collier on Bankruptcy, ¶ 506.06, pp. 506-62, 64 (15th Ed.1989). See also In re Chicago Lutheran Hospital Ass’n, 89 B.R. 719 (Bankr.N.D.Ill.1988). 31. The cases cited by Debtor are easily distinguishable, because in each the secured creditor impliedly consented to the claims that were ultimately allowed under § 506(c), or the expenses met § 506(c) crite ria. In re McKeesport Steel Castings Co., 799 F.2d 91 (3rd Cir.1986) involved the sale of the debtors as a going concern where the secured creditor consented to (1) its cash collateral being used to pay utility bills and (2) an order granting the utility a super-priority claims. In McKeesport, but for the service supplied by the utility, there would be no going concern to sell; thus, the utility bills were properly allowed, and paid from the proceeds of the sale. In re AFCO Enterprises, Inc., 35 B.R. 512 (Bankr.D.Utah 1983), a trustee was appointed on the secured creditor’s request. The trustee then sought reimbursement. The court found that the secured creditor was the only party that benefited from the services rendered by the trustee. Neither McKeesport nor AFCO involved a Chapter 11 confirmation hearing on a plan of reorganization. Neither McKeesport nor AFCO involved a case, like this one, where debtors contended after two years of reorganization effort that the going concern value of the enterprise was roughly equal to the forced liquidation value of the enterprise as of the petition date. 32. The Debtors’ attempt to distinguish Chicago Lutheran Hospital, 89 B.R. 719 is flawed. Their argument is that Lutheran Hospital did not involve “a successful reorganization.” Of course, this case is also not a successful reorganization. The issue in Lutheran Hospital was similar to the issue here, and that decision is instructive here. 33. The cases cited by Debtors under 11 U.S.C. § 506(c) are not on point here. The evidence did not establish that any of the “Costs" }, { "docid": "10560071", "title": "", "text": "B.R. 512 (Bankr.D.Utah 1983), a trustee was appointed on the secured creditor’s request. The trustee then sought reimbursement. The court found that the secured creditor was the only party that benefited from the services rendered by the trustee. Neither McKeesport nor AFCO involved a Chapter 11 confirmation hearing on a plan of reorganization. Neither McKeesport nor AFCO involved a case, like this one, where debtors contended after two years of reorganization effort that the going concern value of the enterprise was roughly equal to the forced liquidation value of the enterprise as of the petition date. 32. The Debtors’ attempt to distinguish Chicago Lutheran Hospital, 89 B.R. 719 is flawed. Their argument is that Lutheran Hospital did not involve “a successful reorganization.” Of course, this case is also not a successful reorganization. The issue in Lutheran Hospital was similar to the issue here, and that decision is instructive here. 33. The cases cited by Debtors under 11 U.S.C. § 506(c) are not on point here. The evidence did not establish that any of the “Costs to Reorganize” are allowable under § 506(c). Nor did the evidence establish that the disputed pre-petition unsecured tax claims and the unallowed professional fees were reasonable, necessary and quantitatively benefited Wells Fargo. Indeed, we find no authority holding that pre-petition unsecured tax claims are allowable under § 506(c). Cases cited by Debtors involving utilities and consensual disposition of a secured creditor’s collateral are not on point. Finally, not a single case reported under 11 U.S.C. § 1129 adopts the Debtors’ argument that, when valuing a secured creditor’s collateral on a going concern basis for plan confirmation purposes, pre-petition tax claims and attorneys’ fees should be deducted prior to determining the going concern value of a creditor’s secured claim. 34. This Court concludes that none of the asserted “Costs to Reorganize” are properly deductible from the value of the estate prior to determining Wells Fargo’s allowed secured claim. Therefore, the Pullman Plan understates Wells Fargo’s allowed secured claim by $2,273,000. The Plan Cannot Be Crammed Down Because it Fails to Pay Wells Fargo the Going Concern" }, { "docid": "4476426", "title": "", "text": "the FDIC’s cash collateral resulting in the enhancement and preservation of the Marina’s ultimate sales value; and (ii) the representation of the debtor in the Allocation Litigation resulting in an increase in the Marina’s sales value due to the reallocation and reduction of the Marina’s portion of the overall Half Moon Bay annual operating expenses from 53% to 14.25%. Kaye, Scholer’s negotiation of the cash collateral stipulation with the FDIC resulted in the maintenance of the Marina as a going concern. The FDIC’s only possible rationale for consenting to such an arrangement would be its belief that the Marina would be more valuable as a going concern than as a nonperforming asset. As the Court of Appeals for the Eighth Circuit has written, “the ambition of [a] creditor to preserve and improve its secured collateral and the opportunity to realize that ambition” is indeed a “benefit” which will support the award of § 506(c) expenses. United States v. Boatmen’s First Natl. Bank, 5 F.3d 1157, 1159 (8th Cir.1993); see also Equitable Gas Co. v. Equibank N.A (In re McKeesport Steel Castings Co.), 799 F.2d 91, 94 (3rd Cir.1986) (“ ‘The definition of benefit encompasses more than the bottom line of a balance sheet. Preservation of the going concern value of a business can constitute a benefit to the secured creditor.’” (quoting In re Afco Enters., 35 B.R. 512, 515 (Bankr.D.Utah 1983))). Further, by consenting to the cash collateral stipulation, the FDIC impliedly consented to the payment of legal fees associated with the order. Although a secured creditor’s consent to bearing the cost of professional services of the debtor is neither to be lightly inferred nor inferred merely due to the secured creditor’s cooperation with the debtor’s bankruptcy case, Flagstaff I, 739 F.2d at 77, in the instant case, such an inference is appropriate. In Flagstaff I, it was held that a secured creditor who had obtained a superpriority interest in all the debtor’s property, in exchange for entering into a cash collateral financing agreement, did not consent to paying for the professional services related to the financing agreement. Flagstaff I," }, { "docid": "10273799", "title": "", "text": "the secured party. Id. at 76. Thus, there, no compensation was allowed to the debtor’s professionals at all. The reasoning in Fazio and Baum follows that of Flagstaff. Judge Goldhaber utilizes the self-same phraseology of Flagstaff in concluding that it would require “strained logic” to conclude that a secured party benefited, in the § 506(c) sense, from services performed in general administration of the bankruptcy. 57 B.R. at 317. In Baum, Judge Twardowski declines all compensation to the debtor’s attorney, even while acknowledging “indirect benefit” to the secured creditor for services “undertaken to improve the position of the debtor in possession.” 50 B.R. at 690. At the opposite end of the spectrum is Judge King’s pre-Flagstaff opinion in Hotel Associates. There, Judge King builds upon the secured creditor’s motion for appointment of a trustee to conclude that the secured creditor gave implied consent to the trustee appointed to perform a full range of services for the debtor’s estate. Thus, he awards the trustee full compensation sought for all services rendered. In Birdsboro, Judge Fox does not cite to Hotel Associates, but does conclude that, in McKeesport, “the Third Circuit has interpreted section 506(c) less restrictively than the Second Circuit [in Flagstaff ].” 69 B.R. at 958. Indeed, in McKeesport, the Court expressly stated an intention to adopt the “much broader” test set forth in In re Afco Enterprises, Inc., 35 B.R. 512 (Bankr.D. Utah 1983), in interpreting § 506(c), as opposed to the narrower test articulated in Flagstaff and the Third Circuit itself in the Act case of Miners Savings Bank v. Joyce, supra, 799 F.2d at 94. The test articulated in McKeesport relied more upon whether the secured party gained actual benefit from the efforts of the party seeking to invoke § 506(c), not whether this benefit was direct or indirect, whether it benefited others or not, or whether it was intended to or did benefit others as well. However, in Birdsboro, Judge Fox concluded that the debtor’s counsel had not met his burden of establishing any direct benefit to the creditor, and hence no compensation was awarded. In" }, { "docid": "18728906", "title": "", "text": "to the holder of such claim.” 11 U.S.C. § 506(c) (1982). In adopting the district court’s opinion as its own, the court holds that the Borrons may not recover the reasonable and necessary expenses incurred in preserving the collateral because these expenditures did not benefit the creditor. Because I believe that the funds expended by the Borrons benefited the creditor, I dissent. Section 506(c) of the Bankruptcy Reform Act expresses the equitable principle that a “lienholder may be charged with the reasonable costs and expenses incurred by the debtor, debtor in possession or trustee which are required to preserve or dispose of the property subject to the lien to the extent the lienholder derives a benefit therefrom.” 3 L. King Collier on Bankruptcy ¶ 506.6, at 506-43 (15th Ed.1984). See also In the Matter of Trim-X, Inc., 695 F.2d 296, 301 (7th Cir.1982); In re Korupp Associates, Inc., 30 B.R. 659, 661 (Bkrtcy.D. Me.1983). As the court points out in In re Codesco, Inc., 18 B.R. 225 (Bkrtcy.S.D.N.Y.1982), the rationale underlying this principle is that “the general estate and unsecured creditors should not be required to bear the cost of protecting what is not theirs.” Id. at 230. See also In re AFCO Enterprises, Inc., 35 B.R. 512, 515 (Bkrtcy.D.Utah 1983) (when only secured creditor benefits from trustee’s work, he should bear expense). In enacting section 506(c), Congress determined that the trustee or debtor in possession should be allowed to recover reasonable expenses necessary to preserve and dispose of the secured creditor’s collateral “to the extent of any benefit to the holder of such [secured] claim.” S.Rep. No. 989, 95th Cong., 2d Sess. 68, H.R.Rep. No. 595, 95th Cong., 2d Sess. 357, reprinted in 1978 U.S.Code Cong. & Ad.News 5787, 5854, 6313. As the majority opinion correctly points out, courts that have considered section 506(e) have narrowly interpreted the concept of “benefit” to the secured creditor. To show benefit, the trustee or debtor in possession must demonstrate in quantifiable terms that he has expended funds “which directly protect and preserve the collateral.” In re Sonoma V., 24 B.R. 600, 603" }, { "docid": "15492981", "title": "", "text": "Missionary Baptist Foundation, Inc., 712 F.2d 206, 209 (5th Cir.1983) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 541, 92 L.Ed. 746 (1948)). Conclusions of law, conversely, are subject to plenary review on appeal. Id. A. Section 506(c) Generally, administrative expenses, such as the utility fees here, are satisfied out of the bankruptcy estate. In re Trim-X, Inc., 695 F.2d 296, 301 (7th Cir.1982). The Bankruptcy Code furnishes an exception to the general rule in § 506(c), which provides that a “trustee may recover from property securing an allowed secured claim the reasonable, necessary costs and expenses of preserving, or disposing of, such property to the extent of any benefit to the holder of such claim.” In order to charge a secured creditor with administrative expenses under § 506(c), three elements must be shown: (1) the expenditure was necessary, (2) the amounts expended were reasonable, and (3) the creditor benefitted from the expenses. In re Trim-X, Inc., 695 F.2d at 299. The burden of demonstrating these elements is on the party seeking recovery. See In re Flagstaff Foodservice Corp., 739 F.2d 73, 77 (2d Cir.1984) (“Flagstaff I’’); Brookfield Production Credit Ass’n v. Borron, 738 F.2d 951, 952 (8th Cir.1984). 1. Standing First Federal argues that NOPSI lacks standing to invoke § 506(c) as that section provides that “the trustee” may recover from the collateral. Despite the seemingly unambiguous language, courts have allowed a claimant to use § 506(c) if the trustee or debtor-in-possession refuses to pursue a claim of administrative expenses. See, e.g., In re McKeesport Steel Castings Co., 799 F.2d 91, 94 (3d Cir.1986); In re International Club Enterprises, Inc., 105 B.R. 190, 193 (Bkrtcy.D.R.I.1989); In re World Wines, Ltd., 77 B.R. 653, 658 n. 4 (Bkrtcy.N.D.Ill.1987); see also 3 Collier on Bankruptcy, 11 506.06, at 506-58 n. 7a (15th ed. 1990) (asserting that the better position is to allow a claimant to recover the costs for its services under § 506(c)). Contra In re Ramaker, 117 B.R. 959, 967 (Bkrtcy.N.D.Iowa 1990); In re Interstate Motor Freight System IMFS, Inc., 71 B.R." }, { "docid": "4476440", "title": "", "text": "limited to trustees); Equitable Gas Co. v. Equibank, N.A. (In re McKeesport Steel Castings Co.), 799 F.2d 91, 93-94 (3rd Cir.1986) (noting issue and giving broad interpretation of § 506(e) when trustee has no incentive to act). But see e.g., Central States v. Robbins (In re Interstate Motor Freight Sys. IMFS, Inc.), 71 B.R. 741, 743-44 (Bankr.W.D.Mich.1987) (citing cases on both sides of issue but giving strict construction of § 506(c)). After reviewing the relevant case-law, this Court finds the logic of the cases applying an expansive construction to the standing issue of § 506(c) to be more persuasive than those applying a restrictive reading. This Court adopts the reasoning as enunciated by Collier’s treatise to wit: [A] secured creditor who received a direct benefit from the rendition of services or provision of goods by an administrative claimant of the estate should have the collateral charged for such benefit, regardless of whether the proceeds of such charge are paid to the debtor, debtor in possession or trustee as reimbursement for its prior payment to the claimant or are paid to the claimant directly. Otherwise, if the debt- or, debtor in possession or trustee does not have available funds to pay the claimant, the debtor, debtor in possession or trustee has no economic incentive to seek a recovery under 11 U.S.C. § 506(e) of amounts which will be paid over to the claimant and, as a result, the secured creditor obtains a windfall at the expense of the unpaid claimant. Collier on Bankruptcy ¶ 506.06, at 506-58 n. 7a; accord, In re Palomar Truck Corp., 951 F.2d at 232; In re McKeesport Steel Castings Co., 799 F.2d at 94. The logic of the foregoing analysis is further supported when, as in the present case, the trustee supports the attorney’s request for fees and essentially allows the attorney to stand in the shoes of the trustee. To require that the trustee be the party who.nominally requests § 506(c) payment, and to withhold recovery to a § 506(c) claimant on that basis, seems to be a distinction without a difference. Due to the" }, { "docid": "10560069", "title": "", "text": "held that post-petition tax claims were not allowable under § 506(c). The $1,536,000 of pre-petition, unsecured, disputed tax claims cannot be allowed under 11 U.S.C. § 506(c), nor can they be deducted from the value of the estate prior to arriving at the value of Wells Fargo’s secured claim. 29. The evidence did not establish that the $560,000 of professional fees directly benefited Wells Fargo, or were incurred to preserve Wells Fargo’s collateral. Only a small portion thereof attributable to work on liquidating the Sheraton claim for benefit of Wells Fargo has thus far been found without objection to qualify under § 506(c). 30. If Debtors’ theory of deducting every dollar of professional fees from a secured creditor’s collateral valuation were adopted by this Court, debtor’s attorneys generally would be given incentive to engage in costly, time-consuming litigation, in hopes that eventually their legal bills would equal or exceed the value of the secured creditor’s collateral, thereby enabling debtors to pay zero to the secured creditor. Generally, attorneys’ fees in a Chapter 11 case, even a successful case, are not chargeable to a secured creditor if they are incidental to the reorganization, in the absence of showing a “clear and direct” benefit under § 506(c). See 3 Collier on Bankruptcy, ¶ 506.06, pp. 506-62, 64 (15th Ed.1989). See also In re Chicago Lutheran Hospital Ass’n, 89 B.R. 719 (Bankr.N.D.Ill.1988). 31. The cases cited by Debtor are easily distinguishable, because in each the secured creditor impliedly consented to the claims that were ultimately allowed under § 506(c), or the expenses met § 506(c) crite ria. In re McKeesport Steel Castings Co., 799 F.2d 91 (3rd Cir.1986) involved the sale of the debtors as a going concern where the secured creditor consented to (1) its cash collateral being used to pay utility bills and (2) an order granting the utility a super-priority claims. In McKeesport, but for the service supplied by the utility, there would be no going concern to sell; thus, the utility bills were properly allowed, and paid from the proceeds of the sale. In re AFCO Enterprises, Inc., 35" }, { "docid": "18535680", "title": "", "text": "administrative claims can be paid. II. Discussion The issue before the Court is whether § 506(c) of the Bankruptcy Code permits Debtor’s counsel to be paid his Chapter 11 fees from the secured creditor’s collateral after the case has been converted to a Chapter 7. Generally, expenses for the administration of a bankruptcy may not be charged against a secured creditor’s collateral. Matter of F/S Airlease II, Inc., 59 B.R. 769, 778 (Bankr.W.D.Pa.1986), reversed on other grounds, 844 F.2d 99 (3d Cir.1988), cert, denied 488 U.S. 852, 109 S.Ct. 137, 102 L.Ed.2d 110 (1988). A statutorily-created exception to this policy provides: The trustee may recover from property securing an allowed secured claim the reasonable, necessary costs and expenses of preserving, or disposing of, such property to the extent of any benefit to the holder of such claim. 11 U.S.C.A. § 506(c). The burden of proving the benefit from the Debtor’s counsel’s services to the secured creditor is upon the movant. In re Hospitality, Ltd., 86 B.R. 59, 63 (Bankr.W. D.Pa.1988). The United States Court of Appeals for the Third Circuit held that proof that a party’s actions served to preserve the going concern value of a business can constitute proof of such a benefit. In re McKeesport Steel Castings Co., 799 F.2d 91 (3d Cir.1986). In McKeesport the debtor voluntarily instituted Chapter 11 proceedings. Equitable Gas sought to terminate service but the court denied that request and approved a payment schedule. The Debtor failed to adhere to the schedule. Equitable continued to supply gas as required by the order but renewed its petition to terminate service. The court again denied the petition and arranged another payment schedule. The court’s purpose in so doing was to enable the Debtor’s business to be sold as a going concern. After the sale was confirmed Equitable filed a motion for payment of its post-petition claim. The bankruptcy court approved the payment. The district court reversed and the decision was appealed. The Court of Appeals chose to follow a broad interpretation of “benefit” under § 506(c). Quoting the bankruptcy court, the Court of Appeals found" } ]

[ { "docid": "15590981", "title": "", "text": "another (3) through force and violence or intimidation (4) a motor vehicle which had moved in interstate or foreign commerce. See United States v. Singleton, 16 F.3d 1419, 1422 (5th Cir.1994). The district court found that the essential elements of the crime section 924(c)(1) created are the same as the essential elements of the crime charged in section 2119. We agree. The carjacking statute is violated “only when the defendant has a gun.” Singleton, 16 F.3d at 1423. Section 924(c)(1) requires the defendant to us[e] or carr[y] a firearm, while section 2119 requires the defendant to possess a firearm. In light of the Supreme Court’s recent decision broadly interpreting the “use” or “carry” provision of section 924(c), we forego any attempt to reconcile “possess” as used in section 2119 with “uses” or “carries” as those words are used in section 924(c)(1). We agree with the Fifth Circuit’s opinion in Singleton that “any defendant who possesses a firearm within the meaning of section 2119 necessarily uses or carries it as defined in § 924(c)(1).” 16 F.3d at 1423 (internal quotations omitted). The term “crime of violence” as Congress defined it in 18 U.S.C. § 924(c)(3) clearly includes carjacking. “Tak[ing] or attempting] to take by force and violence or by intimidation,” 18 U.S.C. § 2119, encom passes “the use, attempted use, or threatened use of physical force-” 18 U.S.C. § 924(c)(3)(A). Moreover, the defendant need not have engaged in actual violence in order for the predicate offense to be a crime of violence under section 924(c)(1). The offense is a crime of violence if it “by its nature, involves a substantial risk that physical force ... may be used in the course of committing the offense.” 18 U.S.C. § 924(c)(3)(B); see also Singleton, 16 F.3d at 1423 (noting that carjacking is always and without exception a crime of violence as that term is defined in 18 U.S.C. § 924(c)(3)). We also agree with the Fifth Circuit’s conclusion that the defendant’s possession of a firearm must be “in relation to” the carjacking. Singleton, 16 F.3d at 1424-1425. The statutes, therefore, fail the Blockburger" } ]

[ { "docid": "7053659", "title": "", "text": "qualify as a “crime of violence” because it does not fit under § 924(c)(3)(A). Jones’s argument that § 924(c)(3)(B) is unconstitutionally vague under Johnson is foreclosed by our en banc decision in United States v. Gonzalez-Longoria, 831 F.3d 670 (5th Cir. 2016). In Gonzalez-Longoria, we held that the definition of “crime of violence” found in 18 U.S.C. § 16(b) remains constitutional in the aftermath of Johnson. Gonzalez-Longoria, 831 F.3d at 675-77. The definition of “crime of violence” found in § 16(b) is identical to the definition found in § 924(c)(3)(B); therefore, the definition of “crime of violence” under § 924(c)(3)(B) is not unconstitutionally vague. See United States v. Chapman, 851 F.3d 363, 374-75 (5th Cir. 2017). Further, contrary to Jones’s assertion, carjacking fits under the definition set forth in § 924(c)(3)(A) — it “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” Section 2119 provides that a person commits an offense when, “with the intent to cause death or serious bodily harm,” he takes a motor vehicle “by force and violence or by intimidation.” 18 U.S.C. § 2119. Jones contends that because carjacking can be committed by intimidation (i.e., fear of bodily harm), and because a threat to cause harm is not the same as a threat to use force, the “use, attempted use, or threatened use of physical force against the person or property of another” is not an element that must be satisfied in order to convict a defendant under the federal carjacking statute. Therefore, Jones argues, carjacking is not a “crime of violence” under § 924(c)(3)(A). Our own precedent, although in the bank robbery context, leads us to conclude that a crime that has as an element a taking “by force and violence or by intimidation” is a “crime of violence” under § 924(c)(3)(A). See United States v. Brewer, 848 F.3d 711, 715-16 (5th Cir. 2017) (holding that the bank robbery statute, 18 U.S.C. § 2113(a) — which similarly requires taking property “by force and violence, or by intimidation” — is a crime of violence" }, { "docid": "15335931", "title": "", "text": "his will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property....” Id. § 1951(b)(1). Count 4 further charged Saint Fleur with, and Saint Fleur pled guilty to, committing robbery “by means of actual and threatened force, violence, and fear of injury.” Thus, the elements of Saint Fleur’s § 1951 robbery, as replicated in the indictment, require the use, attempted use, or threatened use of physical force “against the person or property of another.” See id.; 18 U.S.C. § 924(c)(8)(A). In sum, Saint Fleur pled guilty to using, carrying, and discharging a firearm during the Hobbs Act robbery set forth in Count 4, which robbery offense meets the use-of-force clause of the definition of a crime of violence under § 924(c)(3)(A). This means Saint Fleur’s sentence would be valid even if Johnson makes the § 924(c)(3)(B) residual clause unconstitutional. Accordingly, because Saint Fleur has failed to make a prima facie showing of the existence of either of the grounds set forth in 28 U.S.C. §2255, his application for leave to file a second or successive motion is hereby DENIED. . We also note that the ACCA § 924(e) sentence enhancement and the § 924(c) penalty each appear to serve a different statutory purpose. Compare 18 U.S.C. § 924(c) (providing for a consecutive term of imprisonment for defendants who use a firearm during a concurrent and simultaneous crime of violence or drug trafficking crime), with 18 U.S.C. § 924(e) (providing for an enhanced term of imprisonment for a § 922(g)(1) conviction of a felon in possession of a firearm who had three past convictions for a violent felony or serious drug offense). . In Pinder, this Court stated that the applicant's § 924(c) sentence \"appear[ed] to have been based on a conviction for conspiracy to commit Hobbs Act robbery.” Pinder, 824 F.3d at 979 n. 1, 2016 WL 3081954 at *2 n. 1. However, unlike Pinder, this case involves the actual commission of a Hobbs Act robbery. MARTIN, Circuit Judge, concurring: I agree that Marckson Saint Fleur’s 18 U.S.C. §" }, { "docid": "10631361", "title": "", "text": "low threshold of violent force is necessarily satisfied in attempted bank robbery by intimidation. A bank employee can reasonably believe that a robber’s demands for money to which he is not entitled will be met with violent force of the type satisfying Curtis Johnson because bank robbery under § 2113(a) inherently contains a threat of violent physical force. Armour also argues that his conviction should be vacated because robbery under § 2113(d) could be accomplished by “assault.” The jury was instructed here that “assault” means “an intentional attempt to inflict, or threat to inflict, bodily injury upon another person with the apparent and present ability to cause such injury that creates in the victim a reasonable fear or apprehension of bodily harm. An assault may be committed without actually touching, striking, or injuring the other person.” Under § 2113(d), the “assault” putting the victim in fear must be “by the use of a dangerous weapon or device,” so we need not worry about such hypothetical minor injuries as paper cuts or hits from painful snowballs. Cf. Flores v. Ashcroft, 350 F.3d 666, 670, 672 (7th Cir. 2003) (misdemeanor battery with bodily injury not a crime of domestic violence under immigration statute because such minor injuries could satisfy criminal statute). Thus, for the same reasons that robbery by intimidation under § 2113(a) qualifies as a crime of violence under § 924(c), so does robbery by assault by a dangerous weapon or device under § 2113(d). The victim’s fear of bodily harm is necessarily fear of violent physical force that is inherent in armed bank robbery. For these reasons, robbery by intimidation under § 2113(a) and robbery by assault by a dangerous weapon or device under § 2113(d) have as an element the use, attempted use, or threatened use of physical force against the person or property of another and thus qualify as crimes of violence under § 924(c). Accord, In re Sams, 830 F.3d 1234, 1238 (11th Cir. 2016); In re Hines, 824 F.3d 1334, 1337 (11th Cir. 2016); United States v. McNeal, 818 F.3d 141, 153 (4th Cir. 2016). We" }, { "docid": "11383553", "title": "", "text": "see Davila v. United States, 843 F.3d 729, 731 (7th Cir. 2016), but here we must confront it. The Hobbs Act defines robbery, in relevant part, as the taking of personal property “by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property.” 18 U.S.C. § 1951(b)(1). Committing such an act necessarily requires using or threatening force. Pressing the opposite view, Anglin asserts that a robber hypothetically could put his victim in “fear of injury5’ without using or threatening force. This argument is contrary to our precedents. In United States v. Armour, 840 F.3d 904 (7th Cir. 2016), we considered whether the § 924(c)(3)(A) elements clause encompassed federal attempted armed bank robbery as defined by 18 U.S.C. § 2113(a), (d)—which can be accomplished “by intimidation” or by “assault,” with “assault” defined as “an intentional attempt to inflict or threat to inflict, bodily injury ... that creates in the victim a reasonable fear or apprehension of bodily harm” and that “may be committed without actually touching, striking, or injuring the other person.” Id. at 908-09. We answered yes, reasoning that a “victim’s fear of bodily harm is necessarily fear of violent physical force.” Id. at 909. We also held in Armour that Indiana robbery, which similarly can be accomplished by “putting any person in fear,” satisfied the identical “use, attempted use, or threatened use of physical force” requirement in § 4B1.2(a)(l) of the Sentencing Guidelines. 840 F.3d at 907. In so holding, we rejected the argument that Anglin makes here, that “ ‘putting any person in fear’ does not necessarily involve ‘the use, attempted use, or threatened use of physical force against the person of another.’ ” Ibid. And we rejected similar arguments in United States v. Duncan, 833 F.3d 751, 758 (7th Cir. 2016) (“In the ordinary case, robbery by placing a person in fear of bodily injury under Indiana law involves an explicit or implicit threat of physical force and therefore qualifies as a violent felony under § 924(e)(2)(B)(i).”), and in United States v. Lewis, 405 F.3d 511, 514" }, { "docid": "11383555", "title": "", "text": "(7th Cir. 2005) (equating “the use, attempted use, or threatened use of physical force” with “putting any person in fear” of physical injury). For these reasons, Hobbs Act robbery is a “crime of violence” within the meaning of § 923(c)(3)(A). In so holding, we join the unbroken consensus of other circuits to have resolved this question. See United States v. Hill, 832 F.3d 135, 140-44 (2d Cir. 2016); In re St. Fleur, 824 F.3d 1337, 1340 (11th Cir. 2016); United States v. Howard, 650 FedAppx. 466, 468 (9th Cir. 2016); cf. United States v. Robinson, 844 F.3d 137, 141-44 (3d Cir. 2016) (holding that Hobbs Act robbery may constitute a § 924(c) “crime of violence” where, as here, the two crimes are contemporaneous, but not deciding whether Hobbs Act robbery categorically fits the elements clause); id. at 150-51 (Fuentes, J., concurring) (concluding that Hobbs Act robbery categorically fits the elements clause). And because Hobbs Act robbery is a crime of violence under § 924(c)(3)’s elements clause, it was a valid predicate for Anglin’s § 924(c)(1)(A)(iii) conviction. C. Sentencing Anglin argues that the district court committed a variety of sentencing errors. 1. Custodial Sentence First, Anglin asserts that the district court erred by failing to address his argument that the government’s recommended 257-month sentence unfairly punished him for going to trial. That is wrong, as the court did address the argument. At the hearing, Anglin’s counsel reiterated at some length the argument from his sentencing brief that the government’s recommendation sought to impose a “trial penalty.’’ The court responded, cutting in after several minutes: “[T]his court does not enhance a defendant’s sentence merely because he or she has asked for a trial. I never have and I never will. So you can rest assured that there will be no additional punishment imposed in this case just because your client went to trial.” That promise acknowledged—indeed, agreed with—the thrust of Anglin’s argument, and the judge later reiterated it in announcing and justifying the sentence. As proof that the district court refused to consider his ai'gument, Anglin points to the judge’s explanation of" }, { "docid": "969156", "title": "", "text": "physical force against the person or property of another” as nec essary to constitute a crime of violence under § 924(e)(3)(A). The jury therefore convicted defendant of a crime of violence. Other circuits have unanimously acknowledged Hobbs Act divisibility and found that Hobbs Act robbery constitutes a crime of violence. In United States v. Hill, the Second Circuit held that the defendant committed “Hobbs Act robbery,” and looked to the definition of robbery in § 1951(b)(1) for the elements of the offense. 882 F.3d 135, 138-39 (2d Cir. 2016). The Second Circuit rejected the defendant’s argument that one could commit Hobbs Act robbery by “putting the victim in fear of injury” without violence or the threat of violence. Id. at 142-43. It further noted that a hypothetical nonviolent violation of the statute, without evidence of actual application of the statute to such conduct, is insufficient to show a “realistic probability” that Hobbs Act robbery could encompass nonviolent conduct. Id. at 139-40, 142-43 (citing Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007)). Five other circuit courts have reached similar conclusions. See United States v. Anglin, 846 F.3d 954, 964-65 (7th Cir. 2017); United States v. Howard, 650 Fed.Appx. 466, 467-68 (9th Cir. 2016); In re Saint Fleur, 824 F.3d 1337, 1340 (11th Cir. 2016); United States v. House, 825 F.3d 381, 387 (8th Cir. 2016); cf. United States v. Robinson, 844 F.3d 137, 141-44 (3d Cir. 2016) (defendant’s Hobbs Act robbery conviction is a § 924(c) crime of violence because he was simultaneously convicted of brandishing a firearm during the robbery), id. at 150-51 (Fuentes, J., concurring) (Hobbs Act robbery is categorically a crime of violence under § 924(c)). We join our sister circuits in ruling that Hobbs Act robbery constitutes a crime of violence. The district court did not plainly err in sentencing defendant under § 924(c). AFFIRMED. . The prosecution indicted defendant alongside codefendants Larnell Tripp, Jr., and Ashley White. Other participants in the robberies at issue — Shawn Caldwell and Greg Williams, Jr. — pleaded guilty to their involvement and separately appealed" }, { "docid": "23375131", "title": "", "text": "one take or attempt to take by force and violence or by intimidation, which is what the federal carjacking statute does, satisfies the force clause of § 924(c), which requires the use, attempted use, or threatened use of physical force.” Id (footnote omitted); see United States v. Evans, 848 F.3d 242, 247 (4th Cir. 2017) (reasoning that carjacking by “intimidation” under § 2119 necessarily includes a threat of force and is a crime of violence under § 924(c)(3)(A)). Furthermore, attempted or threatened force against either “the person or property of another” satisfies that elements requirement in § 924(c)(3)(A). Of course, attempted carjacking by “force and violence” (as proscribed in § 2119(1)) is readily recognized as a crime of violence under § 924(c)(3)(A). Yet, our inquiry under the categorical approach must also be whether attempted taking of a car by “intimidation” qualifies, too. The term “intimidation” in the carjacking statute, however, cannot be read-in isolation, but must be considered with the requisite intent under § 2119(1), which is intimidation conduct “with the intent to cause death or serious bodily injury.” Proscribed criminal conduct where the defendant must take the car by intimidation and act with intent to kill or cause serious bodily injury is 'unmistakably a crime of violence also. See United States v. McGuire, 706 F.3d 1333, 1336-38 (11th Cir. 2013) (involving an attempt to disable an aircraft and explaining that an “ ‘active crime’ done ‘intentionally’ against the property of another, with extreme and manifest indifference to the owner of that property and the wellbeing of the passengers” is “unmistakably violent” and “[i]t makes little difference that the physical act, in isolation from the crime, can be done with a minimum of force”); United States v. Kelley, 412 F.3d 1240, 1244 (11th Cir. 2005) (analyzing “intimidation” in the similarly worded bank robbery statute in 18 U.S.C. § 2113(a) and concluding that “intimidation occurs when an ordinary person in the teller’s position reasonably could infer a threat of bodily harm from the defendant’s acts”); see also In re Sams, 830 F.3d 1234, 1238-39 (11th Cir. 2016) (concluding that a §" }, { "docid": "12201960", "title": "", "text": "bank robbery, in violation of 18 U.S.C. § 2113(a) and (d), “clearly” qualifies as a “crime of violence” under the § 924(c)(3)(A) use-of-force clause without regard to the § 924(c)(3)(B) residual clause); In re Colon, 826 F.3d 1301, 1304-06, Nos. 16-13021-J, 16-13264-J, 2016 WL 3461009, at *3-4 (11th Cir. June 24, 2016) (same for a companion conviction for aiding and abetting a Hobbs Act robbery); In re Smith, 829 F.3d 1276, 1279-80, Nos. 16-13661-J, 16-14000-J, 2016 WL 3895243, at *3 (11th Cir. July 18, 2016) (same for a companion conviction for carjacking, in violation of 18 U.S.C. § 2119); see also In re Gordon, 827 F.3d 1289, 1294, Nos. 16-13681-J, 16-13803-J, 2016 WL 3648472, at *4 (11th Cir. July 8, 2016) (concluding that Saint Fleur and Hines do not conflict with Pinder and rejecting the claim that under the prior panel precedent rule, Pinder, not Saint Fleur and Hines, control the outcome of an applicant’s Johnson-based § 924(c) claim). Here, Sams was indicted on one count of bank robbery, in violation of § 2113(a) (“Count 1”), and one count of possessing, carrying, using, and brandishing of a firearm during the commission of a crime of violence, in violation of § 924(c)(1)(A)(ii) (“Count 3”). Count 1 of the indictment charged that Sams, “by force and violence and intimidation, took United States Currency from the person of another which was in the care, custody, control, management and possession of Northwest Georgia Bank, a bank insured by the Federal Deposit Insurance Corporation.” Count 3 of the indictment charged that Sams “possessed, carried, used, and brandished a firearm during the commission of a crime of violence, that is, the bank robbery alleged in Count One.” A jury convicted Sams of Counts 1 and 3. Sams was sentenced to a term of imprisonment of 240 months as to the § 2113(a) conviction in Count 1 and a consecutive term of 84 months as to the § 924(c) conviction in Count 3. Sams has not made a prima facie showing for relief under Johnson as to his conviction pursuant to § 924(c). Sams’s § 924(c) conviction" }, { "docid": "7053660", "title": "", "text": "takes a motor vehicle “by force and violence or by intimidation.” 18 U.S.C. § 2119. Jones contends that because carjacking can be committed by intimidation (i.e., fear of bodily harm), and because a threat to cause harm is not the same as a threat to use force, the “use, attempted use, or threatened use of physical force against the person or property of another” is not an element that must be satisfied in order to convict a defendant under the federal carjacking statute. Therefore, Jones argues, carjacking is not a “crime of violence” under § 924(c)(3)(A). Our own precedent, although in the bank robbery context, leads us to conclude that a crime that has as an element a taking “by force and violence or by intimidation” is a “crime of violence” under § 924(c)(3)(A). See United States v. Brewer, 848 F.3d 711, 715-16 (5th Cir. 2017) (holding that the bank robbery statute, 18 U.S.C. § 2113(a) — which similarly requires taking property “by force and violence, or by intimidation” — is a crime of violence under United States Sentencing Guidelines § 4B1.2, which defines “crime of violence” in exactly the same manner as § 924(c)(3)(A)). To hold otherwise would create a circuit split with at least two of our sister circuits. See In re Smith, 829 F.3d 1276, 1280-81 (11th Cir. 2016) (holding that the elements of carjacking under § 2119 “meet the requirements that the force clause in § 924(c)(3)(A) sets out for a qualifying underlying offense”); United States v. Evans, 848 F.3d 242, 247 (4th Cir. 2017) (holding that the elements of carjacking under § 2119 satisfy § 924(c)(3)(A) and noting that the court is “not aware of any ease in which a court' has interpreted the term ‘intimidation’ in the carjacking statute as meaning anything other than a threat of violent force”). In light of our precedent addressing an analogous statute, we see no reason to create such a circuit split by holding differently from how our sister circuits have held. See Home Port Rentals, Inc. v. Int’l Yachting Grp., Inc., 252 F.3d 399, 407 (5th Cir." }, { "docid": "21507358", "title": "", "text": "as a crime of violence under § 924(c). See, e.g., In re Saint Fleur, 824 F.3d 1337, 1340-41, No. 16-12299, 2016 WL 3190539, at *3 (11th Cir. June 8, 2016) (concluding that a companion conviction for substantive Hobbs Act robbery “clearly qualifies as a ‘crime of violence’ under the use-of-force clause in § 924(c)(3)(A)” without regard to the § 924(c)(3)(B) residual clause); In re Hines, 824 F.3d 1334, 1336-37, No. 16-12454, 2016 WL 3189822, at *2 (11th Cir. June 8, 2016) (concluding that a com panion conviction for armed bank robbery, in violation of 18 U.S.C. § 2113(a) and (d), “clearly” qualifies as a “crime of violence” under the § 924(c)(3)(A) use-of-force clause without regard to the § 924(c)(3)(B) residual clause); In re Colon, 826 F.3d 1301, 1304-05, Nos. 16-13021-J, 16-13264-J, 2016 WL 3461009, at *3 (11th Cir. June 24, 2016) (concluding that a companion conviction for aiding and abetting a Hobbs Act robbery “clearly qualifies as a ‘crime of violence’ under the use-of-force clause in § 924(c)(3)(A)” without regard to the § 924(c)(3)(B) residual clause). In those cases, the § 924(c) companion conviction clearly qualified as a crime of violence. The applicant’s argument that Saint Fleur and Hines conflict with Pin-der fails because the companion conviction in Pinder was conspiracy to commit Hobbs Act robbery, while Saint Fleur and Hines involved different companion convictions, that is substantive Hobbs Act robbery and armed bank robbery under § 2113(a) and (d), respectively. Indeed this Court specifically distinguished Pinder in both Saint Fleur and Hines. Therefore, we reject the claim that under the prior panel precedent rule, Pinder, not Saint Fleur and Hines, control Gordon’s case. Accordingly, Saint Fleur controls and we need not decide the § 924(c)(3)(B) residual clause issue in this particular case because even if Johnson’s rule about the ACCA residual clause applies to the § 924(c)(3)(B) residual clause, Gordon’s claim does not meet the statutory criteria for granting his § 2255(h) application. This Court has held that a companion Hobbs Act robbery conviction, such as Gordon’s, qualifies as a “crime of violence” under the use-of-force clause in §" }, { "docid": "1318075", "title": "", "text": "clause in § 924(c)(3)(A). Aiding and abetting, under 18 U.S.C. §2, “is not a separate federal crime, but rather an alternative charge that permits one to be found guilty as a principal for aiding or procuring someone else to commit the offense.” United States v. Sosa, 777 F.3d 1279, 1292 (11th Cir. 2015) (quotation marks omitted). “A person who ‘aids, abets, counsels, commands, induces or procures’ the commission of an offense ‘is punishable as a principal.’” United States v. Williams, 334 F.3d 1228, 1232 (11th Cir. 2003) (quoting 18 U.S.C. § 2). Indeed, “[u]nder § 2, the acts of the principal become those of the aider and abettor as a matter of law.” Id. “[Njothing in the language of § 924(c)(1) indicates] that Congress intended to vitiate ordinary principles of aiding and abetting liability for purposes of sentencing under that subsection.” Id. at 1233. This Court has held that a companion substantive Hobbs Act robbery conviction qualifies as a “crime of violence” under the use-of-force clause in § 924(c)(3)(A). In re Saint Fleur, 824 F.3d 1337, 1341, No. 16-12299, 2016 WL 3190539, at *4 (11th Cir. June 8, 2016). Because an aider and abettor is responsible for the acts of the principal as a matter of law, an aider and abettor of a Hobbs Act robbery necessarily commits all the elements of a principal Hobbs Act robbery. See Williams, 334 F.3d at 1232. And because the substantive offense of Hobbs Act robbery “has as an element the use, attempted use, or threatened use of physical force against the person or property of another,” which this Court held to be the case in In re Saint Fleur, then an aider and abettor of a Hobbs Act robbery necessarily commits a crime that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” Accordingly, Colon’s conviction for aiding and abetting a Hobbs Act robbery qualifies as a “crime of violence” under the § 924(c)(3)(A) use-of-force clause, without regard to the § 924(c)(3)(B) residual clause. In short, Colon pled guilty to aiding" }, { "docid": "12201959", "title": "", "text": "companion charge of conspiracy to commit Hobbs Act robbery might qualify as a crime of violence under § 924(c). Id. at 1189-90, 2016 WL 3081954, at *2 n. 1. Because it was not clear whether conspiracy to commit Hobbs Act robbery qualified as a crime of violence under § 924(c), this Court concluded that the applicant had made a prima facie case that Johnson impacted the validity of his § 924(c) conviction. Id. In other cases, it has been clear that the § 924(c) companion conviction qualifies as a crime of violence under § 924(c). See, e.g., In re Saint Fleur, 824 F.3d 1337, 1340-41, No. 16-12299-J, 2016 WL 3190539, at *3 (11th Cir. June 8, 2016) (concluding that a companion conviction for substantive Hobbs Act robbery “clearly qualifies as a ‘crime of violence’ under the use-of-force clause in § 924(c)(3)(A)” without regard to the § 924(c)(3)(B) residual clause); In re Hines, 824 F.3d 1334, 1337, No. 16-12454-F, 2016 WL 3189822, at *3 (11th Cir. June 8, 2016) (concluding that a companion conviction for armed bank robbery, in violation of 18 U.S.C. § 2113(a) and (d), “clearly” qualifies as a “crime of violence” under the § 924(c)(3)(A) use-of-force clause without regard to the § 924(c)(3)(B) residual clause); In re Colon, 826 F.3d 1301, 1304-06, Nos. 16-13021-J, 16-13264-J, 2016 WL 3461009, at *3-4 (11th Cir. June 24, 2016) (same for a companion conviction for aiding and abetting a Hobbs Act robbery); In re Smith, 829 F.3d 1276, 1279-80, Nos. 16-13661-J, 16-14000-J, 2016 WL 3895243, at *3 (11th Cir. July 18, 2016) (same for a companion conviction for carjacking, in violation of 18 U.S.C. § 2119); see also In re Gordon, 827 F.3d 1289, 1294, Nos. 16-13681-J, 16-13803-J, 2016 WL 3648472, at *4 (11th Cir. July 8, 2016) (concluding that Saint Fleur and Hines do not conflict with Pinder and rejecting the claim that under the prior panel precedent rule, Pinder, not Saint Fleur and Hines, control the outcome of an applicant’s Johnson-based § 924(c) claim). Here, Sams was indicted on one count of bank robbery, in violation of § 2113(a) (“Count" }, { "docid": "16988983", "title": "", "text": "Act robbery (Count 1). This conviction served as a companion to a conviction for conspiracy to possess a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(o) (Count 2). Mr. Chance was also convicted of six counts of substantive Hobbs Act robbery (Counts 26, 28, 30, 32, 34, and 36), accompanied by six counts of possession of a firearm during and in relation, to a crime of violence, in violation of 18 U.S.C. § 924(c)(1) (Counts 25, 27, 29, 31, 33, and 35). The sentencing court imposed a total sentence of 1,794 months’ imprisonment. After we decided that conspiracy to commit Hobbs Act robbery might not qualify as a valid companion conviction to a § 924(c) conviction after Johnson, we held that the substantive offense of Hobbs Act robbery still qualifies as a valid companion conviction notwithstanding Johnson. See In re Saint Fleur, 824 F.3d 1337, 1340-42, 2016 WL 3190539, at *3-4 (11th Cir.2016). The Saint Fleur panel noted the indictment charged that Mr. Saint Fleur committed Hobbs Act robbery as defined in 18 . U.S.C. § 1951(b)(1) and did so “by means of actual and threatened force, violence, and fear of injury,” which satisfied § 924(c)’s elements clause. Id. at 1340. As to the Hobbs Act robberies and corresponding § 924(c) convictions in Counts 25 through 36, here, as in Saint Fleur, Mr. Chance’s indictment stated that he committed robbery as defined in 18 U.S.C. § 1951(b)(1), “by means of actual and threatened force, violence, and fear of injury.” Thus, as in Saint Fleur, Mr. Chance’s companion convictions for Hobbs Act robbery still qualify as crimes of violence and support his § 924(c) convictions in Counts 25, 27, 29, 31, 33, and 35. See In re Gordon, 827 F.3d 1289, 1294, 2016 WL 3648472, at *4 (11th Cir.2016) (concluding that this Court’s decision in Saint Fleur did not conflict with its decision in Pinder). Pinder, however, governs Mr. Chance’s § 924(o) conspiracy to possess a firearm during and in relation to a crime of violence conviction because its companion conviction was" }, { "docid": "11383554", "title": "", "text": "striking, or injuring the other person.” Id. at 908-09. We answered yes, reasoning that a “victim’s fear of bodily harm is necessarily fear of violent physical force.” Id. at 909. We also held in Armour that Indiana robbery, which similarly can be accomplished by “putting any person in fear,” satisfied the identical “use, attempted use, or threatened use of physical force” requirement in § 4B1.2(a)(l) of the Sentencing Guidelines. 840 F.3d at 907. In so holding, we rejected the argument that Anglin makes here, that “ ‘putting any person in fear’ does not necessarily involve ‘the use, attempted use, or threatened use of physical force against the person of another.’ ” Ibid. And we rejected similar arguments in United States v. Duncan, 833 F.3d 751, 758 (7th Cir. 2016) (“In the ordinary case, robbery by placing a person in fear of bodily injury under Indiana law involves an explicit or implicit threat of physical force and therefore qualifies as a violent felony under § 924(e)(2)(B)(i).”), and in United States v. Lewis, 405 F.3d 511, 514 (7th Cir. 2005) (equating “the use, attempted use, or threatened use of physical force” with “putting any person in fear” of physical injury). For these reasons, Hobbs Act robbery is a “crime of violence” within the meaning of § 923(c)(3)(A). In so holding, we join the unbroken consensus of other circuits to have resolved this question. See United States v. Hill, 832 F.3d 135, 140-44 (2d Cir. 2016); In re St. Fleur, 824 F.3d 1337, 1340 (11th Cir. 2016); United States v. Howard, 650 FedAppx. 466, 468 (9th Cir. 2016); cf. United States v. Robinson, 844 F.3d 137, 141-44 (3d Cir. 2016) (holding that Hobbs Act robbery may constitute a § 924(c) “crime of violence” where, as here, the two crimes are contemporaneous, but not deciding whether Hobbs Act robbery categorically fits the elements clause); id. at 150-51 (Fuentes, J., concurring) (concluding that Hobbs Act robbery categorically fits the elements clause). And because Hobbs Act robbery is a crime of violence under § 924(c)(3)’s elements clause, it was a valid predicate for Anglin’s § 924(c)(1)(A)(iii)" }, { "docid": "1318079", "title": "", "text": "Mr. Colon received that sentence because he pleaded guilty to aiding and abetting a robbery. Our court has held that § 924(c) sentences that were based on conspiracy to commit robbery may not survive Johnson. See In re Pinder, No. 16-12084, 824 F.3d 977, 978-79, 2016 WL 3081954, at *1-2 (11th Cir. June 1, 2016). Shortly after Pin-der issued, this court held that it does not apply when a § 924(c) sentence is based on the actual commission of a robbery. See In re Saint Fleur, No. 16-12299, 824 F.3d 977, 979-81, 2016 WL 3190539, at *3-4 (11th Cir. June 8, 2016). Saint Fleur distinguished Pinder by saying that the actual commission of a robbery meets the “elements clause” definition in 18 U.S.C. § 924(c)(3)(A), and while Johnson may call the § 924(c)(3)(B)’s “crime of violence” definition into question, it does not affect the § 924(c)(3)(A) definition (which is usually called the “elements clause” or “use of force” clause). I am aware of no precedent deciding the question of whether aiding and abetting a crime meets the “elements clause” definition. That definition requires a crime that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” 18 U.S.C. § 924(c)(3)(A). As best I can tell (though we have not had any briefing on this question, and I have not had much time to think through the issue), a defendant can be convicted of aiding and abetting a robbery without ever using, attempting to use, or threatening to use force. The only aiding and abetting § 924(c) case the majority cites is United States v. Williams, 334 F.3d 1228, 1232 (11th Cir. 2003). Williams is not helpful here for two reasons. First, unlike Mr. Colon, Mr. Williams was convicted of committing an actual Hobbs Act robbery. The question in Williams was therefore not whether a defendant who merely aids and abets a Hobbs Act robbery can be sentenced under § 924(c). Rather, the question was whether the defendant who committed the Hobbs Act robbery can be sentenced under § 924(c)" }, { "docid": "6354362", "title": "", "text": "commit a Hobbs Act robbery via non-violent means—for example, by threatening to throw paint on someone’s house. The majority opinion did not address this argument because it was unnecessary under its analysis but the argument nonetheless fails even under the categorical approach. Physical force, as explained by the Supreme Court, connotes simply force that is violent enough to be capable of causing injury. Johnson, 559 U.S. at 140, 130 S.Ct. 1265. No more, no less, Thus, as long as a -jury finds that a threat to throw paint can cause a \"fear of injury\" sufficient to satisfy Hobbs Act robbery, then that defendant has also sufficiently \"threatened [to] use physical force\" to satisfy the \"crime of violence” definition. Legislative history supports this position. Congress specifically singled out the federal bank robbery statute as a crime that is the prototypical \"crime of violence” captured by Section 924(c). See S. Rep. No. 98-225, at 312-13. Yet, the federal bank robbery statute, IS U.S.C. § 2113(a), is analogous to Hobbs Act robbery. See Howard, 650 Fed.Appx. at 468. Section 2113 may be violated by \"force and violence, or by intimidation,\" just as the Hobbs Act robbery statute may be violated by \"actual of threatened force, or violence, or fear of injury.” From this, we can surmise that Congress intended the “physical force” element to be satisfied by intimidation or, analogously, fear of injury. .In addition to concurring in the judgment, I concur with the majority’s analysis in Section IV." }, { "docid": "6354361", "title": "", "text": "at 3 (\"Was Mr, Robinson wrongly convicted of brandishing a firearm under 18 U.S.C. § 924(c)(3), since Hobbs Act robbery, 18 U.S.C. § 1951(b), is not a categorical crime of violence ... ?”). . Mathis, 136 S.Ct. at 2249. . Id. at 2257 (internal quotation marks omitted), . See, e.g„ App’x at 32-33 (indictment charging Robinson with “unlawfully [talcing and obtaining] approximately $100 United States currency, property of Subway, from the person or in the presence of J.H., an employee of Subway known to the grand jury, and against J.H.’s will, by means of actual and threatened force, violence, and fear of injury, immediate and future, to her person and property, that is, by brandishing a handgun and using the handgun to threaten and intimidate the victim J.H.”). .App’x at'535. . 18 U.S.C. § 1951(b)(1). . Hill, 832 F.3d at 141-42 (citing Johnson v. United States, 559 U.S. 133, 139-40, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010)). . Robinson argues that a Hobbs Act robbery cannot be a crime of violence because a defendant could commit a Hobbs Act robbery via non-violent means—for example, by threatening to throw paint on someone’s house. The majority opinion did not address this argument because it was unnecessary under its analysis but the argument nonetheless fails even under the categorical approach. Physical force, as explained by the Supreme Court, connotes simply force that is violent enough to be capable of causing injury. Johnson, 559 U.S. at 140, 130 S.Ct. 1265. No more, no less, Thus, as long as a -jury finds that a threat to throw paint can cause a \"fear of injury\" sufficient to satisfy Hobbs Act robbery, then that defendant has also sufficiently \"threatened [to] use physical force\" to satisfy the \"crime of violence” definition. Legislative history supports this position. Congress specifically singled out the federal bank robbery statute as a crime that is the prototypical \"crime of violence” captured by Section 924(c). See S. Rep. No. 98-225, at 312-13. Yet, the federal bank robbery statute, IS U.S.C. § 2113(a), is analogous to Hobbs Act robbery. See Howard, 650 Fed.Appx. at 468." }, { "docid": "15335930", "title": "", "text": "meet the statutory criteria for granting this § 2255(h) application. This is because Saint Fleur’s companion conviction for Hobbs Act robbery, which was charged in the same indictment as the § 924(c) count, clearly qualifies as a “crime of violence” under the use-bf-force clause in § 924(c)(3)(A). The indictment and the judgment make clear that Saint Fleur’s § 924(c) sentence was not pursuant to the residual clause in subsection (B), but pursuant to the use-of-force clause in subsection (A), which requires that the crime during which the defendant was carrying the firearm be a crime that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” See 18 U.S.C. § 924(c)(3)(A). Specifically, Saint Fleur pled guilty to Count 4, which charged that Saint Fleur did affect commerce “by means of robbery,” as the term robbery is defined in 18 U.S.C. § 1951(b)(1). “The term ‘robbery’ means the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property....” Id. § 1951(b)(1). Count 4 further charged Saint Fleur with, and Saint Fleur pled guilty to, committing robbery “by means of actual and threatened force, violence, and fear of injury.” Thus, the elements of Saint Fleur’s § 1951 robbery, as replicated in the indictment, require the use, attempted use, or threatened use of physical force “against the person or property of another.” See id.; 18 U.S.C. § 924(c)(8)(A). In sum, Saint Fleur pled guilty to using, carrying, and discharging a firearm during the Hobbs Act robbery set forth in Count 4, which robbery offense meets the use-of-force clause of the definition of a crime of violence under § 924(c)(3)(A). This means Saint Fleur’s sentence would be valid even if Johnson makes the § 924(c)(3)(B) residual clause unconstitutional. Accordingly, because Saint Fleur has failed to make a prima facie showing of the existence of either of the grounds set forth in 28 U.S.C." }, { "docid": "11383552", "title": "", "text": "the use, attempted use, or threatened use of physical force against the person or property of another” (the elements clause, also known as the force clause), or “(B) by its nature, involves a substantial risk that physical force against the person or property of another may be used” (the residual clause). Anglin was convicted of Hobbs Act robbery, 18 U.S.C. § 1951(a), for the December 9 repair shop robbery, during which he discharged his gun. The question, then, is whether a Hobbs Act robbery conviction can serve as a predicate “crime of violence” under either prong of § 924(c)(3). Anglin argues that the § 924(e)(3)(B) residual clause is invalid under Johnson, — U.S.-, 135 S.Ct. 2551, 192 L.Ed.2d 569. In this, he is right. See United States v. Cardena, 842 F.3d 959, 996 (7th Cir. 2016) (“[W]e hold that the residual clause in 18 U.S.C. § 924(c)(3)(B) is ... unconstitutionally vague.”). That leaves the question whether Hobbs Act robbery falls within the § 924(c)(3)(A) elements clause. We recently found it unnecessary to decide that issue, see Davila v. United States, 843 F.3d 729, 731 (7th Cir. 2016), but here we must confront it. The Hobbs Act defines robbery, in relevant part, as the taking of personal property “by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property.” 18 U.S.C. § 1951(b)(1). Committing such an act necessarily requires using or threatening force. Pressing the opposite view, Anglin asserts that a robber hypothetically could put his victim in “fear of injury5’ without using or threatening force. This argument is contrary to our precedents. In United States v. Armour, 840 F.3d 904 (7th Cir. 2016), we considered whether the § 924(c)(3)(A) elements clause encompassed federal attempted armed bank robbery as defined by 18 U.S.C. § 2113(a), (d)—which can be accomplished “by intimidation” or by “assault,” with “assault” defined as “an intentional attempt to inflict or threat to inflict, bodily injury ... that creates in the victim a reasonable fear or apprehension of bodily harm” and that “may be committed without actually touching," }, { "docid": "6354358", "title": "", "text": "question is whether the list enumerated in the Hobbs Act robbery definition is broader than the list enumerated in Section 924(c)(3)(A). I find persuasive the Second Circuit’s recent decision in United States v. Hill on the same issue. In a well-reasoned opinion, that court held that all the alternative means of committing a Hobbs Act robbery, “actual or threatened force, or violence, or fear of injury,” can satisfy Section 924(c)(3)(A)’s requirement of “use, attempted use, or threatened use of physical force” because the Supreme Court has already defined “physical force,” in the context of defining a violent felony, to be simply “force capable of causing physical pain or injury to another person.” In other words, by definition, a jury could have found “actual or threatened force, or violence, or fear of injury” only if the defendant used, attempted to use, or threatened to use physical force because “fear of injury” cannot occur without at least a threat of physical force, and vice versa. Accordingly, I find that Hobbs Act robbery is categorically a crime of violence under Section 924(c)(3). In conclusion, I concur in the judgment of the majority and will affirm Robinson’s Section 924(c) conviction. . 18 U.S.C. § 1951(a). . 18 U.S.C. § 924(c). . Maj. Op. at 143-44. .See Mathis v. United States, — U.S. -, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016); United States v. Hill, 832 F.3d 135 (2d Cir. 2016); United States v. Howard, 650 Fed.Appx. 466 (9th Cir. 2016) (unpublished). . 495 U.S. 575, 110 S.Ct 2143, 109 L.Ed.2d 607 (1990). . Id. at 600, 110 S.Ct. 2143. . 18 U.S.C. § 924(e)(1). . Taylor, 495 U.S. at 600, 110 S.Ct. 2143. . Id. at 601, 110 S.Ct. 2143. . Id. . S. Rep. No. 98-225, at 312-13 (1983)(federal crimes such as the bank robbery statute and assault on federal officer statute are specifically discussed as prime examples of \"crimes of violence”). . Taylor, 495 U.S. at 601, 110 S.Ct. 2143. . Maj. Op. at 142-43. . See Hill, 832 F.3d at 139-44 (holding that Hobbs Act robbery is categorically a crime of" } ]

[ { "docid": "1031312", "title": "", "text": "been disciplined, regardless of his speech, for other improprieties incidental to that speech. The district court’s denial of a directed verdict was not error, nor (for the same reason) was its denial of Wagner’s motion for a new trial on his “adverse employment action” claim after the jury had found against him. Turning to the issue of qualified immunity, we agree with both Wagner and the district court that, taking the facts in the light most favorable to Wagner, the disciplines he endured could have made out a first amendment violation. Nonetheless, as a shield to “all but the plainly incompetent or those who knowingly violate the law,” Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986), qualified immunity protects government officials who engage in unconstitu tional conduct so long as that “conduct does not violate clearly established ... constitutional rights of which a reasonable person would have known.” See Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The general right invoked by Wagner — to engage in speech on matters of public concern without retaliation — was clearly established prior to 1994. But qualified immunity requires that the general right be placed in a reasonably specific context; and given the facts surrounding Wagner’s discipline, this is not a case in which reasonable officers, in light of clearly established law, “must have known that [they were] acting unconstitutionally.” Dirrane v. Brookline Police Dep’t, 315 F.3d 65, 71 (1st Cir.2002). To the contrary, Wagner’s broad range of complaints (some consisting of unprotected and antagonistic speech), coupled with his disregard of confidentiality protocols and his disobedience in following the department’s chain of command, would have permitted a reasonable superior officer to believe that he was entitled to discipline Wagner regardless of the content of his speech, consistent with the protections of the first amendment. Even if this reasoning were mistaken, it would not have been egregiously so and, accordingly, qualified immunity is available. See Ringuette v. City of Fall River, 146 F.3d 1, 5 (1st Cir.1998). Little need be said about" } ]

[ { "docid": "13767540", "title": "", "text": "so long as he reasonably could have believed on the facts before him that no violation existed. Dirrane, 315 F.3d at 69. The evidence at trial was that the contract termination decision was made not by Cronin alone, but in conjunction with Cronin’s superiors at the Executive Office of Public Safety. Cronin could quite reasonably believe that this collective decision did not violate Philip’s First Amendment rights. By the time plaintiff rested at trial, it was clear that these decisionmakers had reasons unrelated to Dr. Philip’s protected speech to fire him, and he admitted that he had committed the acts of concern. Before March 3, Dr. Philip had already engaged in inappropriate behavior in exposing people to risk with the bloody death certificate. He had been warned that further inappropriate conduct could lead to immediate termination, yet within days, he behaved inappropriately again. He did not accept responsibility for his actions, but rejected it angrily when asked to explain himself. Not only was the email to the ADA intemperate and unprofessional, but it also posed a risk of further embarrassing an office trying to regain its reputation for professionalism and confidence. See Flomenbaum v. Commonwealth, 451 Mass. 740, 889 N.E.2d 423, 428-30 (2008) (upholding “for cause” removal of Chief Medical Examiner on evidence of incidents which in the view of the EOPS Secretary “had damaged the integrity and reputation of [OCME], and which could have been avoided”). Further, Cronin could reasonably conclude that terminating Dr. Philip’s contract would curtail the potential for further harm to the office. “Even if this reasoning were mistaken, it would not have been egregiously so and, accordingly, qualified immunity is available.” Wagner v. City of Holyoke, 404 F.3d 504, 509 (1st Cir.2005); see also id. (“Wagner’s broad range of complaints (some consisting of unprotected and antagonistic speech), coupled with his disregard of confidentiality protocols and his disobedience in following the department’s chain of command, would have permitted a reasonable superior officer to believe that he was entitled to discipline Wagner regardless of the content of his speech, consistent with the protections of the first amendment.”);" }, { "docid": "16418449", "title": "", "text": "with her. Fa-biano does not point to any relevant City “policy” beyond the mere fact that Hopkins decided to fire him. Nor does he assert that the City has made a well-settled practice of punishing attorneys who have taken legal action against it or otherwise exercised their First Amendment rights. Absent evidence of an unconstitutional municipal policy, a single incident of misconduct cannot provide the basis for municipal liability under § 1983. Oklahoma City v. Tuttle, 471 U.S. 808, 823-24, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985). Such a result would be the equivalent of imposing respondeat superior liability upon the municipality. Id. Fabiano’s termination stands alone as a unique incident of alleged misconduct and does not, as a matter of law, suffice to ground § 1983 liability against the City. B. Individual liability and qualified immunity The individual defendants, Hopkins and Joyce, assert an affirmative defense of qualified immunity. Qualified im munity is intended to shield public officials “from civil damages liability as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated.” Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). “Where the defendant seeks qualified immunity, a ruling on that issue should be made early in the proceedings so that the costs and expenses of trial are avoided where the defense is dispositive.” Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). In assessing this defense, we consider a sequence of questions: (1) whether the facts as alleged make out a constitutional violation; (2) whether that right was clearly established; and (3) whether a similarly situated reasonable official would have understood that her conduct violated clearly established law. Savard v. Rhode Island, 338 F.3d 23, 27 (1st Cir.2003). We are required to take these questions in this order, as the development of the law of qualified immunity is best served by the judicial exposition of the first two inquiries. Saucier, 533 U.S. at 201, 121 S.Ct. 2151; see also Dirrane v. Town of Brookline, 315 F.3d 65, 69" }, { "docid": "13767539", "title": "", "text": "at the time of the alleged violation,” and “whether a reasonable officer, similarly situated, would understand that the challenged conduct violated that established right.” Suboh v. Dist. Attorney’s Office, 298 F.3d 81, 90 (1st Cir.2002). We will take it as clearly established here that a public employee has limited First Amendment rights of speech on matters of public concern under Garcetti, Pickering, and a host of other cases, and that on plaintiffs version of the facts, a First Amendment violation is stated. See Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (violation of constitutional right is threshold question in qualified immunity analysis). Nonetheless, even if a constitutional right is clearly established, the defendant is entitled to qualified immunity so long as a reasonable official in Cronin’s position could believe, albeit mistakenly, that his conduct did not violate the First Amendment. Harlow v. Fitzgerald, 457 U.S. 800, 819, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); Dirrane, 315 F.3d at 69. This is an objective test: Cronin is entitled to immunity so long as he reasonably could have believed on the facts before him that no violation existed. Dirrane, 315 F.3d at 69. The evidence at trial was that the contract termination decision was made not by Cronin alone, but in conjunction with Cronin’s superiors at the Executive Office of Public Safety. Cronin could quite reasonably believe that this collective decision did not violate Philip’s First Amendment rights. By the time plaintiff rested at trial, it was clear that these decisionmakers had reasons unrelated to Dr. Philip’s protected speech to fire him, and he admitted that he had committed the acts of concern. Before March 3, Dr. Philip had already engaged in inappropriate behavior in exposing people to risk with the bloody death certificate. He had been warned that further inappropriate conduct could lead to immediate termination, yet within days, he behaved inappropriately again. He did not accept responsibility for his actions, but rejected it angrily when asked to explain himself. Not only was the email to the ADA intemperate and unprofessional, but it also posed" }, { "docid": "21739666", "title": "", "text": "plaintiff is well-established, so long as the official could reasonably have believed “on the facts” that no violation existed. See Suboh v. Dist. Attorney’s Office, 298 F.3d 81, 90 (1st Cir.2002); Swain v. Spinney, 117 F.3d 1, 9-10 (1st Cir.1997). Id. at 69 Dirrane concerned a police officer who brought frequent complaints to his supervisors about an array of alleged abuses by other police officers. His complaints ranged from relatively minor (e.g., playing cards during work hours) to more serious (e.g., falsifying fingerprint reports and destroying fingerprint evidence). After roughly five years of bringing complaints, the plaintiff was transferred to a different division within the department. Soon thereafter, the plaintiff filed a § 1983 suit against the police department and his supervisors claiming that the transfer constituted retaliation for protected speech. The court in Dirrane, while viewing the evidence as somewhat doubtful, did find that the plaintiff had made out a claim of a “colorable First Amendment violation.” Id. at 70. Nevertheless, the court concluded that the individual defendants were entitled to the protection of qualified immunity. Significant to the court were the facts that (1) Dirrane was never fired; (2) his serious charges were “nestled in a morass of complaints,” and (3) his superiors has “some basis for distrusting Dirrane’s judgment.” Id. Based on this, the Court of Appeals determined that the trial judge was correct in concluding that “this is not a case in which a reasonable officer must have known that he was acting unconstitutionally.” Id. (emphasis in original). As in Dirrane, the record before this court simply does not present a case in which the individual defendants “must have known” that they were acting unconstitutionally. Like the plaintiffs complaints in Dirrane, Wagner’s more serious charges — racism and misappropriation of monies belonging to prisoners — were part of a substantial number of complaints, many involving matters of far less significance. Moreover, while the defendants did attempt to discipline Wagner, sometimes unsuccessfully, he was never terminated. Finally, the individual defendants, in disciplining Wagner, were acting pursuant to departmental regulations, codified by Wagner himself when he was chief," }, { "docid": "14225540", "title": "", "text": "to these claims, the district court assumed the truth of the allegations in the complaint; but it concluded that Dirrane could identify no doctrine or precedent “clearly” establishing that the defendants’ conduct under the circumstances alleged violated his constitutional rights. Accordingly, it held that the officers were protected against damages claims by the doctrine of qualified immunity. Our review on this issue is de novo. Carroll v. Xerox Corp., 294 F.3d 231, 237 (1st Cir.2002). Some First Amendment issues are governed by clear-cut rules, even though there may be close cases on the facts. E.g., Branti v. Finkel, 445 U.S. 507, 517, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980) (political allegiance as a permissible job qualification for policymakers). But for alleged “disruptive speech” by government whistleblowers, the Supreme Court has adopted only a balancing test: the whistle-blower is entitled to protection against retaliation if his speech interests, along with the public’s interest in hearing the speech, outweigh the government’s need to limit distractions, conserve resources, and maintain esprit in the workplace. Pickering v. Bd. of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); Connick v. Myers, 461 U.S. 138, 150-51, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983); Rankin v. McPherson, 483 U.S. 378, 388, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987). This uncertain standard implicates the companion legal doctrine of qualified immunity. Under section 1983, a government employee is immune to damages where a reasonable official could believe (the test is objective), albeit mistakenly, that his conduct did not violate the First Amendment. Harlow v. Fitzgerald, 457 U.S. 800, 818-19, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Immunity exists even where the abstract “right” invoked by the plaintiff is well-established, so long as the official could reasonably have believed “on the facts” that no violation existed. See Suboh v. Dist. Attorney’s Office, 298 F.3d 81, 90 (1st Cir.2002); Swain v. Spinney, 117 F.3d 1, 9-10 (1st Cir.1997). In a decision issued after the district court ruled, the Supreme Court has instructed us to start not with the immunity issue but with the question whether the facts" }, { "docid": "14023684", "title": "", "text": "reached the correct result. I. Background The pertinent facts are few, as we are limited to the allegations in the complaint and the complaint is sparsely drafted. It states that the plaintiffs, Ronald Jordan and Robert McKay, were suspended with pay in the spring of 2004 after the defendants “illegally search[ed] and analyzed] recorded telephone conversations between other officers and superiors.” The con versations at issue, which were recorded on the MBTA’s telephone system, pertained to four matters: (1) requesting criminal offender record information (“CORI”) about several indi.viduals; (2) criticizing the deputy chief and other department management; (3) discussing the chiefs absenteeism and referring to him as “No Show Joe”; (4) discussing safety issues concerning the Dudley Station of the MBTA. Plaintiffs alleged that appellant Carter “personally disciplined and caused damages to the plaintiffs because of their criticism of his job performance and the job performance of his deputies,” in violation of their First Amendment right to free speech. As noted above, the district court rejected appellant’s qualified immunity defense, which shields government actors from damages based on their conduct unless a reasonable official would have known, in light of clearly established law, that he was acting unconstitutionally. See, e.g., Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); Wagner v. City of Holyoke, 404 F.3d 504, 509 (1st Cir.2005) (per curiam), petition for cert. filed, 74 U.S.L.W. 3121 (U.S. Aug. 17, 2005) (No. 05-234); Dirrane v. Brookline Police Dep’t, 315 F.3d 65, 69 (1st Cir.2002), On appeal, appellant continues to pursue such protection, emphasizing that immunity is the norm in public employee First Amendment cases because the constitutional question requires fact-intensive balancing-making it unlikely that a reasonable official “must have known that he was acting unconstitutionally,” Dirrane, 315 F.3d at 71 (emphasis in original). Although appellant is correct that the relevant qualified immunity case law is generally in his favor, his argument fails to appreciate that, because this case comes before us at such a preliminary stage, the immunity analysis is weighted toward the plaintiffs’ version of events, as depicted by the allegations in" }, { "docid": "14023698", "title": "", "text": "a number of years about abuses in the Brookline police force, ranging from minor issues to serious charges of falsification and destruction of evidence. He alleged that his supervisors had failed to seriously investigate his complaints and transferred him in retaliation for making them. We held that the plaintiff had made out “a colorable First Amendment violation,” id. at 70, but because his years of petty complaints gave his superiors a basis for distrusting his judgment — and in the absence of equivalent precedent — we found the individual defendants entitled to qualified immunity. See id. at 71. Although Dirrane also presented an appeal of a motion to dismiss, it provides limited support for appellant’s immunity request. We described the complaint there as “very lengthy,” id. at 70, and we noted allegations detailing the statements that plaintiff made, to whom, and, at least to some extent, their timing. We have none of those particulars here. Appellant could have, but did not, move for a more definite statement. See Fed.R.Civ.P. 12(e); Educadores Puertorriqueños en Acción v. Hernández, 367 F.3d 61, 67 (lst Cir.2004). We therefore cannot eliminate the possibility that the facts once developed will show a violation of clearly established law. As we have intimated above, if plaintiffs’ criticism consisted of serious expressions of concern, voiced in an appropriate manner, about the effect of their supervisors’ poor performance on public safety or other public matters, and appellant’s retaliation was primarily aimed at silencing their criticism for his own advantage, precedent would have clearly established that the balance of interests tipped decisively in plaintiffs’ favor. Appellant is thus not entitled to immunity based on prong two. (3) The Understanding of a Reasonable Official In the third step of the qualified immunity analysis, we consider whether an objectively reasonable officer in the defendant’s position would have understood his action to violate the plaintiffs rights. Mihos, 358 F.3d at 110; Suboh, 298 F.3d at 95. At this stage, as we have noted, the record requires us to look upon plaintiffs’ speech as significantly involving matters of public concern. Similarly, we must assess and" }, { "docid": "14225541", "title": "", "text": "Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); Connick v. Myers, 461 U.S. 138, 150-51, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983); Rankin v. McPherson, 483 U.S. 378, 388, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987). This uncertain standard implicates the companion legal doctrine of qualified immunity. Under section 1983, a government employee is immune to damages where a reasonable official could believe (the test is objective), albeit mistakenly, that his conduct did not violate the First Amendment. Harlow v. Fitzgerald, 457 U.S. 800, 818-19, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Immunity exists even where the abstract “right” invoked by the plaintiff is well-established, so long as the official could reasonably have believed “on the facts” that no violation existed. See Suboh v. Dist. Attorney’s Office, 298 F.3d 81, 90 (1st Cir.2002); Swain v. Spinney, 117 F.3d 1, 9-10 (1st Cir.1997). In a decision issued after the district court ruled, the Supreme Court has instructed us to start not with the immunity issue but with the question whether the facts as alleged make out a violation of the First Amendment. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). This makes sense where the issue is whether some abstract right exists; otherwise the “rights” issue may never be resolved. Id. But it is an uncomfort able exercise where, as here, the answer whether there was a violation may depend on a kaleidoscope of facts not yet fully developed. It may be that Saucier was not strictly intended to cover the latter case. Nevertheless, assuming arguendo that Saucier applies, we agree with Dirrane that a colorable constitutional claim would be made out if everything asserted by Dirrane in his very lengthy complaint were established as true and — perhaps more importantly — defendants had no other facts with which to justify their actions. It is difficult to be more definitive because of a lack of case law; usually, the plaintiff is .derailed before the court reaches the merits question because the plaintiff was a policymaker who could be fired or demoted" }, { "docid": "13767538", "title": "", "text": "before March 1, but on March 1, March 2, and March 3, he made critical comments to persons outside of OCME, unlike his earlier behavior. A jury could have concluded that it was this going outside the agency with his criticisms that was at least a motivating factor in Dr. Philip’s firing. It was also possible for a jury to conclude that there was an overreaction to Dr. Philip’s exercise of poor judgment in his urinate/fart email, despite the prior discipline, which is best explained as retaliation for his protected speech. B. Qualified Immunity Regardless, we have no doubt that Cronin, the sole defendant in this case, is entitled to qualified immunity. Such immunity provides a shield “to all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). “We use a three-part test to determine whether an official is entitled to qualified immunity”: “whether the plaintiffs allegations, if true, establish a constitutional violation,” “whether the right was clearly established at the time of the alleged violation,” and “whether a reasonable officer, similarly situated, would understand that the challenged conduct violated that established right.” Suboh v. Dist. Attorney’s Office, 298 F.3d 81, 90 (1st Cir.2002). We will take it as clearly established here that a public employee has limited First Amendment rights of speech on matters of public concern under Garcetti, Pickering, and a host of other cases, and that on plaintiffs version of the facts, a First Amendment violation is stated. See Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (violation of constitutional right is threshold question in qualified immunity analysis). Nonetheless, even if a constitutional right is clearly established, the defendant is entitled to qualified immunity so long as a reasonable official in Cronin’s position could believe, albeit mistakenly, that his conduct did not violate the First Amendment. Harlow v. Fitzgerald, 457 U.S. 800, 819, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); Dirrane, 315 F.3d at 69. This is an objective test: Cronin is entitled to immunity" }, { "docid": "16418465", "title": "", "text": "ensure that before they are subjected to suit, officers are on notice that their conduct is unlawful.” Id. at 206, 121 S.Ct. 2151; see also Hope v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002). The nature of Fabiano’s First Amendment claim makes it extremely difficult for him to prove that this right was clearly established at the time his employment was terminated. “Because Pickering ’s constitutional rule turns upon a fact-intensive balancing test, it can rarely be considered ‘clearly established’” for purposes of qualified immunity. O’Connor, 994 F.2d at 917 n. 11 (quoting Bartlett v. Fisher, 972 F.2d 911, 916-17 (8th Cir.1992)(internal quotation marks omitted)); see also Frazier v. Bailey, 957 F.2d 920, 931 (1st Cir.1992) (“if the existence of a right or the degree of protection it warrants in a particular context is subject to a balancing test, the right can rarely be considered ‘clearly established,’ at least in the absence of closely corresponding factual or legal precedent”). The facts of this case do not present the sort of unusual circumstances that would support the finding of a clearly established right notwithstanding Pickering. As we noted supra, there is a very close question as to whether Fabiano’s allegations made out a constitutional claim. Fabiano’s supervisors had, on at least one formal occasion, stated a basis for distrusting his judgment, see Dirrane, 315 F.3d at 71, and were reasonably concerned about the potential conflict of interest (and the appearance of such conflict) that his Zoning Board lawsuit entailed. We cannot say that they knew or should have known that firing Fabiano under these circumstances was unlawful. Accordingly, we conclude that Joyce and Hopkins are entitled to qualified immunity on Fabiano’s First Amendment claims. We affirm the judgment of the district court as to all defendant-appellees. . After investigation, defendants learned that Fabiano had not become one of the record owners of the property until after the original zoning decision had been made, just prior to the running of the appeals period. . Fabiano's complaint in the Zoning Board action indicates that he and his mother" }, { "docid": "21739667", "title": "", "text": "qualified immunity. Significant to the court were the facts that (1) Dirrane was never fired; (2) his serious charges were “nestled in a morass of complaints,” and (3) his superiors has “some basis for distrusting Dirrane’s judgment.” Id. Based on this, the Court of Appeals determined that the trial judge was correct in concluding that “this is not a case in which a reasonable officer must have known that he was acting unconstitutionally.” Id. (emphasis in original). As in Dirrane, the record before this court simply does not present a case in which the individual defendants “must have known” that they were acting unconstitutionally. Like the plaintiffs complaints in Dirrane, Wagner’s more serious charges — racism and misappropriation of monies belonging to prisoners — were part of a substantial number of complaints, many involving matters of far less significance. Moreover, while the defendants did attempt to discipline Wagner, sometimes unsuccessfully, he was never terminated. Finally, the individual defendants, in disciplining Wagner, were acting pursuant to departmental regulations, codified by Wagner himself when he was chief, that on their face authorized the actions they took. Given all this, it is not necessary for this court to address the vexed issue of whether the defendants had “some basis” for doubting Wagner’s judgment. The facts of record in this case, even viewed in the light most favorable to the plaintiff, make it clear that reasonable officials in the defendants’ positions at the time could objectively have believed, albeit mistakenly, that their conduct did not violate the First Amendment. The court will allow the defendants’ motion for summary judgment regarding Count One with respect to defendants Cournoyer, Donoghue, and Szostkiewicz. The position of the City of Holyoke is different. Qualified immunity does not apply to municipalities. See Fletcher v. Town of Clinton, 196 F.3d 41, 55 (1st Cir.1999). A plaintiff seeking damages against a municipality under § 1983 must demonstrate the existence of “an unconstitutional policy or custom of the municipality itself.” Dirrane, 315 F.3d at 71. The evidence of such an unconstitutional policy or custom may easily be inferred from the record now" }, { "docid": "16418466", "title": "", "text": "unusual circumstances that would support the finding of a clearly established right notwithstanding Pickering. As we noted supra, there is a very close question as to whether Fabiano’s allegations made out a constitutional claim. Fabiano’s supervisors had, on at least one formal occasion, stated a basis for distrusting his judgment, see Dirrane, 315 F.3d at 71, and were reasonably concerned about the potential conflict of interest (and the appearance of such conflict) that his Zoning Board lawsuit entailed. We cannot say that they knew or should have known that firing Fabiano under these circumstances was unlawful. Accordingly, we conclude that Joyce and Hopkins are entitled to qualified immunity on Fabiano’s First Amendment claims. We affirm the judgment of the district court as to all defendant-appellees. . After investigation, defendants learned that Fabiano had not become one of the record owners of the property until after the original zoning decision had been made, just prior to the running of the appeals period. . Fabiano's complaint in the Zoning Board action indicates that he and his mother signed the document separately, each pro se. Fabi-ano did not list his Board of Bar Overseers number on his signature line. . In 1995, another Law Department attorney filed a pro se zoning appeal, but she apparently suffered no adverse employment consequences. Moreover, this attorney did not work for the Government Affairs Division and was not supervised by Hopkins, the policymaker at issue. Hence, this incident, taken together with Fabiano's termination, lacks sufficient commonality to form a pattern or practice." }, { "docid": "14023685", "title": "", "text": "damages based on their conduct unless a reasonable official would have known, in light of clearly established law, that he was acting unconstitutionally. See, e.g., Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); Wagner v. City of Holyoke, 404 F.3d 504, 509 (1st Cir.2005) (per curiam), petition for cert. filed, 74 U.S.L.W. 3121 (U.S. Aug. 17, 2005) (No. 05-234); Dirrane v. Brookline Police Dep’t, 315 F.3d 65, 69 (1st Cir.2002), On appeal, appellant continues to pursue such protection, emphasizing that immunity is the norm in public employee First Amendment cases because the constitutional question requires fact-intensive balancing-making it unlikely that a reasonable official “must have known that he was acting unconstitutionally,” Dirrane, 315 F.3d at 71 (emphasis in original). Although appellant is correct that the relevant qualified immunity case law is generally in his favor, his argument fails to appreciate that, because this case comes before us at such a preliminary stage, the immunity analysis is weighted toward the plaintiffs’ version of events, as depicted by the allegations in the complaint. See Pasdon, 417 F.3d at 226 (motion for judgment on the pleadings should not be granted “ ‘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 ”) (citation omitted). As we review below the legal frameworks that govern our decision, it will become apparent why appellant’s immunity defense must at this point be rejected. II. Discussion A. Qualified Immunity In deference to the sensitive discretionary judgments that government officials are obliged to make, qualified immunity safeguards even unconstitutional conduct if a reasonable officer at the time and under the circumstances surrounding the action could have viewed it as lawful. See Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986); Wagner, 404 F.3d at 508-09. The ultimate question before us, therefore, is not whether appellant Carter committed an unconstitutional act, but whether his disciplinary action against the plaintiffs is entitled to immunity from liability even if that action violated plaintiffs’\" First Amendment rights." }, { "docid": "21739665", "title": "", "text": "taken the same actions against Wagner for legitimate, independent reasons, even if Wagner had never spoken, is a question for the jury. The conclusion that plaintiffs have presented a valid constitutional claim does not, however, end the court’s analysis of the viability of Count One. The court must still address the argument presented by the individual defendants that, even if a jury might conclude that a constitutional violation occurred, they are nevertheless entitled to summary judgment on the ground of qualified immunity. The First Circuit’s recent discussion of qualified immunity in Dirrane v. Brookline Police Dep’t, 315 F.3d 65 (1st Cir.2002), has heavily underlined the importance of careful analysis in this area. As the Court of Appeals noted in Dirrane: Under section 1983, a government employee is immune to damages where a reasonable official could believe (the test is objective), albeit mistakenly, that his conduct did not violate the First amendment. Harlow v. Fitzgerald, 457 U.S. 800, 818-19, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Immunity exists even where the abstract “right” invoked by the plaintiff is well-established, so long as the official could reasonably have believed “on the facts” that no violation existed. See Suboh v. Dist. Attorney’s Office, 298 F.3d 81, 90 (1st Cir.2002); Swain v. Spinney, 117 F.3d 1, 9-10 (1st Cir.1997). Id. at 69 Dirrane concerned a police officer who brought frequent complaints to his supervisors about an array of alleged abuses by other police officers. His complaints ranged from relatively minor (e.g., playing cards during work hours) to more serious (e.g., falsifying fingerprint reports and destroying fingerprint evidence). After roughly five years of bringing complaints, the plaintiff was transferred to a different division within the department. Soon thereafter, the plaintiff filed a § 1983 suit against the police department and his supervisors claiming that the transfer constituted retaliation for protected speech. The court in Dirrane, while viewing the evidence as somewhat doubtful, did find that the plaintiff had made out a claim of a “colorable First Amendment violation.” Id. at 70. Nevertheless, the court concluded that the individual defendants were entitled to the protection of" }, { "docid": "21739668", "title": "", "text": "that on their face authorized the actions they took. Given all this, it is not necessary for this court to address the vexed issue of whether the defendants had “some basis” for doubting Wagner’s judgment. The facts of record in this case, even viewed in the light most favorable to the plaintiff, make it clear that reasonable officials in the defendants’ positions at the time could objectively have believed, albeit mistakenly, that their conduct did not violate the First Amendment. The court will allow the defendants’ motion for summary judgment regarding Count One with respect to defendants Cournoyer, Donoghue, and Szostkiewicz. The position of the City of Holyoke is different. Qualified immunity does not apply to municipalities. See Fletcher v. Town of Clinton, 196 F.3d 41, 55 (1st Cir.1999). A plaintiff seeking damages against a municipality under § 1983 must demonstrate the existence of “an unconstitutional policy or custom of the municipality itself.” Dirrane, 315 F.3d at 71. The evidence of such an unconstitutional policy or custom may easily be inferred from the record now before the court. Indeed, the police department’s rules and regulations, some of which have already been found to be unconstitutional by this court as a preliminary matter, facilitated and encouraged the unconstitutional behavior by the City’s officials. Moreover, the record contains substantial evidence to suggest that retaliation against employees who offered serious criticism of the police department was a longstanding custom on the part of responsible Holyoke officials at the time. The motion for summary judgment with regard to the City on Count One will therefore be denied. With respect to defendant Arthur Ther-rien, the record is barren of any evidence to support a § 1983 claim. The only conduct on his part that could conceivably constitute a violation, in some way, of Wagner’s rights, were the interdepartmental complaints he filed against Wagner (1) for remarks made about Therrien in Wagner’s MCAD and MLRC complaints and statements to the press and (2) in response to the Egan episode. Yet Therrien’s complaints, which he was permitted to file, cannot be construed to implicate him as a" }, { "docid": "22356180", "title": "", "text": "third party upon whose cooperation the employer depended could refuse to cooperate with the employer unless a particular employee were fired, demoted, or transferred. By withholding cooperation, the third party could effectively create the very workplace disruption that, under the Pickering approach, could be used to justify the limitation of First Amendment rights.”); cf. Hughes v. Whitmer, 714 F.2d 1407, 1434 (8th Cir.1983) (McMillian, J., dissenting) (\"It would be anserine to permit the government to discipline its employees because of disruption caused by the government's repressive reaction to the employee’s first amendment activities.”). . In this regard, it should be remembered that the record does not contain any affidavits or depositions from trainees who stated that they lost confidence in the instructors. Kinney and Hall stated that their relationships with students were not adversely affected. . The so-called \"code of silence,” as we have explained in previous cases, is the informal rule according to which one police officer does not report on or testify against another police officer, regardless of the nature of the accused officer's conduct. See, e.g., Snyder v. Trepagnier, 142 F.3d 791, 797 n. 6 (5th Cir.1998) (citing an expert witness). The Police Officials have asserted in their briefs that Kinney and Hall admitted that the Police Officials had genuine and reasonable concerns about conflicts of interest. We do not believe that the Police Officials’ reading of the record is warranted. In their depositions, Kinney and Hall admitted that reasonable people could be concerned about conflicts of interest when an instructor testifies against his own students. They deny, however, that reasonable people would be concerned about conflicts of interest in this case, and they deny that the Police Officials held genuine concerns about conflicts. . The Pickering balance takes account of legitimate interests only. See Umbehr, 518 U.S. at 675, 116 S.Ct. 2342 (referring to \"legitimate countervailing government interests”) (emphasis added); Wilson v. UT Health Ctr., 973 F.2d 1263, 1270 (5th Cir.1992) (\"Though the speech of public employees may be of public concern, that speech still does not enjoy First Amendment protection if legitimate government interests in" }, { "docid": "21739664", "title": "", "text": "the defendants’ conclusory say-so, no evidence of record at this point suggests that Wagner’s statements significantly undermined the operations of the workplace. Indeed it is hard to imagine that (beyond annoying the persons who were objects of his criticism) the complaints of one officer in a relatively large police force would either disturb the delicate balance of the workplace or significantly damage employee morale. See Biggs v. Village of Dupo, 892 F.2d 1298, 1303-04 (7th Cir.1990) (discharge of police officer after critical interview in paper unlawful where interview caused no disruption in police force). Moving on to the third prong of the Pickering analysis, the court’s analysis may be brief. On the record summarized above, a reasonable jury might conclude— drawing all inferences in the plaintiffs’ favor — that the adverse employment actions by the defendants were substantially motivated by Wagner’s protected speech. The disputed facts require the court to give responsibility for resolving this issue to a jury. Similarly on the fourth prong, the Mt. Healthy issue, the question whether the defendants would have taken the same actions against Wagner for legitimate, independent reasons, even if Wagner had never spoken, is a question for the jury. The conclusion that plaintiffs have presented a valid constitutional claim does not, however, end the court’s analysis of the viability of Count One. The court must still address the argument presented by the individual defendants that, even if a jury might conclude that a constitutional violation occurred, they are nevertheless entitled to summary judgment on the ground of qualified immunity. The First Circuit’s recent discussion of qualified immunity in Dirrane v. Brookline Police Dep’t, 315 F.3d 65 (1st Cir.2002), has heavily underlined the importance of careful analysis in this area. As the Court of Appeals noted in Dirrane: Under section 1983, a government employee is immune to damages where a reasonable official could believe (the test is objective), albeit mistakenly, that his conduct did not violate the First amendment. Harlow v. Fitzgerald, 457 U.S. 800, 818-19, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Immunity exists even where the abstract “right” invoked by the" }, { "docid": "16418463", "title": "", "text": "matter affecting him. We do not mean to suggest that Fabi-ano’s conduct was proper or created no conflict of interest with his employer. Indeed, Fabiano’s conduct appears to implicate the Massachusetts Rules of Professional Conduct, see Supreme Judicial Court Rule 3:07, at least to the extent that it may have created an appearance of impropriety. Nor can we condone the bullheaded manner in which Fabiano defied the stated and obvious concerns of his superiors. He proceeded with his pro se filing with no apparent regard for their concerns. Nonetheless, reluctantly we conclude that under the specific and unusual facts of this case, the City’s interest in an efficient workplace did not trump Fabiano’s First Amendment right to pursue his zoning suit. c. Causation In the third and final step in establishing a First Amendment violation, Fabiano must show that his protected speech was a substantial or motivating factor in the City’s decision to fire him. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977); Mullin, 284 F.3d at 38. This requirement is satisfied. Hopkins was holding a copy of the Zoning Board complaint in her hand when she fired Fabiano, and in her affidavit below she cited the lawsuit as one of several reasons underlying the termination (although she took pains to emphasize that the method by which Fabiano sued the City, not the suit itself, was the cause). It may well be that a factfinder would determine that Fabiano’s deficiencies in professional judgment, not the lawsuit itself, was the primary cause of the firing. But, taking all inferences in favor of Fabiano, as we are bound to do, we conclude that he has adduced sufficient evidence of causation for purposes of our review. 2. “Clearly established” right Having concluded that Fabiano’s allegations arguably suffice to state a First Amendment claim, we proceed to the second step of the qualified immunity analysis and consider whether Fabiano’s First Amendment right was “clearly established.” Saucier; 533 U.S. at 201-02, 121 S.Ct. 2151. The purpose of this requirement is “to" }, { "docid": "14023697", "title": "", "text": "the constitutional right at issue involves weighing various factors. We and other circuits have noted that the Pickering balancing is “ ‘subtle, yet difficult to apply, and not yet well defined,’ ” Pike v. Osborne, 301 F.3d 182, 185 (4th Cir.2002) (citation omitted), and that, consequently, only in the extraordinary case will it have been clearly established that a public employee’s speech merited constitutional protection. See, e.g., Fabiano, 352 F.3d at 457; Chesser v. Sparks, 248 F.3d 1117, 1124 (llth Cir.2001); Bartlett v. Fisher, 972 F.2d 911, 916-17 (8th Cir.1992) (citing similar cases); O’Connor, 994 F.2d at 917 n. 11. Appellant claims that this cannot be the rare case because the complaint depicts disciplinary conduct imposed for a mixture of protected and unprotected speech, a combination that would engender uncertainty in any attempt to balance interests. In support, he cites our decision in Dir-rane, 315 F.3d at 70-71, and asserts that it similarly involved “arguably protected statements ‘nestled in a morass of complaints’ that were not protected speech.” In Dirrane, the plaintiff had complained over a number of years about abuses in the Brookline police force, ranging from minor issues to serious charges of falsification and destruction of evidence. He alleged that his supervisors had failed to seriously investigate his complaints and transferred him in retaliation for making them. We held that the plaintiff had made out “a colorable First Amendment violation,” id. at 70, but because his years of petty complaints gave his superiors a basis for distrusting his judgment — and in the absence of equivalent precedent — we found the individual defendants entitled to qualified immunity. See id. at 71. Although Dirrane also presented an appeal of a motion to dismiss, it provides limited support for appellant’s immunity request. We described the complaint there as “very lengthy,” id. at 70, and we noted allegations detailing the statements that plaintiff made, to whom, and, at least to some extent, their timing. We have none of those particulars here. Appellant could have, but did not, move for a more definite statement. See Fed.R.Civ.P. 12(e); Educadores Puertorriqueños en Acción v." }, { "docid": "13767541", "title": "", "text": "a risk of further embarrassing an office trying to regain its reputation for professionalism and confidence. See Flomenbaum v. Commonwealth, 451 Mass. 740, 889 N.E.2d 423, 428-30 (2008) (upholding “for cause” removal of Chief Medical Examiner on evidence of incidents which in the view of the EOPS Secretary “had damaged the integrity and reputation of [OCME], and which could have been avoided”). Further, Cronin could reasonably conclude that terminating Dr. Philip’s contract would curtail the potential for further harm to the office. “Even if this reasoning were mistaken, it would not have been egregiously so and, accordingly, qualified immunity is available.” Wagner v. City of Holyoke, 404 F.3d 504, 509 (1st Cir.2005); see also id. (“Wagner’s broad range of complaints (some consisting of unprotected and antagonistic speech), coupled with his disregard of confidentiality protocols and his disobedience in following the department’s chain of command, would have permitted a reasonable superior officer to believe that he was entitled to discipline Wagner regardless of the content of his speech, consistent with the protections of the first amendment.”); Dirrane, 315 F.3d at 71 (reasonable police officer would not necessarily have known he was acting unconstitutionally in transferring officer who made repeated and disruptive allegations of wrongdoing against his fellow officers, submitted a “morass” of complaints, and had shown poor judgment). III. On this basis, the judgment is affirmed. . It appears that although defendant claimed qualified immunity as an affirmative defense in his answer to plaintiff's complaint, he made no other effort to get a ruling on his qualified immunity before trial. Cronin's remaining arguments before the district court pertained to two state law claims brought by Dr. Philip. Dr. Philip does not argue on appeal that there was any error in the dismissal of those claims. . Dr. Philip also relies on a supposed inconsistency between Cronin's testimony about why Dr. Philip was fired and the reasons stated in the letter of termination. We see no inconsistency. . We also bypass here defendant's Mt. Healthy defense, raised in his memorandum before the district court. See Mt. Healthy City Sch. Dist. Bd. of" } ]

[ { "docid": "13156337", "title": "", "text": "by the NLRB decision. On April 6, 1984, the district court granted the SIU’s motion for summary judgment on the ground that Pantex was also collaterally estopped by the NLRB decision. The district court then entered final judgment in this action. Pantex appeals from the judgment dismissing its claims. The SIU does not appeal. I. Issues of fact litigated and decided in a prior administrative proceeding may have collateral estoppel effect on issues of fact presented in a subsequent judicial action. The parties agree that when an administrative body has acted in a judicial capacity and has issued a valid and final decision on disputed issues of fact properly before it, collateral estoppel will apply to preclude relitigation of fact issues only if: (1) there is identity of the parties or their privies; (2) there is identity of issues; (3) the parties had an adequate opportunity to litigate the issues in the administrative proceeding; (4) the issues to be estopped were actually litigated and determined in the administrative proceeding; and (5) the findings on the issues to be estopped were necessary to the administrative decision. United States v. Utah Construction and Mining Co., 384 U.S. 394, 421-422, 86 S.Ct. 1545, 1559-1560, 16 L.Ed.2d 642 (1966); Garner v. Giarrusso, 571 F.2d 1330, 1335-36 (5th Cir.1978). See also 4 K.C. Davis, Administrative Law Treatise, Ch. 21 (2d ed. 1983). Pantex contends that the NLRB decision does not estop any of the fact issues in this action because the liability of the SIU and Glidewell for the alleged torts was not at issue, was not litigated, and was not necessary to the decision in the NLRB case. We agree with Pantex that the district court erred in holding that Pantex’s tort claims are completely barred by the doctrine of collateral estoppel. The NLRB case concerned charges that Pantex had committed unfair labor practices; the conduct of Glidewell and the SIU simply was not at issue in that proceeding. To the extent that Pantex’s claims in this action focus on the conduct of the SIU and Glide-well, there is no identity of issues and" } ]

[ { "docid": "1450037", "title": "", "text": "U.S. 279, 286, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). Furthermore, “exceptions to discharge are to be narrowly construed, and because of the fresh start objectives of bankruptcy, doubt is to be resolved in the debtor’s favor.” Cundy v. Woods (In re Woods), 284 B.R. 282, 288 (D.Colo.2001) (citing Bélico First Federal Credit Union v. Kaspar (In re Kaspar), 125 F.3d 1358, 1361 (10th Cir.1997)). B. Collateral Estoppel The preclusive effect given in federal court to a prior federal decision is subject to federal law. Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 507, 121 S.Ct. 1021, 1027, 149 L.Ed.2d 32 (2001). Administrative proceedings are entitled to collateral estoppel effect. Astoria Federal Sav. and Loan Ass’n v. Solimino, 501 U.S. 104, 107, 111 S.Ct. 2166, 2169, 115 L.Ed.2d 96 (1991). Pursuant to Dodge v. Cotter Corp., 203 F.3d 1190 (10th Cir.2000), collateral estoppel applies to prevent relitigation of the issues decided in a federal court where: 1. the issue previously decided is identical with the one presented in the action in question, 2. the prior action has been finally adjudicated on the merits, 3. the party against whom the doctrine is invoked was a party, or in privity with a party, to the prior adjudication, and 4. the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action. Id. at 1197-98. There is no dispute that Gordon is the same party as the party in the Prior Action and that, on its face, the Judgment, and the antecedent rulings show that the Prior Action was finally adjudicated on the merits. The Court will address Gordon’s dispute that the Judgment relied upon by the N.L.R.B. is a valid and final judgment. Since the Judgment at issue was entered in the absence of Gordon’s active participation in the proceedings after the Third Ruling was entered, the Court must also determine whether Gordon received a full and fair opportunity to litigate the issues in that case. Finally, the Court must determine whether the determination in the Prior Action that Gordon" }, { "docid": "8058017", "title": "", "text": "claim, Nationwide must show that there was “a prior judgment rendered by a court of competent jurisdiction, that prior judgment was final and on the merits, and it involved the same cause of action and the same parties or privies.” See Wedow v. City of Kansas City, Mo., 442 F.3d 661, 669 (8th Cir.2006). An agency determination is entitled to preclusive effect where: (1) the agency was acting in a judicial capacity; (2) the agency resolved disputed acts properly before it; and (3) the parties had “an adequate opportunity to litigate.... ” United States v. Utah Constr. & Mining Co., 384 U.S. 394, 422, 86 S.Ct. 1545, 16 L.Ed.2d 642 (1966); see also Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 107, 111 S.Ct. 2166, 115 L.Ed.2d 96 (1991) (“We have long favored application of the common-law doctrines of collateral estoppel (as to issues) and res judicata (as to claims) to those determinations of administrative bodies that have attained finality.”). Therefore, the Court must determine whether or not the EEOC’s proceedings satisfied these three requirements — i.e., whether the EEOC proceedings constituted an “adjudication” of Ray’s claims. See Def.’s Br. at 12-14; Pl.’s Br. in Resistance to Def.’s Mot. for Summ. J. (hereinafter “PL’s Br.”) at 5-6 (Clerk’s No. 9). The parties dispute, in particular, the first and third factors — namely, whether the EEOC was “acting in a judicial capacity” when it issued its “no reasonable cause” determination and whether Ray had “an adequate opportunity to litigate” his claims before the EEOC. See Utah Constr., 384 U.S. at 422, 86 S.Ct. 1545. Nationwide suggests that the EEOC acted in a judicial capacity in this case and, thus, that the EEOC’s “no reasonable cause” determination constituted a “final adjudicatory decision[ ].” See Def.’s Br. at 10-11. However, the EEOC “cannot adjudicate claims.... ” Alexander v. Gardner-Denver Co., 415 U.S. 36, 44, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974); 29 U.S.C. § 626(a) (“The Equal Employment Opportunity Commission shall have the power to make investigations and require the keeping of records necessary or appropriate for the administration of" }, { "docid": "5620924", "title": "", "text": "apply to unreviewed state administrative agency decisions is an unsettled area of the law. It is clear enough that when Congress has indicated that agency factual findings are not conclusive, as in the instances of Title VII, Elliott, 478 U.S. at 795-96, 106 S.Ct. at 3224-25, and the Age Discrimination Act, Astoria Fed. Sav. & Loan Ass’n v. Solimino, — U.S. -, ---, 111 S.Ct. 2166, 2172-73, 115 L.Ed.2d 96 (1991), issue preclusion may not be based on unreviewed administrative decisions. As Elliott reiterated, however, no such congressional prohibition, express or implied, applies to section 1983 cases. 478 U.S. at 797, 106 S.Ct. at 3225. Therefore, issue preclusion is applicable to factual findings to the same extent that it would be invoked by state courts. Elliott was quite specific, however, in referring consistently throughout the opinion to administrative or agency “factfinding.” Astoria was less specific in stating that the repose resulting from claim and issue preclusion is desirable when “a court has resolved an issue, and should do so equally when the issue has been decided by an administrative agency, be it state or federal, see University of Tennessee v. Elliott, 478 U.S. 788, 798, 106 S.Ct. 3220, 3225-26, 92 L.Ed.2d 635 (1986), which acts in a judicial capacity.” — U.S. at-, 111 S.Ct. at 2169. Astoria, however, went on to say: “Although administrative estoppel is favored as a matter of general policy, its suitability may vary according to the specific context of the rights at stake, the power of the agency, and the relative adequacy of agency procedures.” Id. — U.S. at -, 111 S.Ct. at 2170. Based on the record here, we assume that the Borough Civil Service Commission acting in a judicial capacity, gave plaintiff ample opportunity to present his views and to cross-examine the witnesses against him. He had the requisite “full and fair” hearing. See Elliott, 478 U.S. at 797-99, 106 S.Ct. at 3225-26; Gregory, 843 F.2d at 121. The factual findings are clear enough and would be effective for purposes of issue preclusion. It is the legal issue, the Commission’s constitutional ruling, that we" }, { "docid": "7989577", "title": "", "text": "(5th Cir.1993); see also Dye v. U.S. Farm Servs. Agency, 129 Fed.Appx. 320, 322 (7th Cir.2005) (“Res judicata bars suits where there is a final judgment on the merits; an identity of the issues of the lawsuit; and an identity of the parties or their privies.”). Res judicata (as well as the related principle of collateral estoppel) applies to administrative proceedings such as the adjudication of petitions for relief in immigration courts. See Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 107-08, 111 S.Ct. 2166, 115 L.Ed.2d 96 (1991); Santana-Albarran v. Ashcroft, 393 F.3d 699, 704 (6th Cir.2005); Johnson v. Ashcroft, 378 F.3d 164, 172 n. 10 (2d Cir.2004); Matter of Barragan-Garibay, 15 I. & N. Dec. 77, 78-79 (BIA 1974). Indeed, “[w]hen an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, the courts have not hesitated to apply res judicata to enforce repose.” Astoria Fed. Sav. & Loan Ass’n, 501 U.S. at 107, 111 S.Ct. 2166 (quoting United States v. Utah Constr. & Mining Co., 384 U.S. 394, 422, 86 S.Ct. 1545, 16 L.Ed.2d 642 (1966)). Although res judicata does apply to immigration proceedings, the concept has no role to play in any proceeding until a final judgment has been reached on an issue. Medina, 993 F.2d at 503; see also Tittjung v. Reno, 199 F.3d 393, 397 n. 2 (7th Cir.1999). Despite the myriad of problems that exist with Hamdan’s res judicata argument, see supra footnote 15, we need not resolve the issue of whether the IJ violated the principle of res judicata. Even if we were to determine that the IJ’s decision on Hamdan’s asylum application was final and, going one step further, that the judge had violated the principle of res judicata by revisiting Hamdan’s asylum application and questioning Hamdan’s credibility during the adjustment of status hearing, the record reveals that the IJ articulated sufficient reasons apart from the suspect nature of Hamdan’s asylum application to justify denying him adjustment of status. We have" }, { "docid": "22993489", "title": "", "text": "effect in this § 1983 action; and, on the other, as an executive board, which has the final decision-making power with respect to all personnel matters in Bexar County. In his motion for summary judgment, Connell urged the court to give issue or claim preclusive effect to the commission’s finding that Hitt made a credible bomb threat that warranted dismissal. As Connell pointed out, the Supreme Court has “long favored application of the common-law doctrines of collateral estoppel (as to issues) and res judicata (as to claims) to those determinations of administrative bodies that have attained finality.” Astoria Fed. Sav. & Loan Ass’n. v. Solimino, 501 U.S. 104, 107, 111 S.Ct. 2166, 2169, 115 L.Ed.2d 96 (1991). Further, federal courts must ordinarily give a state agency’s decision “the same preclusive effect to which it would be entitled in the state’s courts.” Univ. of Tennessee v. Elliott, 478 U.S. 788, 799, 106 S.Ct. 3220, 3226, 92 L.Ed.2d 635 (1986). This court has implied, however, that federal rules of claim preclusion may apply to determine whether § 1983 claims are barred from litigation in federal court by the outcome of prior unreviewed state administrative adjudications. Frazier v. King, 873 F.2d 820, 823-25 (5th Cir.1989). The magistrate judge found, in a ruling adopted by the district court, that the civil service commission’s decision was entitled neither to claim nor issue preclusive effect on Hitt’s subsequent § 1983 action. Whether those conclusions were correct or not is of no moment, since Connell has not appealed them. Instead, the argument Connell ultimately adopted at trial and now pursues on appeal is that the Bexar County Civil Service Commission — rather than Constable Connell — is the final decision-maker with respect to employment decisions in the constables’ offices. It is beyond dispute that the commissioners conducted an independent inquiry into Hitt’s discharge and were not motivated by any improper motive. Consequently, if the commission is the final decision-maker, then the causal connection between Hitt’s constitutionally-protected activity and the adverse employment action is broken, and Connell may not be held liable. See Mato v. Baldauf, 267 F.3d" }, { "docid": "2080689", "title": "", "text": "court, citing a prior decision that found collateral estoppel principles inapplicable to findings by federal agencies in the Title VII context. Id. at 795-96, 106 S.Ct. 3220 (citing Chandler v. Roudebush, 425 U.S. 840, 96 S.Ct. 1949, 48 L.Ed.2d 416 (1976)). Based on similar reasoning, the Supreme Court later held collateral estoppel principles inapplicable to claims brought under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. See Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 111 S.Ct. 2166, 115 L.Ed.2d 96 (1991). The Court found that although Congress is presumed to act against the background of common-law adjudicatory principles like collateral estop-pel, it can overcome that presumption by either expressly or impliedly evincing its intent to the contrary. Id. at 108-10, 111 S.Ct. 2166. Just as it had done in Elliott, the Court examined the statute and found that various provisions demonstrated Congress’ implicit assumption that unreviewed state agency determinations would not preclude ADEA plaintiffs from seeking relief in federal court. See id. at 110-14, 111 S.Ct. 2166. Although the Supreme Court has held that the doctrine of collateral estoppel does not apply to claims under Title VII and the ADEA, it has never decided the status of collateral estoppel in the context of the ADA. However, using Elliott and Solimino as a guide, we find that common law collateral estoppel principles do not apply to claims brought under the ADA because Congress has demonstrated its intent that unreviewed state administrative findings not have preclusive effect in this statutory context. The analysis is straightforward because the ADA explicitly incorporates all of the enforcement powers, remedies, and procedures of Title VII. See 42 U.S.C. § 12117. In Elliott, the Supreme Court focused on the fact that the EEOC is statutorily required to give “substantial weight” to the findings of state authorities, strongly implying that the EEOC and the federal courts are not required to give preclusive effect to those findings. See Elliott, 478 U.S. at 795, 106 S.Ct. 3220. The ADA specifically incorporates this very provision. See 42 U.S.C. § 12117 (stating that" }, { "docid": "22309795", "title": "", "text": "No. 337-TA-315, USITC Pub. No. 2574 (Nov. 1992), aff'd, Texas Instruments Inc. v. United States Int’l Trade Comm’n, 988 F.2d 1165, 26 USPQ2d 1018 (Fed.Cir.1993). In support, TI contends that preclusive effect is properly given to determinations made in a federal agency’s adjudicatory capacity. TI also asserts that the district court erred in failing to permit the jury to be informed of the prior ITC holding. The doctrine of issue preclusion (or collateral estoppel) has been defined to mean that “[w]hen 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 a different claim.” Restatement (Second) of Judgments § 27 (1982). The purpose of the doctrine is to “relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resources, and, by preventing inconsistent decisions, encourage reliance on adjudication.” Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 415, 66 L.Ed.2d 308 (1980). The decision of an administrative agency may be given preclusive effect in a federal court when, as here, the agency acted in a judicial capacity. See University of Tennessee v. Elliott, 478 U.S. 788, 797-98, 106 S.Ct. 3220, 3225-26, 92 L.Ed.2d 635 (1986); United States v. Utah Constr. & Mining Co., 384 U.S. 394, 422, 86 S.Ct. 1545, 1560, 16 L.Ed.2d 642 (1966). However, an administrative agency decision, issued pursuant to a statute, cannot have preclusive effect when Congress, either expressly or impliedly, indicated that it intended otherwise. Astoria Fed: Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 110, 111 S.Ct. 2166, 2170-71, 115 L.Ed.2d 96 (1991). Here, the administrative proceedings were commenced before the ITC under section 337, as amended, of the Tariff Act of 1930. 19 U.S.C. § 1337 (1994). In 1974, Congress passed the Trade Reform Act of 1974, amending the Tariff Act of 1930 to allow respondents in ITC proceedings to plead, and the ITC to consider, all legal and equitable defenses, including patent invalidity and unenforceablility. See Lannom" }, { "docid": "2080688", "title": "", "text": "to the general application of collateral estoppel to state agency decisions. In claims brought under Title VII of the 1964 Civil Rights Act, the Court held that Congress’ detailed remedial scheme precluded the use of collateral es-toppel. See id. at 795-96, 106 S.Ct. 3220. Because the Court’s formulation of the general rule was based on federal common law, it held that Congress could displace the doctrine in certain statutory contexts if it intended that collateral estoppel should not apply. Id. at 795, 106 S.Ct. 3220. Such was the case with Title VII. The Court considered the effect of one of Title VU’s provisions which required the EEOC to give “substantial weight” to the findings of state or local administrative agencies. Id. (citing 42 U.S.C. § 2000e-5(b)). The Court found that “it would make little sense for Congress to write such a provision if state agency findings were entitled to preclusive effect in Title VII actions in federal court.” Id. The Court further recognized Congress’ intent that Title VII plaintiffs receive de novo trials in federal court, citing a prior decision that found collateral estoppel principles inapplicable to findings by federal agencies in the Title VII context. Id. at 795-96, 106 S.Ct. 3220 (citing Chandler v. Roudebush, 425 U.S. 840, 96 S.Ct. 1949, 48 L.Ed.2d 416 (1976)). Based on similar reasoning, the Supreme Court later held collateral estoppel principles inapplicable to claims brought under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. See Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 111 S.Ct. 2166, 115 L.Ed.2d 96 (1991). The Court found that although Congress is presumed to act against the background of common-law adjudicatory principles like collateral estop-pel, it can overcome that presumption by either expressly or impliedly evincing its intent to the contrary. Id. at 108-10, 111 S.Ct. 2166. Just as it had done in Elliott, the Court examined the statute and found that various provisions demonstrated Congress’ implicit assumption that unreviewed state agency determinations would not preclude ADEA plaintiffs from seeking relief in federal court. See id. at 110-14, 111 S.Ct." }, { "docid": "23331439", "title": "", "text": "See Dutton v. Wolpoff and Abramson, 5 F.3d 649, 653 (3d Cir.1993); Powell v. J.T. Posey Co., 766 F.2d 131, 133-34 (3d Cir.1985). III. DISCUSSION ■ A. ISSUE PRECLUSION The district court granted Swineford’s initial summary judgment motion on the grounds the UCBR referee’s decision had preclusive effect in Swineford’s civil rights suit. The court later vacated its ruling. Swineford claims the district court was correct the first time, and issue preclusion prevents the defendants from rebutting her allegation that defendants fired her because of her protected speech. 1. General Principles Issue preclusion, also known as collateral estoppel, bars relitigation of issues adjudicated in a prior action. See Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064, 1074 (3d Cir.1990). By contrast, claim preclusion, with which it is often confused, “gives dispos-itive effect to a prior judgment if the particular issue, albeit not litigated in the prior 'action, could have been raised.” Id. at 1070. Traditionally, the Supreme Court has favored application of common-law preclusion doctrines “to those determinations of administrative bodies that have attained finality.” Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 111 S.Ct. 2166, 2169, 115 L.Ed.2d 96 (1991). As the Court stated: “When an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, the courts have not hesitated to apply res judicata to enforce repose.” Id. (quoting United States v. Utah Constr. & Mining Co., 384 U.S. 394, 422, 86 S.Ct. 1545, 1560, 16 L.Ed.2d 642 (1966)). The policy behind the rule is that “a losing litigant deserves no rematch after a defeat fairly suffered, in adversarial proceedings, on an issue identical in substance to the one he subsequently seeks to raise.” Id. Federal courts must give a state court judgment the same preclusive effect as would the courts of that state. See 28 U.S.C. § 1738 (1988); see also Migra v. Warren City School Dist. Bd. of Education, 465 U.S. 75, 81, 104 S.Ct. 892, 896, 79 L.Ed.2d 56 (1984) (teacher’s state court action" }, { "docid": "21965114", "title": "", "text": "that authority, the Plaintiffs TILA claim is not barred under principles of claim preclusion. Indeed, this Court has previously addressed that very question. See In re Apaydin, 201 B.R. 716, 722 (Bankr.E.D.Pa.1996) (holding that TILA claims not raised in response to foreclosure may be raised in subsequent litigation) Likewise, the claims in Counts III and IV are unaffected by the prior judgment. Those claims, too, are personal in nature: the RESPA claim is asserted against the loan servicer while the claims in Count IV are brought against the mortgage broker. Neither could have been brought in response to a mortgage foreclosure. For that reason, the res judicata arguments of Deutsche, Chase, and New World are not persuasive. Collateral Estoppel The final preclusion argument made by all three movants is collateral estoppel, or issue preclusion. This doctrine “prevents the relitigation of issues that have been decided in a previous action.” Hawksbill Sea Turtle v. Federal Emergency Management Agency, 126 F.3d 461, 474 (3d Cir.1997). See also Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979) (“Issue preclusion ensures that ‘once an issue is actually and necessarily determined by a court of competent jurisdiction, that determination is conclusive in subsequent suits based on a different cause of action involving a party to the prior litigation.’ ”). “Issue preclusion is based upon the policy that ‘a losing litigant deserves no rematch after a defeat fairly suffered, in adversarial proceedings, on an issue identical in substance to the one he subsequently seeks to raise.’ ” Dici v. Commonwealth of Pennsylvania, 91 F.3d 542, 547 (3d Cir.1996) (quoting Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 107, 111 S.Ct. 2166, 115 L.Ed.2d 96 (1991)). See also Burlington N.R.R. Co. v. Hyundai Merchant Marine Co., 63 F.3d 1227, 1231 (3d Cir.1995) (“The doctrine [of issue preclusion] derives from the simple principle that later courts should honor the first actual decision of a matter that has been actually litigated.”). As the Third Circuit explained “[t]he doctrine of issue preclusion reduces the costs of multiple lawsuits, facilitates judicial consistency," }, { "docid": "570639", "title": "", "text": "citation omitted). The United States Supreme Court has “long favored application of the common-law doctrines of collateral estoppel (as to issues) and res judicata (as to claims) to those determinations of administrative bodies that have attained finality.” Astoria Fed. Sav. & Loan Assoc. v. Solimino, 501 U.S. 104, 107, 111 S.Ct. 2166, 115 L.Ed.2d 96 (1991). Some federal statutory schemes abrogate this federal common-law rule. See id. at 110, 111 S.Ct. 2166 (ADEA); Elliott, 478 U.S. at 799, 106 S.Ct. 3220 (Title VII). The Wyoming Supreme Court has stated that four factors should be analyzed in this inquiry: (1) whether the issue decided in the pri- or adjudication was identical with the issue presented in the present action; (2) whether the prior adjudication resulted in a judgment on the merits; (3) whether the party against whom collateral estoppel is asserted was a party or in privity with a party to the prior adjudication; and (4) whether the party against whom collateral estoppel is asserted had a full and fair opportunity to litigate the issue in the prior proceeding. Kahrs, 901 P.2d at 406. All four of those requirements are met here: the issue is identical, the hearing officer issued a judgment on the merits of the factual claims, Ms. Brockman was a party, and she was given a full and fair opportunity to litigate her claim. Addressing similar concerns, the United States Supreme Court has also held that an administrative decision must satisfy three fairness requirements: 1) the agency must have been acting in a judicial capacity; 2) it must be resolving issues that are properly before it; and 3) the parties must have an adequate opportunity to litigate those issues before the agency. See United States v. Utah Const. & Mining Co., 384 U.S. 394, 422, 86 S.Ct. 1545, 16 L.Ed.2d 642 (1966). The district court found that “the hearing examiner engaged in a thorough and far reaching examination of Brockman’s claims arising from her discharge.” Aplt’s App. at 629. Ms. Brockman was represented by counsel at the administrative hearing, she raised numerous issues, and the agency provided an" }, { "docid": "12293425", "title": "", "text": "addressed a related question — whether an unreviewed state agency’s factfindings are entitled to issue preclusive effect in a subsequent § 1983 suit. In that decision, the Court noted that although § 1738 was not controlling, “because § 1738 antedates the development of administrative agencies it clearly does not represent a congressional determination that the decisions of state administrative agencies should not be given preclusive effect.” Id. at 795, 106 S.Ct. at 3224. “ ‘Moreover, the legislative history of § 1983 does not in any clear way suggest that Congress intended to repeal or restrict the traditional doctrines of preclusion.’ ” Id. at 797, 106 S.Ct. at 3225 (quoting Allen, 449 U.S. at 98, 101 S.Ct. at 417). Nor, according to Elliott, is there any indication that Congress did not intend for these traditional principles to be extended to later devélop-ments such as administrative agencies. Id. See also Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 107, 111 S.Ct. 2166, 2169, 115 L.Ed.2d 96 (1991) (“We have long favored application of the common-law doctrines of collateral estoppel (as to issues) and res judicata (as to claims) to those determinations of administrative bodies that have attained finality.”). The Court then held that the traditional principles of issue preclusion required federal courts to give a state administrative agency’s factfinding the same issue preclusive effect it would receive in the state’s own courts. Elliott, 478 U.S. at 799, 106 S.Ct. at 3226. This raises the question whether traditional preclusion principles require a similar rule for claim preclusion. Elliott identified as a principal concern of issue preclusion (or collateral estoppel) that of enforcing repose, which includes both the idea of “avoiding the cost and vexation of repetitive litigation” and “conserving judicial resources,” and concluded that a rule of issue preclusion furthered both policies. Id. at 798-99, 106 S.Ct. at 3226-27. The Court then observed that the principles embodied by the Full Faith and Credit Clause— serving the value of federalism and “act[ing] as a nationally unifying force” by preventing conflicting results — supported a federal rule requiring federal courts to apply" }, { "docid": "23180358", "title": "", "text": "have attained finality.” Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 107, 111 S.Ct. 2166, 115 L.Ed.2d 96 (1991). “ ‘When an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, the courts have not hesitated to apply res judicata to enforce repose.’ ” Id. (quoting United States v. Utah Constr. & Mining Co., 384 U.S. 394, 422, 86 S.Ct. 1545, 16 L.Ed.2d 642 (1966)). Since the common law principles of collateral estoppel and res judicata are “well established,” courts may imply that “Congress has legislated with an expectation that the principle will apply except when a statutory purpose to the contrary is evident.” Id. at 108 (quotation marks omitted). Applying this framework, we have held that common law preclusion doctrines apply to adjudicative agency determinations under the INA, as long as application of these doctrines “does not frustrate congressional intent or impede the effective functioning of the agency.” Duvall v. Att’y Gen., 436 F.3d 382, 387-88 (3d Cir. 2006). In Duvall, we explained that these preclusion doctrines apply to “all proceedings that may be deemed ‘adjudicative,’ no matter whether the governing entity is a ‘court’ or an ‘agency.’ ” Id. at 390. We further explained that “[t]he adversarial system of dispute resolution established in the INA is plainly adjudicatory in character and susceptible to full application of common law principles of preclusion.” Id. Since “[requiring the INS to meet its burden of proof at a single hearing is consistent with the statutory scheme, as interpreted by the administrative agency, and will not frustrate the goals of Congress,” the “ ‘lenient presumption in favor of administrative estoppel’ holds, and the INA will be held to incorporate common law principles of collateral estoppel.” Id. (citing In re Fedorenko, 19 I. & N. Dec. 57, 61 (BIA 1984) and quoting Astoria, 501 U.S. at 108, 111 S.Ct. 2166). The parties in this case do not dispute the general proposition that res judicata may be applied to adjudicative proceedings under the INA." }, { "docid": "8058016", "title": "", "text": "merits that barred Ray from filing the ICRC Complaint. See Def.’s Br. at 5-8. Thus, according to Nationwide, the ICRC Complaint “cannot be relied on to satisfy the procedural prerequisite that [he] file a civil lawsuit within ninety (90) days of receiving his Notice of Right to Sue letter.” Id. at 5. Under the doctrine of claim preclusion, also called res judicata, “a judgment on the merits in an earlier lawsuit bars a second suit involving the same parties based on the same cause of action.” Wintermute v. Kan. Bankers Sur. Co., 630 F.3d 1063, 1067 (8th Cir.2011) (citing Prof l Mgmt. Assocs., Inc. v. KPMG LLP, 345 F.3d 1030, 1032 (8th Cir.2003)). “Claim preclusion, like issue preclusion, is an affirmative defense”; therefore, Nationwide bears the burden of proof. See Taylor v. Sturgell, 553 U.S. 880, 907, 128 S.Ct. 2161, 171 L.Ed.2d 155 (2008); see also Ringo v. Lombardi, 706 F.Supp.2d 952, 963 (W-D.Mo.2010) (“Res judicata is an affirmative defense on which Defendants bear the burden.”). In order to prove that claim preclusion bars Ray’s claim, Nationwide must show that there was “a prior judgment rendered by a court of competent jurisdiction, that prior judgment was final and on the merits, and it involved the same cause of action and the same parties or privies.” See Wedow v. City of Kansas City, Mo., 442 F.3d 661, 669 (8th Cir.2006). An agency determination is entitled to preclusive effect where: (1) the agency was acting in a judicial capacity; (2) the agency resolved disputed acts properly before it; and (3) the parties had “an adequate opportunity to litigate.... ” United States v. Utah Constr. & Mining Co., 384 U.S. 394, 422, 86 S.Ct. 1545, 16 L.Ed.2d 642 (1966); see also Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 107, 111 S.Ct. 2166, 115 L.Ed.2d 96 (1991) (“We have long favored application of the common-law doctrines of collateral estoppel (as to issues) and res judicata (as to claims) to those determinations of administrative bodies that have attained finality.”). Therefore, the Court must determine whether or not the EEOC’s proceedings satisfied" }, { "docid": "23180357", "title": "", "text": "A. Res judicata, also known as claim preclusion, bars a party from initiating a second suit against the same adversary based on the same “cause of action” as the first suit. See In re Mullarkey, 536 F.3d 215, 225 (3d Cir.2008). A party seeking to invoke res judicata must establish three elements: “(1) a final judgment on the merits in a prior suit involving (2) the same parties or their privies and (3) a subsequent suit based on the same cause of action.” Id. (quotation marks omitted). “The doctrine of res judicata bars not only claims that were brought in a previous action, but also claims that could have been brought.” Id. Although the doctrine of res judicata is most frequently applied to final judgments issued by courts, we have also endorsed its application to adjudicative determinations by administrative agencies, including certain immigration decisions. The Supreme Court has instructed that the “common-law doctrines of collateral estoppel (as to issues) and res judicata (as to claims)” should be applied “to those determinations of administrative bodies that have attained finality.” Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 107, 111 S.Ct. 2166, 115 L.Ed.2d 96 (1991). “ ‘When an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, the courts have not hesitated to apply res judicata to enforce repose.’ ” Id. (quoting United States v. Utah Constr. & Mining Co., 384 U.S. 394, 422, 86 S.Ct. 1545, 16 L.Ed.2d 642 (1966)). Since the common law principles of collateral estoppel and res judicata are “well established,” courts may imply that “Congress has legislated with an expectation that the principle will apply except when a statutory purpose to the contrary is evident.” Id. at 108 (quotation marks omitted). Applying this framework, we have held that common law preclusion doctrines apply to adjudicative agency determinations under the INA, as long as application of these doctrines “does not frustrate congressional intent or impede the effective functioning of the agency.” Duvall v. Att’y Gen., 436" }, { "docid": "22271719", "title": "", "text": "a provision does not, however, dictate that no such limitation exists. The Supreme Court has found such limitations implicitly. For example, in Astoria Fed. Sav. & Loan v. Solimino, 501 U.S. 104, 111 S.Ct. 2166, 115 L.Ed.2d 96 (1991), the Supreme Court held that the Age Discrimination in Employment Act (“ADEA”) implicitly deprived state administrative agency determinations of preclusive effect. Id. at 110-14, 111 S.Ct. at 2171-73. Specifically, the Court recognized that the ADEA mandates that, where state law forbids discrimination on the basis of age, a complainant may pursue a federal complaint only after completing proceedings under that state law. Id. at 110-11, 111 S.Ct. 2166. Finding that this provision implicitly contemplated federal review even after a state administrative decision, the Court held that Congress, in enacting the ADEA, intended that factual determinations of state administrative agencies not have pre-clusive effect in federal court. Id. The FMLA contains no provision dealing with prior state administrative actions. Indeed, there is no indication of a Congressional intent anywhere in the FMLA to limit the preclusive effect of state administrative agency factual determinations. The issue is simply not addressed, and, accordingly, we cannot say definitively that Congress intended to limit the role that a state administrative agency’s findings would play in a subsequent suit under the FMLA in federal court. Thus, the ultimate question must be addressed here— whether, under New York law, which governs the matter of collateral estoppel, see Marrese v. Am. Acad. of Orthopaedic Surgeons, 470 U.S. 373, 381-82, 105 S.Ct. 1327, 1332-33, 84 L.Ed.2d 274 (1985), the finding of no probable cause by the DHR precludes subsequent litigation of causes of action based on the same events, even where the claimant was not provided with a hearing and the no-probable-cause finding was not reviewed by a state court. b. Preclusive effect of the DHR determination This court has addressed the issue of what preclusive effect the DHR’s no-probable-cause determination should be given in federal court on several occasions. After Elliott was decided, this court turned to the issue of the preclusive effect of a DHR no-probable-cause determination in" }, { "docid": "1450036", "title": "", "text": "in the granting of a motion for summary judgment. There should always be a natural preference for allowing the parties to proceed to a trial on the merits where there is any factual matter subject to a bona fide dispute which bears on the ultimate resolution of the controversy. Associated Press v. U.S., 326 U.S. 1, 6, 65 S.Ct. 1416, 1418, 89 L.Ed. 2013 (1945) (“Rule 56 should be cautiously invoked to the end that parties may always be afforded a trial where there is a bona fide dispute of facts between them”). “Where it appears however that there is no genuine issue as to any material fact upon which the outcome of the litigation turns, the case is appropriate for disposition by summary judgment and it becomes the duty of the court to enter such judgment.” Whelan v. New Mexico Western Oil and Gas Company, 226 F.2d 156, 159 (10th Cir.1955). The standard of proof in dischargeability matters under 11 U.S.C. § 523 is the preponderance of the evidence standard. Grogan v. Garner, 498 U.S. 279, 286, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). Furthermore, “exceptions to discharge are to be narrowly construed, and because of the fresh start objectives of bankruptcy, doubt is to be resolved in the debtor’s favor.” Cundy v. Woods (In re Woods), 284 B.R. 282, 288 (D.Colo.2001) (citing Bélico First Federal Credit Union v. Kaspar (In re Kaspar), 125 F.3d 1358, 1361 (10th Cir.1997)). B. Collateral Estoppel The preclusive effect given in federal court to a prior federal decision is subject to federal law. Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 507, 121 S.Ct. 1021, 1027, 149 L.Ed.2d 32 (2001). Administrative proceedings are entitled to collateral estoppel effect. Astoria Federal Sav. and Loan Ass’n v. Solimino, 501 U.S. 104, 107, 111 S.Ct. 2166, 2169, 115 L.Ed.2d 96 (1991). Pursuant to Dodge v. Cotter Corp., 203 F.3d 1190 (10th Cir.2000), collateral estoppel applies to prevent relitigation of the issues decided in a federal court where: 1. the issue previously decided is identical with the one presented in the action in question, 2." }, { "docid": "570638", "title": "", "text": "17, 1999, well beyond the 90 days allowed by the FMLA.” Id. Also, “Brock-man submitted no evidence ... that her FMLA leave was improperly calculated.” Id. As noted above, Ms. Brockman did not appeal the hearing officer’s decision. As the district court correctly concluded, the hearing officer’s decision is preclusive so long as the Wyoming courts themselves would give it preclusive effect. See Univ. of Tenn. v. Elliott, 478 U.S. 788, 799, 106 S.Ct. 3220, 92 L.Ed.2d 635 (1986). The Wyoming Supreme Court has stated that “since administrative agency decisions deal primarily with issues rather than with causes of action or claims, collateral estoppel is the appropriate preclusion doctrine to be applied to final administrative agency decisions. The collateral estoppel doctrine prevents relitigation of issues which were involved actually and necessarily in a prior action between the same parties.” Kahrs v. Bd. of Trs. for Platte County Sch. Dist. No. 1, 901 P.2d 404, 406 (Wyo.1995) (reviewing the finality of an administrative hearing when the losing party did not appeal the administrative hearing’s outcome) (internal citation omitted). The United States Supreme Court has “long favored application of the common-law doctrines of collateral estoppel (as to issues) and res judicata (as to claims) to those determinations of administrative bodies that have attained finality.” Astoria Fed. Sav. & Loan Assoc. v. Solimino, 501 U.S. 104, 107, 111 S.Ct. 2166, 115 L.Ed.2d 96 (1991). Some federal statutory schemes abrogate this federal common-law rule. See id. at 110, 111 S.Ct. 2166 (ADEA); Elliott, 478 U.S. at 799, 106 S.Ct. 3220 (Title VII). The Wyoming Supreme Court has stated that four factors should be analyzed in this inquiry: (1) whether the issue decided in the pri- or adjudication was identical with the issue presented in the present action; (2) whether the prior adjudication resulted in a judgment on the merits; (3) whether the party against whom collateral estoppel is asserted was a party or in privity with a party to the prior adjudication; and (4) whether the party against whom collateral estoppel is asserted had a full and fair opportunity to litigate the issue in" }, { "docid": "14903455", "title": "", "text": "shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.... 29 U.S.C. § 794(a). . Section 202 of the ADA provides, in relevant part: [N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or 'activities of a public entity, or be subjected to discrimination by any such entity. 42 U.S.C. § 12132. . The Chambers Plaintiffs also claim that the Full Faith and Credit Act, 28 U.S.C. § 1738, dictates that the Court must rubber stamp the earlier administrative decisions. Pursuant to the Full Faith and Credit Act, federal courts \"must give the same preclusive effect to state court judgments that those judgments would be given in the courts of the State from which the judgments emerged.” Ocasio v. Ollson, 596 F.Supp.2d 890, 896 (E.D.Pa.2009) (citations omitted). However, federal courts have refused to give full faith and credit to unreviewed agency decisions, especially in cases alleging discriminatory action as the basis for recovery of money damages. See, e.g., Astoria Fed. Sav. and Loan Ass’n v. Solimino, 501 U.S. 104, 109, 111 S.Ct. 2166, 115 L.Ed.2d 96 (1991) (explaining that \"[the Full Faith and Credit Act] is inapplicable to the judicially unreviewed findings of state administrative bodies,” and noting that federal courts should recognize no preclusion by state administrative findings in Title VII or Age discrimination claims); Roth v. Koppers Indus., Inc., 993 F.2d 1058, 1062-63 (3d Cir.1993) (extending the rationale of University of Tennessee v. Elliott, 478 U.S. 788, 106 S.Ct. 3220, 92 L.Ed.2d 635 (1986) that unreviewed state administrative factual findings in Title VII cases are not entitled to preclusive effect in subsequent federal court actions, to include both defensive and offensive uses of collateral estoppel). . Although the Supreme Court held in Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 62, 126 S.Ct. 528, 163 L.Ed.2d 387 (2005), that \"[t]he burden of proof in an administrative" }, { "docid": "14903456", "title": "", "text": "full faith and credit to unreviewed agency decisions, especially in cases alleging discriminatory action as the basis for recovery of money damages. See, e.g., Astoria Fed. Sav. and Loan Ass’n v. Solimino, 501 U.S. 104, 109, 111 S.Ct. 2166, 115 L.Ed.2d 96 (1991) (explaining that \"[the Full Faith and Credit Act] is inapplicable to the judicially unreviewed findings of state administrative bodies,” and noting that federal courts should recognize no preclusion by state administrative findings in Title VII or Age discrimination claims); Roth v. Koppers Indus., Inc., 993 F.2d 1058, 1062-63 (3d Cir.1993) (extending the rationale of University of Tennessee v. Elliott, 478 U.S. 788, 106 S.Ct. 3220, 92 L.Ed.2d 635 (1986) that unreviewed state administrative factual findings in Title VII cases are not entitled to preclusive effect in subsequent federal court actions, to include both defensive and offensive uses of collateral estoppel). . Although the Supreme Court held in Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 62, 126 S.Ct. 528, 163 L.Ed.2d 387 (2005), that \"[t]he burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief,” this does not alter the Court's conclusion because Schaffer was decided well after the 1995 and 2004 administrative proceedings. See L.G. v. Wissahickon Sch. Dist., Nos. 06-333, 06-3816, 2011 WL 13572, at *6, n. 4 (E.D.Pa. Jan. 4, 2011). Indeed, Hearing Officer Mullaly made clear in her 2004 decision that \"the district bears the burden of proof in establishing that it is currently offering the student a free appropriate public education ____” Chambers Mot. S.J. Ex. 1, at 9. . While the Chambers Plaintiffs did not argue this point, Hearing Officer Mullaly's written administrative decision (or at least parts of it) may have to fit within an exception to the bar against hearsay evidence, Fed.R.Evid. 802, namely the public records hearsay exception. See Fed.R.Evid. 803(8)(c). . Aside from the obvious prejudice issues Hearing Officer Mullaly’s testimony would present, her testimony is also inadmissible hearsay under Rule 802. Fed.R.Evid. 802. Ms. Mullaly does not have personal knowledge of the events surrounding the Chambers Plaintiffs'" } ]

[ { "docid": "23332810", "title": "", "text": "sentence was imposed, and after the affirmance of the judgment here, it was without power to entertain the petition. This ruling is assigned as error, and the question presented is whether the court below had power under the facts stated to hear and decide the petition. The Circuit Court of Appeals of the Ninth Circuit had this question before it in Nix v. James, 7 F.(2d) 590, and decided that the District Court could and should hear a petition under the act after the expiration of the term and after affirmance on writ of error. We agree with the conclusions there reached, and think there are additional reasons for so holding in the case now under consideration. The Supreme Court having decided in Ex parte United States, 242 U. S. 27, 37 S. Ct. 72, 61 L. Ed. 129, L. R. A. 1917E, 1178, Ann. Cas. 1917B, 355, that the District Courts were without power to suspend. permanently the imposition or execution of sentence, Congress passed the Probation Act to enable them to do so. The power is granted in the first section of the act. So far as it is pertinent to the question now under consideration it reads: “The courts of the United States having original jurisdiction of criminal actions, except in the District of Columbia, when it shall appear to the satisfaction of the court that the ends of justice and the best interests of the public, as well as the defendant, will be subserved thereby, shall have power, after conviction or after a plea of guilty or nolo contendere for any crime or offense not punishable by death or life imprisonment, to suspend the imposition or execution of sentence and to place the defendant upon probation for stlch period and upon such terms and conditions as they may deem best.” It will be noted power is given to suspend either the imposition or the execution of sentence. What do these words mean? The Century Dictionary defines “suspend”: “To cause to cease for a time; hinder from proceeding; interrupt; stay; delay; to hold undetermined.” “Impose” is defined" } ]

[ { "docid": "13702311", "title": "", "text": "WOOLLEY, Circuit Judge. John Read Miner was indicted for violating section 5209, Revised Statutes (Comp. St. 1916, § 9772). On March 11, 1915, he entered a plea of guilty. Sentence was deferred to May 1, 1915. Thereafter sentence was postponed on the application of the defendant from term to term for three terms, recognizance being required and given at each term for his appearance at the next. On January 15, 1917, he was called for sentence. In response, he filed a motion in arrest of judgment. Upon its denial, sentence was imposed. He now brings this writ and raises the question: Whether the court, by failing to impose sentence at the trial term, lost jurisdiction to impose sentence at a later term. In support of his contention ’ that the postponement of sentence beyond the trial term, though on his motion, deprived tire court of jurisdiction to impose sentence upon him at any other term, the defendant cites for authority Ex parte United States (Killetts), 242 U. S. 27, 37 Sup. Ct. 72, 6.1 L. Ed. 129, Ann. Cas. 1917B, 355, and numerous state decisions, holding that a court is without power to suspend a sentence once imposed, and similarly is without power to suspend the imposition of sentence, conditioned, in either instance, upon the good behavior of the prisoner or upon the future attitude of the court toward him. These decisions are based upon the principle that the penalty for a crime is a matter within the legislative department of. the government, the imposition of the penalty by sentence is the function of the judicial department, to be performed as prescribed, and relief therefrom by pardon is exclusively within the executive department. This principle, of course, is not open to dispute. The questions are, when is the principle invaded, and what is the effect of its invasion upon the further jurisdiction of the court over an offender? It is now very generally held that the principle is invaded when a court, by an act dono cither before sentence or after, attempts to pardon a convict, or to parole him" }, { "docid": "22945970", "title": "", "text": "court-martial that the suspended portion of the sentence was a nullity. The convening authority specifically rejected the suspension of the bad-conduct discharge proposed by the court-martial and thereafter approved a bad-conduct discharge providing suspension thereof for either the period of confinement or completion of appellate review. See United States v Trawick, 10 USCMA 80, 82, Footnote 3, 27 CMR 154. The board of review, except for the dismissal of one Charge of which the accused had been found guilty, approved the findings and sentence. The first issue. We held in United States v Marshall, 2 USCMA 342, 8 CMR 142, that the court-martial, as a jury, could not suspend a sentence. See also Zeigler v District of Columbia, 71 A2d 618 (DC Mun App) (1950), to the effect that: . . Since the decision of the Supreme Court in Ex parte United States, 242 US 27, 37 S Ct 72, 61 L Ed 129, LRA 1917E, 1178, Ann Cas 1917B, 355, it has been established that, in the absence of statutory authority, there is no inherent right in any court of the federal judicial system to suspend execution of sentence in a criminal case. **. . . The court had the power to impose the sentence and the void suspension does not void the sentence.” We therefore hold that the convening authority’s action was within his power if the sentence was otherwise valid. The second issue. The pertinent circumstances are grounded on the following colloquy, in the course of which, as a result of the law officer’s suggestions, the court-martial arrived at its final verdict: “PRESIDENT: Henry DeWitt Samuels, boatswain’s mate first class, U. S. Navy, it is my duty as president of this court to inform you that the court in closed session and upon secret written ballot, two-thirds of the members present at the time the vote was taken concurring, sentences you: To be reduced to the grade of seaman; to forfeit fifty dollars ($50) per month for thirty-six (36) months; and to be discharged from the naval service with a bad conduct discharge, the bad conduct discharge" }, { "docid": "14720085", "title": "", "text": "the service, vacate his order and relinquish jurisdiction. We can act only on the petitioner’s own showing and in so acting we shall apply and very briefly refer to the law of the case as made by the petitioner. The plaintiff, seemingly in doubt as to which of the three related corporations he had sued was the actual tortfeasor and being willing to be relieved of possible embarrassment at the trial by a decision on- the petition, interposed no objection and left his case with the court. There is no doubt that a circuit court of appeals can and will issue a writ of prohibition in aid of its appellate jurisdiction when there is a showing of law or fact that jurisdiction has been assumed by a district court within the circuit which is beyond its legal cognizance, Smith v. Whitney, 116 U. S. 167, 6 S. Ct. 570, 29 L. Ed. 601; Petition of United States, 263 U. S. 389, 44 S. Ct. 130, 68 L. Ed. 351, as, for exaggerated examples, in a suit on a contract when the pleadings show it is between citizens of the same state and in a suit on a contract or in tort for damages less than $3000; and for better examples, to require a district court to set aside an ultra vires order suspending a criminal sentence, Ex parte United States, 242 U. S. 27, 37 S. Ct. 72, 61 L. Ed. 129, L. R. A. 1917E, 1178, Ann. Cas. 1917B, 355; in an admiralty suit in rem against a vessel owned by the United States and employed in the public service, The Western Maid, 257 U. S. 419, 42 S. Ct. 159, 66 L. Ed. 299; and in suits for marine torts against a sovereign state which had not consented to be sued, Ex parte State of New York, 256 U. S. 490, 41 S. Ct. 588, 65 L. Ed. 1057, and Id., 256 U. S. 503, 41 S. Ct. 592, 65 L. Ed. 1063. These eases, indeed all the many cases cited by the petitioner which we have examined," }, { "docid": "23315080", "title": "", "text": "sentence applicable to the offense charged, and hence that the court was without power to fix the term of probation at five year's, and was also without power, after the expiration of the period of one year, to cause the defendant to be brought in and sentenced. (3) That it is incumbent upon the District Court when it places a defendant upon probation under the Probation Act to fix the terms and conditions of probation, and that the District Court in the instant ease failed to specify terms and conditions, and hence the act of the court in placing the defendant upon probation on November 16, 1927, was void and the sentence that the defendant pay a fine of $25 constituted the complete judgment of the court, to which the court was without power to add an additional sentence of imprisonment at a subsequent date. It was decided by the Supreme Court of the United States in Ex parte United States, 242 U. S. 27, 37 S. Ct. 72, 61 L. Ed. 129, L. R. A. 1917E, 1178, Ann. Cas. 1917B, 355, that a District Court of the United States, in the absence of. a statute, does not possess the power to suspend sentence in a criminal case except for some definite period and for some specific temporary purpose. In harmony with this rule it has been settled by the decisions of this court in Gillespie v. Walker, 296 F. 330, Fisher v. Walker, 296 F. 335, and Strickling v. Walker, 296 F. 337, that a District Court, after the rendition of its judgment under one count of an information, has no power to render a second judgment at a later term against the accused under another count of the same information, even though a continuance was had to a later date, with a view of considering the action to be taken under the second count; and the rule holds good whether the court attempts to impose the second judgment in the same or a subsequent term of court. In the Gillespie Case, Judge Waddill said (page 333 of 296" }, { "docid": "14720086", "title": "", "text": "suit on a contract when the pleadings show it is between citizens of the same state and in a suit on a contract or in tort for damages less than $3000; and for better examples, to require a district court to set aside an ultra vires order suspending a criminal sentence, Ex parte United States, 242 U. S. 27, 37 S. Ct. 72, 61 L. Ed. 129, L. R. A. 1917E, 1178, Ann. Cas. 1917B, 355; in an admiralty suit in rem against a vessel owned by the United States and employed in the public service, The Western Maid, 257 U. S. 419, 42 S. Ct. 159, 66 L. Ed. 299; and in suits for marine torts against a sovereign state which had not consented to be sued, Ex parte State of New York, 256 U. S. 490, 41 S. Ct. 588, 65 L. Ed. 1057, and Id., 256 U. S. 503, 41 S. Ct. 592, 65 L. Ed. 1063. These eases, indeed all the many cases cited by the petitioner which we have examined, turn on matters pf law involving no disputed facts and no findings of fact with respeet to which men and, accordingly, courts might differ. In such instances the appellate court, having before it all that was before the offending trial court, is in position to decide the question of jurisdiction and to decide it fully and finally. But evidently the question when a circuit court of appeals should and should not issue a writ of prohibition turns in some eases, as in the instant case, on facts open to different inferences and in others on a doubt as to the law or the facts. So, in this confusion of eases, the Supreme Court has repeatedly made pronouncements, as to the issuance of a writ of prohibition, so similar in form as to suggest a rule for itself or for the guidance of other courts. It last appears in Ex parte Chicago, R. I., etc., 255 U. S. 273, 275, 276, 41 S. Ct. 288, 289, 65 L. Ed. 631, in these words: “If the lower" }, { "docid": "7698936", "title": "", "text": "(18 USCA § 724) in terms authorize the court to require a defendant,'at the time he is placed on probation, to pay a fine which has been imposed on him to the probation officer (in one or several sums) during his probation, and section 4 (18 USCA § 727) provides that the probation officer “shall keep accurate and complete accounts of all moneys collected from persons under his supervision; shall give receipts therefor, and shall make at least monthly returns thereof” to the court. The order directing the payment of the fine to the probation officer during the probation period was therefore also a suspension of the original sentence so far as it related to thel fine. It is a well established rule that the District Courts of the United States cannot amend or set aside a final judgment after the term at which it is entered, although it may do so at any time during the term. United States v. Mayer, 235 U. S. 55, 35 S. Ct. 16, 59 L. Ed. 129. Congress, however, could change this rule by statute, and we are of the opinion that, by the! provisions of sections 1 and 2 of the Probation Act of March 4,1925 (43 Stat. e. 521 [18 USCA §§ 724, 725]) Congress has extended this power of the courts over their judgments, even after the expiration of the judgment term, in that class of cases where, for conviction of crime, the District Courts were authorized to grant a period of probation. Ackerson v. United States (C. C. A.) 15 F.(2d) 268. The Supreme Court, in construing the Probation Act in United States v. Murray, 275 U. S. 347, 48 S. Ct. 146, 72 L. Ed. 309, held that the District Court had the power to grant probation at any time before execution of sentence had begun but not afterwards. And at page 356 of 275 U. S., 48 S. Ct. 146, 149, it says: “The Probation Act gives power to grant probation to a convict after his conviction or after a plea] of guilty, by suspending the imposition" }, { "docid": "21508785", "title": "", "text": "therefore turn on the-question whether, at the time of imposing the-penitentiary sentence, the eourt may provide-for its future suspension after partial execution. No such power at common law has-been shown. Aside from statute, indefinite suspension of a part of a lawful sentence-would seem to labor under the same condemnation applying to a suspension of the whole. Ex parte United States, 242 U. S. 27, 37 S. Ct. 72, 61 L. Ed. 129, L. R. A. 1917E, 1178, Ann. Cas. 1917B, 355. The power, if it exists, must be derived from the source claimed in this sentence, to wit, the Act of March 4, 1925, establishing a system of probation.. The grant of power there is thus phrased: “The courts of the United States having original jurisdiction of criminal actions, except in the District of Columbia, when it. shall appear to the satisfaction of the court that the ends of justice and the best interests of the public, as well as the defendant, will be subserved thereby, shall have power, after conviction or after a plea of guilty or nolo contendere for any crime or offense not punishable by death or life imprisonment, to suspend the imposition or execution of sentence and to place the defendant upon probation for such period and upon such terms and conditions as they may deem best; or the court may impose a fine and may also place the defendant upon probation in the manner aforesaid. The court may revoke or modify any condition of probation, or may change the period of probation: provided, that the period of probation, together with any extension thereof, shall not exceed five years.” The power to suspend the imposition or the execution of sentences is not general, but exists only as defined by the statute. It arises when (1) the ends of justice and the best interest of the public, as well as of the defendant, will be subserved thereby, and (2) after an ascertainment of actual guilt of a crime not punishable by death or life imprisonment. The power again is not absolute, but the suspension must be accompanied" }, { "docid": "13238440", "title": "", "text": "would appear before the court for trial at a time or term specified. The court had authority to continue this case from the November term to the April term It did not lose jurisdiction. Nojudgment had been entered. The bond by its , . , t ,, , -i,i terms anticipated that continuances might be , , « * .. , T, . granted from time to time. It is common & i experience that, m order to do justice to one , , Tin mí jt , • o, who has pleaded guilty, the court is often . -j j f . . required to have investigations made m or- , ^ ... , der that an intelligent disposition may be made of the ease or circumstances may appear winch justify a continuance m the interest of the government as well as the defendant. In the case of Mintie v. Biddle (C. C. A.) 15 F.(2d) 931, 932, the court stated: “We have no doubt that, after a plea of guilty or after conviction of one guilty of a crime, sentence may be deferred at convenience till some day, or any day in the current term. This is so, because the court ordinarily retains jurisdiction over its judgments for the current term in all eases. Nor have we any doubt that sentence may, in furtherance of the administration of justice, be deferred to some day in the next term or even to some definite time in the second succeeding term (Ex parte United States, 242 U. S. 27, 37 S. Ct. 72, 61 L. Ed. 129, L. R. A. 1917E, 1178, Ann. Cas. 1917B, 355), by an order made in the ease (Miner v. United States, 244 F. 422, 157 C. C. A. 48, 3 A. L. R. 995; Ex parte Singer [C. C. A.] 284 F. 60).” Schwartzberg was discharged from custody by reason of this recognizance, and the surety, Palermo, covenanted that he would not only appear for trial, hut also for judgment. He failed to appear and abide the judgment of the court, and the surety" }, { "docid": "5526027", "title": "", "text": "S. 174, 27 Sup. Ct. 135, 51 L. Ed. 142. While the case should have been brought to this court by appeal, we do not deem that of sufficient moment in this important class of cases to deny relief where otherwise it-should be granted. Act Cong. Sept. 6, 1916, 39 Stat. p. 726. Second. Considering the right of the court to postpone action in rendering its judgment to the then next term of the court, it may be said that, if what was done was otherwise free'from objection, it was in the discretion of the court to thus postpone the rendition of its judgment to the next term.’ Federal courts, as compared with what had been the invariable custom since the establishment of the present judicial system,t have been greatly restricted in their action on the subject of suspending ■ sentences, and postponing the rendition of their judgments, by the decision of the Supreme Court of the United States in the comparatively recent case of Ex parte United States, Petitioner, 242 U. S. 27, 37 Sup. Ct. 72, 61 L. Ed. 129, Ann. Cas. 1917B, 355, familiarly known as the “Killitts Case.” Since this decision of the Supreme Court the Circuit Court of Appeals for the Third Circuit in Miner v. United States, 244 Fed. 422, 157 C. C. A. 48, 3 A. L. R. 995, has fully and intelligently considered what may be done on the subject in the light of the Killitts decision with the result that, while the District Courts are without power to extend the rendition of their judgments and the execution of their sentences with a view of paroling or pardoning an accused, they may nevertheless do so where it becomes incidentally necessary in the administration of justice. In -that case the Circuit Court of Appeals reviewed the action of the District Court, postponing its judgment until the third term of the court after conviction,' a continuance having been regularly made, and the accused bailed for his appearance at each term.' While it is manifest that the -time in which judg-. ments should be kept" }, { "docid": "21542113", "title": "", "text": "terms and conditions as to the court seems best. No request was made by this plaintiff in error to suspend the imposition of sentence; but the government asserts that the District Court was without jurisdiction to grant a suspension of execution of sentence. We observe that the statutory power is not only to suspend sentence, but (conjunctively) to place the convict on probation. It may be argued that a mere suspension of sentence, such as was often granted for some 70 years at least, in this circuit, before Ex parte United States, 242 U. S. 27, 37 S. Ct. 72, 61 L. Ed. 129, L. R. A. 1917E, 1178, Ann. Cas. 1917B, 355, is still as unlawful as the case cited made it, because, while the statute has restored suspension of sentence, such restoration is coupled with an obligation to “place on probation” — an entirely new word in federal laws, and one not defined in the statute. We do not express any opinion on the meaning or effect of the phrase “place on probation”; but “probation,” whatever it means, is part of the jurisdictional grant. The objections to jurisdiction as argued may be thus put: Suspension of sentence, whatever else it is, is an act of mercy, and it is not to be supposed that Congress intended to give an opportunity of dispensing mercy to those who have exhausted all the devices of the law in endeavoring to escape from the consequences of a crime of which the jury adjudged them guilty. The fount of mercy should be deemed closed by the defiance of an appeal. More technically the sentence of a criminal court is its judgment; a suspension of that sentence is in the nature of a modification of judgment, and it has always been unlawful for a court to alter its final judgment after the expiration of the term at which it is entered. United States v. Mayer, 235 U. S. 55, 35 S. Ct. 16, 59 L. Ed. 129. Again, after affirmance and receipt of mandate, it is, by a multitude of opinions, the sole duty" }, { "docid": "21542112", "title": "", "text": "HOUGH, Circuit Judge (after stating the facts as above). This writ is properly brought to review a decision of the District Court, final because of the ground upon which that court placed its action or refusal to aet. We intimated as much in Be Gilbough, 13 F.(2d) 462, and do not think it of moment whether under existing legislation review is sought by what is technically called an appeal or by writ of error. The only question raised is whether the court below, when application was made, possessed jurisdiction in the premises. The statutory grant of power is confined to “courts of the United States having original jurisdiction of criminal actions,” and the power may be exerted only when it is made to -“appear to the satisfaction of the court that the ends of justice and the best interests of the public * * * will be -.subserved” by exercising that power, which is to suspend the imposition or execution of sentence and to place the defendant upon probation for such period and upon such terms and conditions as to the court seems best. No request was made by this plaintiff in error to suspend the imposition of sentence; but the government asserts that the District Court was without jurisdiction to grant a suspension of execution of sentence. We observe that the statutory power is not only to suspend sentence, but (conjunctively) to place the convict on probation. It may be argued that a mere suspension of sentence, such as was often granted for some 70 years at least, in this circuit, before Ex parte United States, 242 U. S. 27, 37 S. Ct. 72, 61 L. Ed. 129, L. R. A. 1917E, 1178, Ann. Cas. 1917B, 355, is still as unlawful as the case cited made it, because, while the statute has restored suspension of sentence, such restoration is coupled with an obligation to “place on probation” — an entirely new word in federal laws, and one not defined in the statute. We do not express any opinion on the meaning or effect of the phrase “place on probation”;" }, { "docid": "14736842", "title": "", "text": "the application. A full hearing was had before the judge who had tried the ease. Relator testified in his own behalf. The judge, after stating that he. had given some terms of probation verbally and that these had been broken, imposed a sentence of imprisonment for a year and a day. Appeal therefrom was dismissed for failure to file the record in proper time. Thereupon a writ of habeas corpus was sued out. This writ was dismissed on the ground that the question of jurisdiction to revoke the probation had been raised and decided adversely to relator in the revocation proceedings. The cause is before us on an appeal from the order dismissing the writ. Relator asserts lack of jurisdiction to sentence him, on his contention that under the Probation Act § 1 (18 USCA § 724), jurisdiction to revoke probation and impose sentence is dependent upon allegation and proof that some term or condition expressed in the' probation order has been broken, and that there was neither allegation nor proof of a breach of the only express condition, to report monthly to the probation officer. Ex parte United States, 242 U. S. 27, 37 S. Ct. 72, 61 L. Ed. 129, L. R. A. 1917E, 1178, Ann. Cas. 1917B, 355, held that, at common law, sentence must be imposed and could not be permanently suspended after conviction or plea of guilty, and that, on application of the government, the District Judge could be mandamused to impose sentence. By the Probation Act § 1 (18 USCA § 724), however, the courts are given the power “to suspend the imposition or execution of sentence and to place the defendant upon probation for such period and upon such terms and conditions as they may deem best.” They may “revoke or modify any condition of probation”; 'the term of probation, however, may not exceed five years. By Probation Act § 2 (18 USCA § 725), the defendant may be brought before the court for sentence not only within the probation period, but even thereafter; the only limitation is that it be within the" }, { "docid": "14736843", "title": "", "text": "the only express condition, to report monthly to the probation officer. Ex parte United States, 242 U. S. 27, 37 S. Ct. 72, 61 L. Ed. 129, L. R. A. 1917E, 1178, Ann. Cas. 1917B, 355, held that, at common law, sentence must be imposed and could not be permanently suspended after conviction or plea of guilty, and that, on application of the government, the District Judge could be mandamused to impose sentence. By the Probation Act § 1 (18 USCA § 724), however, the courts are given the power “to suspend the imposition or execution of sentence and to place the defendant upon probation for such period and upon such terms and conditions as they may deem best.” They may “revoke or modify any condition of probation”; 'the term of probation, however, may not exceed five years. By Probation Act § 2 (18 USCA § 725), the defendant may be brought before the court for sentence not only within the probation period, but even thereafter; the only limitation is that it be within the maximum period for which sentence could have been imposed. The court may thereupon “revoke the probation or the suspension of sentence, and may impose any sentence which might originally have been imposed.” We express no opinion on a defendant’s right, in order to forestall the risk of the imposition of sentence in the distant future, to waive suspension and probation and to demand an immediate sentence. If relator had such a right, he waived it by expressly consenting to probation and suspension. It is unnecessary, too, to determine whether under the act the court may suspend sentence without any order of probation in view of its power by the express provisions of section 725 to revoke suspension and impose sen-, tenee after the probation period has ended; in this case, there was a probation order. The court therefore clearly had jurisdiction of relator and of the subject-matter of the revocation of his probation and the imposition of sentence. The act itself has no express restrictions on the power to revoke the probation or to modify" }, { "docid": "16075667", "title": "", "text": "power of parole by a board of parole abating judicial punishment to the extent of two-thirds of it as to all crimes punishable by imprisonment for more than one year. It seems quite unlikely that Congress would have deemed it wise or necessary thus to make applicable to the same crimes at the same time three different methods of mitigation. * * * A more reasonable construction is to reconcile the provisions for probation, parole, and executive elemency, making them as little of a repetition as we can.” It is true that in the Murray and Cook Cases the orders of probation were made long after the sentences had been imposed and after execution thereof had commenced, still the reasons which impelled the construction in those eases are applicable here. If an overlapping of the Parole Act (18 USCA §§ 714— 723) by the Probation Act (18 USCA §§ 724-727) and clashes between the orders of district courts and of Parole Boards are to be avoided, the Parole Act must not be construed to give authority to district courts to require the serving of some portion of a sentence of imprisonment, as a condition of parole. Therefore, it is our conclusion that the court was without power to impose the requirement, as a condition of probation, that the appellee should serve some portion of his sentence of imprisonment. It follows that the order of probation was void. While we do not think that, on account of the void order of probation, the appellee should be required to serve the remaining nine months of the sentence, we are powerless to relieve the appellee therefrom. His recourse must be to the executive branch of the government for parole or pardon. In order to afford appellee an opportunity to seek such relief, the mandate will be withheld for ninety days. See Ex parte United States, 242 U. S. 27 at 52, 53, 37 S. Ct. 72, 61 L. Ed. 129, L. R. A. 1917E, 1178, Ann. Cas. 1917B, 355. The judgment is reversed and the cause remanded with instructions to sustain the motion" }, { "docid": "13494861", "title": "", "text": "and the other, No. 5940, from the order of June 11, 1936, denying his petition to suspend sentence. The appeal from the judgment order of May 19th was not taken until June 15th, and was therefore in violation of rule 3 of the Supreme Court, which provides that an appeal shall be taken within five days after entry of judgment of conviction (with certain exception not here material). The fact that execution of the judgment had been stayed from time to time would not avoid the necessity of compliance with this rule. Unless the appeal is timely taken this court acquires no jurisdiction. The question presented by the appeal in No. 5940 from the order of June 11th, denying the petition to “suspend sentence,” presents a narrow question. The Probation Act § 1, 18 U.S.C.A. § 724, provides that: “when it shall appear to the satisfaction of the court that the ends of justice and the best interests of the public, as well as' the defendant, will be subserved thereby [they] shall have power, after conviction or after a plea of guilty or nolo contendere for any crime or offense not punishable by death or life imprisonment, to suspend the imposition or execution of sentence and to place the defendant upon probation for such period and upon such terms and conditions as they may deem best.” We know of no instance wherein the court may permanently suspend sentence or the imposition of sentence except by virtue of the terms of the Probation Act. Ex parte U. S., 242 U.S. 27, 37 S.Ct. 72, 61 L.Ed. 129, L.R.A.1917E, 1178, Ann. Cas.l917B, 355; U. S. v. Wilson (C.C.) 46 F. 748; People ex rel. Smith v. Allen, 155 Ill. 61, 39 N.E. 568, 41 L.R.A. 473. Consequently, the petition for suspension of sentence can only be appropriate in connection with an application for admission to probation, and an appeal from the court’s order denying the same is reviewable by this court on the single question of abuse of discretion by the District Court. It is not contended in appellant’s printed briefs or" }, { "docid": "16075668", "title": "", "text": "authority to district courts to require the serving of some portion of a sentence of imprisonment, as a condition of parole. Therefore, it is our conclusion that the court was without power to impose the requirement, as a condition of probation, that the appellee should serve some portion of his sentence of imprisonment. It follows that the order of probation was void. While we do not think that, on account of the void order of probation, the appellee should be required to serve the remaining nine months of the sentence, we are powerless to relieve the appellee therefrom. His recourse must be to the executive branch of the government for parole or pardon. In order to afford appellee an opportunity to seek such relief, the mandate will be withheld for ninety days. See Ex parte United States, 242 U. S. 27 at 52, 53, 37 S. Ct. 72, 61 L. Ed. 129, L. R. A. 1917E, 1178, Ann. Cas. 1917B, 355. The judgment is reversed and the cause remanded with instructions to sustain the motion to dismiss the petition and to deny the writ of habeas corpus. COTTERAL, Circuit Judge (dissenting). I agree that this case does not involve the question decided in White v. Steigleder, but I am unable to concur in the holding that the Probation Act does not confer the power, before sentence has begun, to grant probation or suspend sentence, to be effective after a partial service of the sentence. The power has only the limitation in the statute that it shall be “after conviction or after a plea of guilty or nolo contendere.” Because after commencement of sentence it would be concurrent with an executive pardon or parole, the interpretation was given to the statute in U. S. v. Murray and Cook v. U. S., that it was not so intended by Congress. The order of probation preceded the sentence term in this ease, when the power to grant it was unlimited, and the punishment was within the discretion of the court. It was the equivalent of a lesser sentence, ending at the date of" }, { "docid": "13238441", "title": "", "text": "of one guilty of a crime, sentence may be deferred at convenience till some day, or any day in the current term. This is so, because the court ordinarily retains jurisdiction over its judgments for the current term in all eases. Nor have we any doubt that sentence may, in furtherance of the administration of justice, be deferred to some day in the next term or even to some definite time in the second succeeding term (Ex parte United States, 242 U. S. 27, 37 S. Ct. 72, 61 L. Ed. 129, L. R. A. 1917E, 1178, Ann. Cas. 1917B, 355), by an order made in the ease (Miner v. United States, 244 F. 422, 157 C. C. A. 48, 3 A. L. R. 995; Ex parte Singer [C. C. A.] 284 F. 60).” Schwartzberg was discharged from custody by reason of this recognizance, and the surety, Palermo, covenanted that he would not only appear for trial, hut also for judgment. He failed to appear and abide the judgment of the court, and the surety must respond in the pecuniary obligation of his recognizance. In accordance with the views herein expressed, the judgment of the lower court must be, and is, affirmed," }, { "docid": "7698937", "title": "", "text": "however, could change this rule by statute, and we are of the opinion that, by the! provisions of sections 1 and 2 of the Probation Act of March 4,1925 (43 Stat. e. 521 [18 USCA §§ 724, 725]) Congress has extended this power of the courts over their judgments, even after the expiration of the judgment term, in that class of cases where, for conviction of crime, the District Courts were authorized to grant a period of probation. Ackerson v. United States (C. C. A.) 15 F.(2d) 268. The Supreme Court, in construing the Probation Act in United States v. Murray, 275 U. S. 347, 48 S. Ct. 146, 72 L. Ed. 309, held that the District Court had the power to grant probation at any time before execution of sentence had begun but not afterwards. And at page 356 of 275 U. S., 48 S. Ct. 146, 149, it says: “The Probation Act gives power to grant probation to a convict after his conviction or after a plea] of guilty, by suspending the imposition or suspending exeeutioirof the sentence.” This being so, the question is: Whether the District Court, having exercised its power of probation by suspending the execution of sentence, is, on having revoked both the probation and the suspension of execution of sentence, then limited to ordering execution, of the original sentence, or may enter a new or modified one and order its execution. The second paragraph of section 2 (18 USCA § 725, par. 2) provides: “At any time within the probation period the probation officer may arrest the probationer without a warrant, or the'court may issue a warrant for his arrest. Thereupon such probationer shall forthwith be taken before the court. At any time after the probation period, b.ut within the maximum period for which the defendant, might originally have been sentenced, the court may issue a warrant and cause the defendant to be arrested and brought before the court. Thereupon the court may revoke the probation or the suspension of sentence, and may impose .any sentence which might originally have been imposed.” The first" }, { "docid": "21508784", "title": "", "text": "probation system sought in proper cases to avoid, will have already been accomplished. The existing provision for paroles is sufficient to-meet most eases deserving of leniency. The limitations op. the power of the court to alter a sentence, even during the term, when it has gone into execution, are well recognized. See 12 Cyc. 783; In re Lange, 18 Wall. 163, 21 L. Ed. 872. The interference by a judge ’with a closed sentence, after the prisoner has been delivered in execution to the executive authority, is at least so close to an exercise of the pardoning power, which is held to include commutations and conditional pardons (United States v. Wilson, 7 Pet. 150, 8 L. Ed. 640; In re Wells, 18 How. 307, 15 L. Ed. 421), that it should not be attempted, unless on the clearest legislative warrant. I And nothing in the Probation Act to justify me in now seeking to alter the substance of this or any other sentence which is in course-of execution in the penitentiary. 4. The ease must therefore turn on the-question whether, at the time of imposing the-penitentiary sentence, the eourt may provide-for its future suspension after partial execution. No such power at common law has-been shown. Aside from statute, indefinite suspension of a part of a lawful sentence-would seem to labor under the same condemnation applying to a suspension of the whole. Ex parte United States, 242 U. S. 27, 37 S. Ct. 72, 61 L. Ed. 129, L. R. A. 1917E, 1178, Ann. Cas. 1917B, 355. The power, if it exists, must be derived from the source claimed in this sentence, to wit, the Act of March 4, 1925, establishing a system of probation.. The grant of power there is thus phrased: “The courts of the United States having original jurisdiction of criminal actions, except in the District of Columbia, when it. shall appear to the satisfaction of the court that the ends of justice and the best interests of the public, as well as the defendant, will be subserved thereby, shall have power, after conviction or after a plea" }, { "docid": "18442578", "title": "", "text": "charged to him was tbe commission of an offense against tbe United States of which he bad not then been convicted and that the evidence heard by tbe judge did not sufficiently show bis guilt, but this court declined to go into that inquiry. It is further contended that on tbe face of tbe record Campbell should be discharged because there was no valid probation and tbe payment of tbe fine discharged tbe entire sentence, and because tbe effort to re-sentence him to tbe penitentiary on July 25th was without jurisdiction and of no effect. 1. Tbe sentence of May 17th to a fine of $500 and imprisonment for two years was lawful and regular. It was not in tbe alternative, but both punishments were inflicted. The effort to suspend tbe imprisonment was either under tbe Probation Act or independent of it. If tbe latter, as an indefinite suspension of a valid sentence it was beyond tbe power of tbe judge and void. Ex parte United States, 242 U. S. 27, 37 S. Ct. 72, 61 L. Ed. 129, L. R. A. 1917E, 1178, Ann. Cas. 1917B, 355. Viewed as an agreement by tbe court to suspend tbe imprisonment if tbe fine were paid, it would be equally illegal. In paying tbe fine tbe prisoner did no more than be was bound to do in any ease. He did not thereby purchase any right to a discharge of tbe remainder of tbe sentence. There was no legal obstacle on July 25th to enforcing the imprisonment adjudged on May 17th. 2. The order of July 25th recited that the defendant was “paroled” to the marshal on good behavior. Of course, the court could not have granted a technical parole. The effort to do so would be as nugatory as any other unauthorized suspension of sentence and would equally leave the sentence of force. But evidently the court intended a probation, which is authorized by law. If the recital of a probation to the marshal as probation officer be accepted as sufficient evidence that there was at the time of the sentence" } ]

[ { "docid": "15818358", "title": "", "text": "PER CURIAM. It is impossible to consider the order appealed from a final order. For aught that appears, the libelant may have amended its libel, and may, should the amended libel be dismissed, hereafter appeal from that order. A case may not he brought up in fragments (Collins v. Miller, 252 U. S. 364, 370, 40 S. Ct. 347, 64 L. Ed. 616), and this possibility of a later appeal from a dismissal of an amended libel emphasizes the lack of finality of the order now before us. It does not differ from an order sustaining a demurrer with leave to amend; another order of absolute dismissal after expiration of the time allowed for amendment is required to make a final disposition of the cause. Such orders are not appealable. Clark v. Kansas City, 172 U. S. 334, 19 S. Ct. 207, 43 L. Ed. 467; City and County of San Francisco v. McLaughlin, 9 F.(2d) 390 (C. C. A. 9); Western Electric Co. v. Pacent Reproducer Corp. (C. C. A.) 37 F. (2d) 14. As shown by these authorities and many others which might be cited, it is the duty of an appellate court to question its own jurisdiction, though the parties do not. Accordingly, the appeal must be dismissed, and it is so ordered." } ]

[ { "docid": "11973764", "title": "", "text": "and the order appealed from is not a final decision. A final decision is one which ‘puts an end to the suit, deciding all the points in litigation between the parties, leaving nothing to be judicially determined, with nothing remaining to be done, but to enforce by execution what has been determined.’ France & Canada S. S. Co. v. French Republic (C. C. A. 2d) 285 F. 290; 294; U. S. v. Bighorn Sheep Co. (C. C. A. 8th) 2;76 F. 710. ‘When a decree finally decides and disposes of the whole merits of the canse, and reserves no further questions or directions for the future) judgment of the court, so that it will not be necessary to bring’ the cause again before the court for its final decision, it is a final decree.’ Beebe v. Russell, 19 How. 283, 235,15 L. Ed. 668; Steel & Tube Co. of America v. Dingess Run Coal Co. (C. C. A. 4th) 3 F.(2d) 805.” See, also, Scriven v. North (C. C. A.) 134 F. 366 ; Bronx Fire Ins. Co. v. Wasson (C. C. A.) 62 F.(2d) 556; Childs v. Ultramares Corporation (C. C. A.) 40 F.(2d) 474; Weaver v. Atlas Oil Company (C. C. A.) 39 F.(2d) 847; United States v. Amalgamated Sugar Company (C. C. A.) 48 F.(2d) 156, 157; Williams v. Southern Cotton Oil Co. (C. C. A.) 45 F.(2d) 337; Mellon v. Mertz, 58 App. D. C. 303, 30 F.(2;d) 311; Western Electric Co. v. Pacerrfc Reproducer Corporation (C. C. A.) 37 F.(2d) 14; Dyar v. McCandless (C. C. A.) 33 F.(2d) 578. Nor was this interlocutory order appeal-able under 28 USCA § 227. Grand Beach Co. et al. v. Gardner ot al. (C. 0. A.) 34 F.(2d) 836. Even if appealable under) that section, the appeal was not taken within thirty days from the entry of the order, as required by the section. The order appealed from was filed October 19, 1933; the petition for appeal was not filed until January 18, 1934. We are also of the opinion that the Millers, as interveners, were estopjmd from" }, { "docid": "22418113", "title": "", "text": "duty of the Circuit Court of Appeals to consider and pass upon.” Rexford v. Brunswick-Balke Co., 228 U.S. 339, 343-344, 33 S.Ct. 515, 57 L.Ed. 864 (1913); United States v. Vasi-lick, 160 F.2d 631, 632 (3 Cir. 1947). . Berkshire Employees Ass’n, Etc. v. National Labor R. Bd., 121 F.2d 235, 238-239 (3 Cir. 1941). . 102 U.S.App.D.C. 391, 392, 254 F.2d 90, 91 (1958). . North American Airlines v. Civil Aeronautics Board, 100 U.S.App.D.C. 5, 12, 240 F.2d 867, 874 (1956), cert. denied, 353 U.S. 941, 77 S.Ct. 815, 1 L.Ed.2d 760 (1957). . Neisloss v. Bush, 110 U.S.App.D.C. 396, 402, 293 F.2d 873, 879 (1961); Massachusetts Bay Telecasters v. F. C. C., 104 U.S. App.D.C. 226, 261 F.2d 55 (1958); WKAT, Inc. v. F. C. C., 103 U.S.App. D.C. 324, 258 F.2d 418 (1958). . R. A. Holman & Co. v. Securities and Exchange Commission, supra text; and see 17 C.F.R. §§ 200.62, 201.11 (Supp. 1962). . Federal Radio Comm’n v. Nelson Bros. Co., 289 U.S. 266, 277, 53 S.Ct. 627, 72 L.Ed. 1166 (1933). . And not by way of review of the Commission’s orders. Cf. Farmer v. United Electrical, Radio & Machine Workers, 93 U.S.App.D.C. 178, 181, 182, 211 F.2d 36, 39, 40 (1953), cert. denied, 347 U.S. 943, 74 S.Ct. 638, 98 L.Ed. 1091 (1954). . This case does not present a “rule of necessity” situation. Cf. Marquette Cement Mfg. Co. v. Federal Trade Commission, 147 F.2d 589, 593, 594 (7 Cir. 1945). And see Federal Trade Comm’n v. Cement Institute, 333 U.S. 683, 700, 703, 68 S.Ct. 793, 92 L.Ed. 1010 (1948). . 15 U.S.C.A. § 78b. . It may be noted the Commission in April 11, 1962 order deemed it advisable1 to issue a “restatement of relevant issues” and otherwise defined the future scope of the proceedings and the nature of the evidence deemed relevant to its purposes. It is not our function nor within the ambit of our authority with the case in its present posture to pass on that order, and we expressly refrain from doing so. Should new proceedings be" }, { "docid": "9956230", "title": "", "text": "proceeds as to others, is so manifestly inapplicable that we would not mention it if appellants had not. Similarly inapplicable is the rule in Forgay v. Conrad, 1848, 6 How. 201, 12 L.Ed. 404, that a judgment directing a defendant to make immediate delivery of property to a plaintiff is appealable despite a further provision for an accounting. The scope of this doctrine is narrow and rests upon “the potential factor of irreparable injury,” 6 Moore, Federal Practice (1953 ed.), p. 129 — just how narrow is shown by decisions refusing to apply it to a decree that adjudged rights in property but made no disposition of the property pending a further hearing relating to its precise identification, Rexford v. Brunswick-Balke-Collender Co., 1913, 228 U.S. 339, 33 S.Ct. 515, 57 L.Ed. 864, or to a decree awarding possession to the United States under eminent domain but reserving the question of compensation, Catlin v. United States, supra, 324 U.S. at page 232, 65 S.Ct. at page 633, overruling our contrary decision in United States v. 243.22 Acres of Land, 2 Cir., 1942, 129 F.2d 678. See Republic Natural Gas Co. v. State of Oklahoma, 1948, 334 U.S. 62, 68 S.Ct. 972, 92 L.Ed. 1212. Here, while we understand defendants’ dislike of presenting a plan of desegregation and attending hearings thereon that would be unnecessary if the finding of liability were ultimately to be annulled, and also the possibly unwarranted expectations this course may create, this is scarcely injury at all in the legal sense and surely not an irreparable one. Equally inapposite is the doctrine of Cohen v. Beneficial Industrial Loan Corp., 1949, 337 U.S. 541, 545-547, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528, also advanced by appellants, permitting review of orders “which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” Here the issue sought to be reviewed, far from being collateral to the main litigation, represents the" }, { "docid": "23604892", "title": "", "text": "U.S. 429, 431, 1 S.Ct. 414, 27 L.Ed. 237; Dainese v. Kendall, 119 U.S. 53, 7 S.Ct. 65, 30 L.Ed. 305; Covington v. First National Bank [of- Covington], 185 U.S. 270, 277, 22 S.Ct. 645, 46 L.Ed. 906; Heike v. United States, 217 U.S. 423, 429, 30 S. Ct. 539, 54 L.Ed. 821; Rexford v. Brunswick-Balke-Collender Co., 228 U.S. 339, 346, 33 S.Ct. 515, 57 L.Ed. 864. And the rule requires that the judgment to be appealable should be final not only as to all the parties, but as to the whole subject-matter and as to all the causes of action involved. Louisiana Navigation Co. v. Oyster Commission, 226 U.S. 99, 101, 33 S.Ct. 78, 57 L.Ed. 138; Sheppy v. Stevens [2 Cir.], 200 F. 946. The seeming exception to this rule by which an adjudication final in its nature of matters distinct from the general subject of the litigation, like a claim to property presented by intervening petition in a receivership proceeding, has been treated as final, so as to authorize an appeal without awaiting the termination of the general litigation below ([Central] Trust Co. v. Grant Locomotive Works, 135 U. S. 207, 224, 10 S.Ct. 736, 34 L.Ed. 97; Williams v. Morgan, 111 U.S. 684, 699, 4 S.Ct. 638, 28 L.Ed. 559; Trustees v. Greenough, 105 U.S. 527, 26 L.Ed. 1157), has no application here. Nor have cases like Forgay v. Conrad, 6 How. 201, 204, 12 L.Ed. 404, and Thomson v. Dean, 7 Wall. 342, 345, 19 L.Ed. 94, where decrees finally disposing of property which the successful party was entitled to have carried into execution immediately, were held appealable, although certain accounts pursuant to the decree remained to be settled.” See, also, Humphrey’s Executor v. United States, 295 U.S. 602, 607, 55 S.Ct. 869, 79 L.Ed. 1611; Myers v. United States, 272 U.S. 52, 142, 143, 47 S.Ct. 21, 71 L.Ed. 160; O’Donoghue v. United States, 289 U.S. 516, 546, 550, 53 S.Ct. 740, 77 L.Ed. 1356; Weyerhaeuser v. Hoyt, 219 U.S. 380, 394, 31 S.Ct. 300, 55 L.Ed. 258; Taylor v. Voss, 271 U.S. 176," }, { "docid": "2426614", "title": "", "text": "to determine at said time or other time to be fixed, whether the division proposed to be made, as set forth in said plan and agreement of reorganization, to the Rich-field and Pan American Bondholders and Richfield Unsecured Creditors is fair and equitable; and also specifically reserves jurisdiction to pass upon and determine the reasonableness of the charges to be made by the Deposit Committees and by said Reorganization Committee for expenses and compensation for services for themselves, their counsel and employees.” In support of the conclusion we have reached we cite the following cases without discussion: Rector v. U. S. (C. C. A. 8) 20 F.(2d) 845; Crooker v. Knudsen (C. C. A. 9) 232 F. 857; Rubaiz v. Tucson Gas, etc., Co. (C. C. A. 9) 280 F. 267; Morgan v. Thompson (C. C. A.) 124 F. 203; Parsons v. Robinson, 122 U. S. 112, 7 S. Ct. 1153, 30 L. Ed. 1122; Guarantee Co. v. Mechanics’ Sav., etc., Co., 173 U. S. 582, 19 S. Ct. 551, 43 L. Ed. 818; Rexford v. Brunswick-Balke-Collender Co., 228 U. S. 339, 33 S. Ct. 515, 57 L. Ed. 864; Miller v. Pyrites Co. (C. C. A. 4) 71 F.(2d) 804. Appeal dismissed." }, { "docid": "11973763", "title": "", "text": "filed, not in the stated amount of dollars, but in francs and pounds, one being for 51,020 francs and the other for 1,459 pounds, 1 shilling, and 8 pence. In considering the appeal of C. Wilbur Miller and Ernest B. Miller from the first order entered, which order denied the motion of the Millers to dismiss the bill and also denied the motion to have the plaintiff’s claim referred to the law side of the court fox trial by a jury, we are of the opinion that this decree was interlocutory and therefore not appealable. All of the decisions we have found are to the effect that an. order denying a motion to dismiss is interlocutory. In Cox v. Graves, Knight & Graves, Ine., 55 F.(2d) 217, 218', Judge Parker, of this court said: “It is clear that the motion must be allowed. Our appellate jurisdiction rests upon section 128 of the Judicial Code (28 USCA § 225), and, with certain exceptions not here material, it extends only to final decisions of the court below, and the order appealed from is not a final decision. A final decision is one which ‘puts an end to the suit, deciding all the points in litigation between the parties, leaving nothing to be judicially determined, with nothing remaining to be done, but to enforce by execution what has been determined.’ France & Canada S. S. Co. v. French Republic (C. C. A. 2d) 285 F. 290; 294; U. S. v. Bighorn Sheep Co. (C. C. A. 8th) 2;76 F. 710. ‘When a decree finally decides and disposes of the whole merits of the canse, and reserves no further questions or directions for the future) judgment of the court, so that it will not be necessary to bring’ the cause again before the court for its final decision, it is a final decree.’ Beebe v. Russell, 19 How. 283, 235,15 L. Ed. 668; Steel & Tube Co. of America v. Dingess Run Coal Co. (C. C. A. 4th) 3 F.(2d) 805.” See, also, Scriven v. North (C. C. A.) 134 F. 366 ; Bronx" }, { "docid": "4335999", "title": "", "text": "relief. Herrup v. Stoneham, 15 F.(2d) 49 (C. C. A. 2); France & Canada S. S. Co. v. French Republic, 285 F. 290 (C. C. A. 2); Gas & Electric Securities Co. v. Manhattan & Queens Traction Corporation, 266 F. 625, 632 (C. C. A. 2). These principles have been applied to interlocutory rulings of administrative tribunals. Chamber of Commerce of Minneapolis v. Federal Trade Commission, 280 F. 45 (C. C. A. 8). We do not think that Congress intended by any provision of this act to permit reviews by the Circuit Courts of Appeals of interlocutory and procedural orders entered by the Securities and Exchange Commission. The stop order hearings authorized by the act are summary proceedings for the protection of investors against misrepresentation and omissions of a registration statement. We think it is when a final order is entered as a result of the hearings that the act intends the appellant might have a right of review of that determination. No order under section 8 (b) of the act (15 USCA § 77h, subd. (b) was entered and the registration here became effective May 24th. It remained effective since no stop order was issued under section 8 (d), 15 USCA § 77h, subd. (d). Under such circumstances the denial of a motion to withdraw the registration reflected no injury upon the appellant. The motion to dismiss the petition to review is granted. Appellant appeals from an order directing him to appear and testify before the commission regarding his registration statement. It was entered pursuant to section 22 (b) of the act (15 USCA § 77v, subd. (b). The answer of the appellant sets up the invalidity of the statute on constitutional grounds and also denies jurisdiction of the commission to make the application after his motion to dismiss. If he could withdraw his registration by a mere request, it would end the effect of filing it and there is no authority under section 19 (b), 15 USCA § 77s, subd. (b) to issue the commission subpoena and it could not be enforced by order of the District Court" }, { "docid": "4335998", "title": "", "text": "8 (e) provide for the entry of a stop order suspending the effectiveness of the registration statement at any time. Notice of hearings and proceedings under these sections must be given, and the commission must make a final determination of fact before such orders may be entered. They would then become final orders of the commission. The order sought here to be reviewed is not of either type. It is an interlocutory ruling in the proceeding and hearing which was within the control of the commission as a tribunal until some final determination was made. Interlocutory orders of a court are not reviewable except where it has been provided by statutory authority. Illustration of this is the jurisdiction of this court provided for by section 128 of the Judicial Code (28 U. S. C. § 225 [28 USCA § 225]), which provides that the Circuit Court of Appeals may review only final decisions of the District Court and certain enumerated interlocutory orders or decrees granting, refusing, or modifying interlocutory injunctions and receiverships or involving extraordinary relief. Herrup v. Stoneham, 15 F.(2d) 49 (C. C. A. 2); France & Canada S. S. Co. v. French Republic, 285 F. 290 (C. C. A. 2); Gas & Electric Securities Co. v. Manhattan & Queens Traction Corporation, 266 F. 625, 632 (C. C. A. 2). These principles have been applied to interlocutory rulings of administrative tribunals. Chamber of Commerce of Minneapolis v. Federal Trade Commission, 280 F. 45 (C. C. A. 8). We do not think that Congress intended by any provision of this act to permit reviews by the Circuit Courts of Appeals of interlocutory and procedural orders entered by the Securities and Exchange Commission. The stop order hearings authorized by the act are summary proceedings for the protection of investors against misrepresentation and omissions of a registration statement. We think it is when a final order is entered as a result of the hearings that the act intends the appellant might have a right of review of that determination. No order under section 8 (b) of the act (15 USCA § 77h," }, { "docid": "16077241", "title": "", "text": "complainant on such accounting have the right to cause an examination of the boohs, records, data, agents, servants, workmen, or other witnesses as may be necessary or advisable in the taking of said accounting, and to cause the production of such books, records, data, and witnesses before said Master from time to time as such Master shall direct. “That the plaintiff have judgment and execution against the defendants and the property of the defendants for such amount or amounts as the Master’s report shall show is due to the plaintiff, provided said Master’s report is approved by this court. “It is so ordered.” A Circuit Court of Appeals is bound to inquire as to its own jurisdiction of a-eause brought before it by appeal, even tho the question is not raised by the parties. Kansas City Southern Railway Company v. Prunty (C. C. A.) 133 F. 13; Security Mutual Life Insurance Company v. Harwood (C. C. A.) 16 F.(2d) 250; Equitable Life Assurance Society of U. S. v. Rayl (C. C. A.) 16 F.(2d) 68. Where the reference to the master is for the determination by an account of the amount which the defendant is to pay, though the court has decided that the defendant is liable, the decree does not determine the extent of the plaintiff’s rights and it is not final. Barnard et al. v. Gibson, 48 U. S. (7 How.) 650,12 L. Ed. 857; Parsons v. Robinson, 122 U. S. 112, 7 S. Ct. 1153, 30 L. Ed. 1122; Lodge v. Twell, 135 U. S. 232,10 S. Ct. 745, 34 L. Ed. 153; Latta v. Kilbourn, 150 U. S. 524,14 S. Ct. 201, 37 L. Ed. 1169; California National Bank v. Stateler, 171 U. S. 447, 19 S. Ct. 6, 43 L. Ed. 233; Southern Railway Company v. Postal Telegraph-Cable Company, 179 U. S. 641, 21 S. Ct. 249, 45 L. Ed. 355; Macfarland v. Brown, 187 U. S. 239, 23 S. Ct. 105, 47 L. Ed. 159; Rexford v. Brunswick-Balke-Collender Company, 228 U. S. 339, 33 S. Ct. 515, 57 L. Ed. 864; Mercantile Trust Co." }, { "docid": "23604891", "title": "", "text": "May 11, 1942, 62 S.Ct. 1085, 86 L.Ed. —; Collins v. Metro-Goldwyn Pictures Corp., 2 Cir., 106 F.2d 83; Rosenblum v. Dingfelder, 2 Cir., 111 F.2d 408; Atwater v. North American Coal Corp., supra; Sidis v. F-R Pub. Corp., 2 Cir., 113 F.2d 806, 138 A.L.R. 15. Cf. 3 Moore, Federal Practice, 1941, Supplement, 92 — 100, 185 — 186; United States v. Florian, 312 U.S. 656, 61 S.Ct. 713, 85 L.Ed. 1105, reversing Florian v. United States, 7 Cir., 114 F.2d 990. Collins v. Metro-Goldwyn Pictures Corp., supra. In Collins v. Miller, supra [252 U.S. 364, 40 S.Ct. 349, 64 L.Ed. 616], the court said: “A case may not be brought here by appeal or writ of error in fragments. To be appealable, the judgment must be, not only final, but complete. United States v. Girault, 11 How. 22, 32, 13 L.Ed. 587; Holcombe v. McKusick, 20 How. 552, 554, 15 L.Ed. 1020; Bostwick v. Brinkerhoff, 106 U.S. 3, 4, 1 S.Ct. 15, 27 L.Ed. 73; Grant v. Phœnix [Mut. Life] Ins. Co., 106 U.S. 429, 431, 1 S.Ct. 414, 27 L.Ed. 237; Dainese v. Kendall, 119 U.S. 53, 7 S.Ct. 65, 30 L.Ed. 305; Covington v. First National Bank [of- Covington], 185 U.S. 270, 277, 22 S.Ct. 645, 46 L.Ed. 906; Heike v. United States, 217 U.S. 423, 429, 30 S. Ct. 539, 54 L.Ed. 821; Rexford v. Brunswick-Balke-Collender Co., 228 U.S. 339, 346, 33 S.Ct. 515, 57 L.Ed. 864. And the rule requires that the judgment to be appealable should be final not only as to all the parties, but as to the whole subject-matter and as to all the causes of action involved. Louisiana Navigation Co. v. Oyster Commission, 226 U.S. 99, 101, 33 S.Ct. 78, 57 L.Ed. 138; Sheppy v. Stevens [2 Cir.], 200 F. 946. The seeming exception to this rule by which an adjudication final in its nature of matters distinct from the general subject of the litigation, like a claim to property presented by intervening petition in a receivership proceeding, has been treated as final, so as to authorize an appeal without" }, { "docid": "13057480", "title": "", "text": "189; Rexford v. Brunswick-Balke-Collender Co., 228 U.S. 339, 345-346, 33 S.Ct. 515, 57 L.Ed. 864; Guarantee Co. of North America v. Mechanics’ Savings Bank & Trust Co., 173 U.S. 582, 19 S.Ct. 551, 43 L.Ed. 818; Latta v. Kilbourn, 150 U.S. 524, 14 S.Ct. 201, 37 L.Ed. 1169; Parsons v. Robinson, 122 U.S. 112, 7 S. Ct. 1153, 30 L.Ed. 1122. Cf. Larsen v. Wright & Cobb Lighterage Co., 2 Cir., 167 F.2d 320, 323; Pang-Tsu Mow v. Republic of China, 91 U.S.App.D.C. 324, 201 F.2d 195, 197; see 6 Moore’s Federal Practice, U54.12. . Doeskin Products v. United Paper Co., 7 Cir., 195 F.2d 356, 360-361, is inapplicable since that case dealt with the scope of an appeal from an interlocutory order granting a preliminary injunction prior to trial on the merits. . 'Cf.' 6 Moore’s Federal Practice, 154.13. . Cf. 6 Moore’s Federal Practice, 154.32. . Throughout this opinion numerical references to the Conclusions below are those used in the summary thereof set forth in the fore part of this opinion, which obviously do not correspond with the numerical references carried in the text of. the conclusions and decree as filed below." }, { "docid": "21714256", "title": "", "text": "PER CURIAM. On a default by the defendants the plaintiff entered a decree of infringement of patent. This motion is to- set aside that decree. An order was entered below denying the motion to set aside the decree entered. This appeal is not from the decree, but from the order. Discretionary orders are not appealable. Roemer v. Bernheim, 132 U. S. 103, 10 S. Ct. 12, 33 L. Ed. 277; Dean v. Mason, 20 How. 198, 15 L. Ed. 876; Mobile Shipbuilding Co. v. Federal Bridge &. S. Co., 280 F. 292 (C. C. A. 7); Connor v. Peugh’s Lessee, 18 How. 394, 15 L. Ed. 432; Cambuston v. United States, 95 U. S. 285, 24 L. Ed. 448. The authority relied on by the defendants, Zadig v. Aetna Ins. Co., 42 F.(2d) 142 (C. C. A. 2), involved a dismissal for lack of prosecution. The court considered the order of dismissal as if a final decree. We held that the trial court’s refusing to consider the mption on the merits was not an exercise of discretion, but rather passing upon the want of jurisdiction. We held the order final and appealable. Such orders are appealable. Mandel Bros. v. Victory Belt Co., 15 F.(2d) 610 (C. C. A. 7); Marion County Court v. Ridge, 13 F.(2d) 969 (C. C. A. 4); United States v. Trogler, 237 F. 181 (C. C. A. 8). Motion to dismiss appeal granted." }, { "docid": "13057479", "title": "", "text": "Zwack and his wife Dora, by letters from Hungary, at first disassociated themselves from the suit but Judge Palmieri disregarded these letters as coerced. Subsequently Bela and Dora loft Hungary and on motion before this court they were granted the right to appear as parties plaintiff to the action. The action came to the court below by removal from a New York state court. . -This; conclusion does not state the date on. -Hihieh,- the,.¡plaintiffs-' became able to rnanufaetia-re>. in the United States. . Finding 51 recites .that “In 1950, the plaintiff * * * bad procured financial backing for the manufacture of Zwack liqueurs * * . In another pre-trial order reported at D.C., 97 F.Supp. 719, the plaintiffs’ motion for a preliminary injunction was denied. . See Bourdieu v. Pacific Western Oil Co., 1936, 299 U.S. 65, 70, 57 S.Ct. 51, 81 L.Ed. 42. . George v. Victor Talking Machine Co., 293 U.S. 377, 55 S.Ct. 229, 79 L.Ed. 439; Deckert v. Independence Shares Corp., 311 U.S. 282, 61 S.Ct. 229, 85 L.Ed. 189; Rexford v. Brunswick-Balke-Collender Co., 228 U.S. 339, 345-346, 33 S.Ct. 515, 57 L.Ed. 864; Guarantee Co. of North America v. Mechanics’ Savings Bank & Trust Co., 173 U.S. 582, 19 S.Ct. 551, 43 L.Ed. 818; Latta v. Kilbourn, 150 U.S. 524, 14 S.Ct. 201, 37 L.Ed. 1169; Parsons v. Robinson, 122 U.S. 112, 7 S. Ct. 1153, 30 L.Ed. 1122. Cf. Larsen v. Wright & Cobb Lighterage Co., 2 Cir., 167 F.2d 320, 323; Pang-Tsu Mow v. Republic of China, 91 U.S.App.D.C. 324, 201 F.2d 195, 197; see 6 Moore’s Federal Practice, U54.12. . Doeskin Products v. United Paper Co., 7 Cir., 195 F.2d 356, 360-361, is inapplicable since that case dealt with the scope of an appeal from an interlocutory order granting a preliminary injunction prior to trial on the merits. . 'Cf.' 6 Moore’s Federal Practice, 154.13. . Cf. 6 Moore’s Federal Practice, 154.32. . Throughout this opinion numerical references to the Conclusions below are those used in the summary thereof set forth in the fore part of this opinion, which obviously" }, { "docid": "23303087", "title": "", "text": "Ry. Co., 194 F. 861 (C. C. A. 7). But, in any event, we should not regard the incident as constituting reversible error. We now reach the appellant’s most -serious grounds of attack upon the judgment, based upon the claim of sovereign immunity. It is asserted that no judgment can be entered against a foreign sovereign government without its consent, and that consent to litigate its own claim against a defendant does not subject it to an affirmative judgment upon a counterclaim. French Republic v. Inland Nav. Co., 263 F. 410 (D. C. Mo.); In re Patteason-McDonald Shipbuilding Co., 293 F. 192 (C. C. A. 9). And see People v. Dennison, 84 N. Y. 272; Kingdom of Roumania v. Guaranty Trust Co., 250 F. 341, 343 (C. C. A. 2); The Siren, 7 Wall. (74 U. S.) 152, 154, 19 L. Ed. 129; United States v. Eckford, 73 U. S. 484, 18 L. Ed. 920. Cf. United States v. The Thekla, 266 U. S. 328, 45 S. Ct. 112, 69 L. Ed. 313: It is then contended that the same principle of sovereign immunity applies to the property or to the agencies of a sovereign, citing Berizzi Bros. Co. v. S. S. Pesaro, 271 U. S. 562, 46 S. Ct. 611, 70 L. Ed. 1088; Ex parte State of New York, 256 U. S. 490, 41 S. Ct. 588, 65 L. Ed. 1057; Mason v. Intercolonial Railways of Canada, 197 Mass. 349, 83 N. E. 876, 16 L. R. A. (N. S.) 276, 125 Am. St. Rep. 371, 14 Ann. Cas. 574; De Simone v. Transportes Maritimos Do Estado, 199 App. Div. 602, 191 N. Y. S. 864; Oliver American Trading Co. v. Mexico et al., 5 F.(2d) 659 (C. C. A. 2). And from this premise the conclusion is urged that error was committed in the order of May 29, 1925, which struck out, from the Railways’ reply to the amended counterclaim, its assertion that plaintiff was an agency of the kingdom of Sweden, and as such entitled to sovereign immunity. To this contention the defendant answers, first, that" }, { "docid": "6399697", "title": "", "text": "PER CURIAM. This is an appeal by plaintiff from a decree in a suit brought to foreclose a trust deed securing an issue of corporate bonds of the Grand Beach Com pany. The decree adjudged, among other things, that the rate of interest borne by the bonds was usurious under the laws of Illinois, and required the deduction from the principal of the bonds of all interest paid thereon. Appeal was taken 67 days after entry of decree. We think the decree not final, and not appealable as such. The' applicable rule is that a final judgment or decree is one whieh puts an end to the suit, deciding all points in the litigation between the parties, leaving nothing to be judicially determined, with nothing 'remaining to be done, but to enforce by execution what has been determined. Arnold v. Guimarin, 263 U. S. 427, 432, et seq., 44 S. Ct. 144, 68 L. Ed. 371; France, etc., Co. v. French Republic (C. C. A. 2) 285 F. 290; Maas v. Lonstorf (C. C. A. 6) 166 F. 41, 43; Puritan Mills v. Sampson Works (C. C. A. 6) 232 F. 138, 139; Cutting v. Woodward (C. C. A. 9) 234 F. 307, 309, 310. We think it clear that the decree did not finally dispose of the entire controversy, nor was it intended to do so. The errors assigned relate, respectively, to the adjudication as to usury, the alleged refusal to allow or decree foreclosure of the trust deed, and the giving to the receiver appointed by the decree a first lien (and thus, plaintiff says, superior to the-lien of the trust deed) upon the assets of the Grand Beach Company for defendants’ expenses and charges of the receivership arising from the conduct and/or operation of the business of that company and/or the Land-Owners’ Association. We think the receivership related to the pendency of the foreclosure suit, and that it was interlocutory only, and so, under section 129 of the Judicial Code (28 USCA § 227) was appealable only within 30 days. As to the first and second assignments:" }, { "docid": "22418112", "title": "", "text": "L.Ed. 942 (1955). . And see 28 U.S.C. § 455 (1958) : “Any justice or judge of the United States shall disqualify himself in any case in which he has a substantial interest, has been of counsel, is or has been a material witness, or is so related to or connected with any party or his attorney as to render it improper, in his opinion, for him to sit on the trial, appeal, or other proceeding therein.” The manifest purpose of the statute “is to require that the Circuit Court of Appeals be composed in every hearing of judges none of whom will be in the attitude of passing upon the propriety, scope or effect of any ruling of his own made in the progress of the cause in the court of first instance, and to this end the disqualification is made to arise, not only when the judge has tried or heard the whole cause in the court below, but also when he has tried or heard any question therein which it is the duty of the Circuit Court of Appeals to consider and pass upon.” Rexford v. Brunswick-Balke Co., 228 U.S. 339, 343-344, 33 S.Ct. 515, 57 L.Ed. 864 (1913); United States v. Vasi-lick, 160 F.2d 631, 632 (3 Cir. 1947). . Berkshire Employees Ass’n, Etc. v. National Labor R. Bd., 121 F.2d 235, 238-239 (3 Cir. 1941). . 102 U.S.App.D.C. 391, 392, 254 F.2d 90, 91 (1958). . North American Airlines v. Civil Aeronautics Board, 100 U.S.App.D.C. 5, 12, 240 F.2d 867, 874 (1956), cert. denied, 353 U.S. 941, 77 S.Ct. 815, 1 L.Ed.2d 760 (1957). . Neisloss v. Bush, 110 U.S.App.D.C. 396, 402, 293 F.2d 873, 879 (1961); Massachusetts Bay Telecasters v. F. C. C., 104 U.S. App.D.C. 226, 261 F.2d 55 (1958); WKAT, Inc. v. F. C. C., 103 U.S.App. D.C. 324, 258 F.2d 418 (1958). . R. A. Holman & Co. v. Securities and Exchange Commission, supra text; and see 17 C.F.R. §§ 200.62, 201.11 (Supp. 1962). . Federal Radio Comm’n v. Nelson Bros. Co., 289 U.S. 266, 277, 53 S.Ct. 627, 72 L.Ed." }, { "docid": "16077242", "title": "", "text": "Where the reference to the master is for the determination by an account of the amount which the defendant is to pay, though the court has decided that the defendant is liable, the decree does not determine the extent of the plaintiff’s rights and it is not final. Barnard et al. v. Gibson, 48 U. S. (7 How.) 650,12 L. Ed. 857; Parsons v. Robinson, 122 U. S. 112, 7 S. Ct. 1153, 30 L. Ed. 1122; Lodge v. Twell, 135 U. S. 232,10 S. Ct. 745, 34 L. Ed. 153; Latta v. Kilbourn, 150 U. S. 524,14 S. Ct. 201, 37 L. Ed. 1169; California National Bank v. Stateler, 171 U. S. 447, 19 S. Ct. 6, 43 L. Ed. 233; Southern Railway Company v. Postal Telegraph-Cable Company, 179 U. S. 641, 21 S. Ct. 249, 45 L. Ed. 355; Macfarland v. Brown, 187 U. S. 239, 23 S. Ct. 105, 47 L. Ed. 159; Rexford v. Brunswick-Balke-Collender Company, 228 U. S. 339, 33 S. Ct. 515, 57 L. Ed. 864; Mercantile Trust Co. of New York v. Chicago, Pittsburgh & St. Louis Railway Co. (C. C. A.) 123 F. 389 ; Steel & Tube Co. of America v. Dingess Rum Coal Co. (C. C. A.) 3 F.(2d) 805. The appellate jurisdiction of Circuit Courts of Appeals is wholly statutory, Em-lenton Refining Company v. Chambers (C. C. A.) 14 F.(2d) 104; and they have no authority to review by appeal any decision of the District Courts which is not a final decision, subject to certain exceptions which have no bearing on this case, 28 USCA § 225. The decree entered by the District Court in the instant ease is not a final decision as contemplated by the statute, and hence there is no right of appeal from it. The appeal is dismissed, and the costs thereof are decreed against the appellants." }, { "docid": "23353679", "title": "", "text": "is true that the statute requires that suit for the infringement of letters patent shall be brought in the district of which defendant is a resident, or has committed acts of infringement and has a regular and established place of business. Judicial Code § 48, 28 USCA § 109; W. S. Tyler Co. v. Ludlow-Saylor Wire Co., 236 U. S. 723, 35 S. Ct. 458, 59 L. Ed. 808; Winterbottom v. Casey (D. C.) 283 F. 518. And the fact that one has assumed and is' conducting the defense of a patent infringement suit in behalf of the defendant does not justify his being made a party defendant in derogation of this statute. Freeman-Sweet Co. v. Luminous Unit Co. (C. C. A. 7th) 264 F. 107; Van Kannel Revolving Door Co. v. Winton Hotel Co. (D. C.) 263 F. 988; Parsons Non-Skid Co. v. E. J. Willis Co. (C. C.) 176 F. 176; Bidwell v. Toledo Consol. St. R. Co. (C. C.) 72 F. 10; Radio Corporation of America v. E. J. Edmond & Co. (D. C.) 20 F.(2d) 929. This statutory provision, however, does not affect the jurisdiction of the court, which is conferred by section 24(7) of the Judicial Code, 28 USCA § 41 (7). Its effect is to confer a privilege personal to the defendant, which he may waive. He waives it if he does not, prior to entering a general appearance in the action, take objection in the proper form to the jurisdiction of the court over him. Sandusky Foundry & Machine Co. v. De Lavaud (D. C.) 251 F. 631; Victor Talking Machine Co. v. Brunswick-Balke-Collender Co. (D. C.) 279 F. 758; U. S. Expansion Bolt Co. v. H. G. Kroncke Hardware Co. (D. C.) 216 F. 186; Thomson-Houston Electric Co. v. Electrose Mfg. Co. (C. C.) 155 F. 543; In re Moore, 209 U. S. 490, 501 et seq., 28 S. Ct. 585, 52 L. Ed. 904, 14 Ann. Cas. 1164; Thames & Mersey Marine Ins. Co. v. U. S., 237 U. S. 19, 35 S. Ct. 496, 59 L. Ed. 821, Ann. Cas." }, { "docid": "11731269", "title": "", "text": "the trial court has become res ad judicata, no appeal having been taken by plaintiff company; and that the finding shows that the plaintiff company does not come into equity with clean hands. The short answer to this contention is that the matter has not become res adjudicata, because the decree was not a final one. Defendants could appeal, however, from the interlocutory decree in reference to th’e injunction by virtue of 28 USCA § 227 (Ex parte Nat. Enameling, etc., Co., 201 U. S. 156, 26 S. Ct. 204, 50 L. Ed. 707; Myles Standish Mfg. Co. v. Champion Spark Plug Co., 282 F. 961 [C. C. A. 8]); but the decree not being a final one, plaintiffs could not appeal in reference to the counterclaim. Keystone, etc., Iron Co. v. Martin, 132 U. S. 91, 10 S. Ct. 32, 33 L. Ed. 275; Winters v. Ethell, 132 U. S. 207, 10 S. Ct. 56, 33 L. Ed. 339; McGourkey v. Toledo & O. Ry. Co., 146 U. S. 536, 13 S. Ct. 170, 36 L. Ed. 1079; Latta v. Kilbourn, 150 U. S. 524, 14 S. Ct. 201, 37 L. Ed. 1169; Pittsburgh, etc., Ry. Co. v. B. & O. R. Co. (C. C. A.) 61 F. 705; Odbert v. Marquet (C. C. A.) 175 F. 44; Emery v. Central Tr. & Safe Dep. Co. (C. C. A.) 204 F. 965; Cutting v. Woodward (C. C. A.) 234 F. 307; Radio Corp. v. J. H. Bunnell & Co. (C. C. A.) 298 F. 62; Steel & Tube Co. v. Dingess Rum Coal Co. (C. C. A.) 3 F.(2d) 805. The decree of the trial court holding the patents valid and infringed, granting an injunction, and ordering an accounting covering the infringement, was correct, and it is accordingly affirmed. Sept. 3, 1923. Mr. A. S. Hill, Gen. Mgr., Buckeye Incubator Company, Springfield, Ohio. Dear Mr. Hill: Your letter of the 31st ult. re’d and note what you have to say about the New-town Giant machines. I am going to make you one more proposition on the exchange of my" }, { "docid": "15683655", "title": "", "text": "674, 19 S. Ct. 827, 43 L. Ed. 1130; Ballentyne v. Smith, 205 U. S. 285, 27 S. Ct. 527, 51 L. Ed. 803; In re Metropolitan Ry. Receivership, 208 U. S. 90, 28 S. Ct. 219, 52 L. Ed. 403; Northern Pac. R. Co. v. Boyd, 228 U. S. 482, 33 S. Ct. 554, 57 L. Ed. 931; Kansas City S. R. Co. v. Guardian Trust Co., 240 U. S. 166, 36 S. Ct. 334, 60 L. Ed. 579; Waller v. Texas & P. R. Co., 245 U. S. 398, 38 S. Ct. 142, 62 L. Ed. 362; Southern Pac. Co. v. Bogert, 250 U. S. 483, 39 S. Ct. 533, 63 L. Ed. 1099; Kansas City Terminal R. Co. v. Central Union Trust Co., 271 U. S. 445, 46 S. Ct. 549, 70 L. Ed. 1028; Home B. & L. Ass’n v. Blaisdell, 290 U. S. 398, 54 S. Ct. 231, 78 L. Ed. 413, 88 A. L. R. 1481; First Nat. Bank v. Flershem, 290 U. S. 504, 54 S. Ct. 298, 78 L. Ed. 465. 90 A. L. R. 391; Magann v. Segal, 92 F. 252 (C. C. A. 6) ; Merchants’ Loan & Trust Co. v. Chicago Railways Co., 158 F. 923 (C. C. A. 7) ; Investment Registry, Limited, v. Chicago, etc, R. Co, 212 F. 594 (C. C. A. 7) ; In re Howell, 215 F. 1 (C. C. A. 2); Guaranty Trust Co. v. International Steam Pump Co., 231 F. 594 (C. C. A. 2); Fearon v. Bankers’ Trust Co, 238 F. 83 (C. C. A. 3); Simon v. New Orleans, etc., R. Co, 242 F. 62 (C. C. A. 5); Painter v. Union Trust Co, 246 F. 240 (C. C. A. 6); U. S. & Mexican Trust Co. v. U. S. & Mexican Trust Co., 250 F. 377 (C. C. A. 8); Graselli Chemical Co. v. Aetna Explosives Co., 252 F. 456 (C. C. A. 2); Lane v. Equitable Trust Co., 262 F. 918 (C. C. A. 8); Phipps v. Chicago, etc., R. Co, 284 F. 945, 28 A. L. R." } ]

[ { "docid": "22173244", "title": "", "text": "the case held a hearing on December 21, 1993, at which time Marcu and the Immigration and Naturalization Service (INS) presented evidence. On March 14, 1994, the immigration judge denied relief. Marcu appealed to the BIA, which affirmed the immigration judge on September 24, 1996, holding that Marcu was not eligible for asylum because he did not have a well-founded fear of future persecution, given the massive governmental changes in Romania in the past decade. II Marcu first petitions for review on the ground that the BIA’s determination of ineligibility for asylum is not supported by substantial evidence. Our review of the BIA’s determination of ineligibility for asylum is extremely narrow. That determination must be upheld if “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” 8 U.S.C. § 1105a(a)(4). This is a highly deferential standard of review. “To reverse the BIA finding we must find that the evidence not only supports that conclusion, but compels it____” INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (emphasis in original). “To establish eligibility on the basis of a ‘well-founded fear of persecution,’ ” Mar-eu must demonstrate both an objectively reasonable and subjectively genuine fear. Fisher v. INS, 79 F.3d 955, 960 (9th Cir.1996) (en banc) {Fisher). If an applicant demonstrates that he has suffered past persecution, a rebuttable presumption of a well-founded fear of future persecution will be triggered. See 8 C.F.R. § 208.13(b)(l)(i). The INS can rebut this presumption by showing, by a preponderance of the evidence, that conditions “have changed to such an extent that the applicant no longer has a well-founded fear of being persecuted if he or she were to return.” Id. In this case, the BIA appeared to assume that Mareu had demonstrated subjectively genuine fear of future persecution. It held, however, that he had failed to demonstrate objectively reasonable fear of such persecution and thus was not eligible for asylum. We must determine whether the evidence present in this record compels reversal of the BIA’s determination of ineligibility. That is the only issue" } ]

[ { "docid": "22416986", "title": "", "text": "nothing further, the matter is continued to 1:00. Thank you. Two hours later, Tawadrus returned alone for his merits hearing, and was recorded as pro se on the record. The majority of his documents in support of his claim were not admitted by the IJ after the government objected based on' failure to properly certify under 8 C.F.R. § 3.33. After the hearing, in which the IJ first questioned Tawadrus, followed by the government lawyer, the IJ issued a decision denying Tawadrus’ claim for asylum and withholding of removal. Tawadrus, with aid of counsel this time, sought timely appeal to the BIA, which summarily affirmed the IJ’s decision pursuant to 8 C.F.R. § 3.1(a)(7) (now located at 8 C.F.R. § 1003.1), despite the unique facts and constitutional issues presented. Jurisdiction And StaNdards Of Review Proceedings in this case were initiated after April 1, 1997, providing jurisdiction under the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”), 8 U.S.C. § 1252. Unlike questions of law, which are reviewed de novo, Pedro-Mateo v. INS, 224 F.3d 1147, 1150 (9th Cir.2000), findings of fact are “conclusive unless any reasonable adjudicator would be compelled to conclude the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). Adverse credibility determinations are reviewed under the samé 'substantial evidence standard as findings of fact. See Gui v. INS, 280 F.3d 1217, 1225 (9th Cir.2002). To be eligible for asylum under IIRIRA, an applicant must demonstrate that “persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion” precludes return to his or her country of origin. 8 U.S.C. § 1101(a)(42)(A). To establish a well-founded fear, the petitioner must demonstrate both an objective showing of reasonable fear based on “credible, direct, and specific evidence,” and a subjective showing of genuine fear of future persecution. See Shirazi-Parsa v. INS, 14 F.3d 1424, 1427 (9th Cir.1994), overruled in part on other grounds by Fisher v. INS, 79 F.3d 955, 963 (9th Cir.1996) (en banc). If" }, { "docid": "22341707", "title": "", "text": "79 F.3d 955, 961-62 (9th Cir.1996) (en banc) (holding that Iranian woman failed to demonstrate a well-founded fear of persecution despite multiple arrests for violating Islamic laws because, without showing selective enforcement, “disproportionately severe punishment” or “pretextual prosecution”, she had merely established that she “face[d] a possibility of prosecution for an act deemed criminal in Iranian society”) (citation omitted). Adding to the fact that the gatherings became riotous was Ahmed’s testimony that the protestors had been told that any protests must be confined inside the camp rather than extending outside the camp borders. When the protestors defied those orders and when Ahmed made the not-so-veiled threat that “if yon don’t give us the freedom to speak today [then] this very Bangladesh is going to become Pakistan again”, it is not surprising that the police moved to restore order. That the police used force in restoring order does not compel a finding of persecution. 3. The Disappearance of Ahmed’s Brother The IJ’s finding that the disappearance of Ahmed’s brother does not bolster his claim of persecution is supported by substantial evidence. Ahmed himself testified that his brother was taken, not because of his political opinion, but because the Awami League members “got angry [with his] brother and they had an argument with him, not with the others.” This evidence simply does not compel a finding that Ahmed’s brother was taken away because of his political opinion. When this case is considered under the deferential standard we must apply, Ahmed’s petition fails to meet the requirements for asylum. See Gu v. Gonzales, 454 F.3d 1014, 1019 (9th Cir.2006) (requiring a showing of persecution to be eligible for asylum). That failure also dooms Ahmed’s request for withholding of removal. See Fisher, 79 F.3d at 965 (holding that “failure to satisfy the lesser standard of proof required to establish eligibility for asylum” necessarily results in failure “to demonstrate eligibility for withholding of deportation”) (citation omitted). Because substantial evidence supports the IJ’s finding of no persecution, I would deny Ahmed asylum and withholding of removal." }, { "docid": "22155093", "title": "", "text": "all because the respondent failed to appear in court and the police were executing a warrant. ...” Id. The IJ also referenced the “1997 State Department Profile” for the proposition that “country conditions for people who are in the Jatiya Party have radically changed.” Id. at 95. On March 21, 2003, the Board of Immigration Appeals (BIA), exercising jurisdiction under 8 C.F.R. § 1003.1(b), affirmed the IJ’s decision. The BIA explained that Shardar had failed to meet the burden of proof for establishing asylum because [w]hile ... violence is a feature of the political process in Bangladesh, we have no reason to conclude that the prosecution the respondent may face if he returns to Bangladesh is politically motivated, and there is no reason to find that he would be unable to establish his claimed innocence. Id. at 2. Moreover, the BIA denied Shardar’s request to reopen the proceeding for consideration under the CAT, concluding that he had “failed to establish prima facie eligibility for relief under the Convention.” Id. However, the BIA agreed that Shardar should be entitled to voluntarily depart. Id. at 3. This Court has jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). We conclude that the BIA properly denied (1) the petition for asylum; and (2) the petition to remand the proceedings for consideration under the CAT. II. Shardar argues that the BIA erred in denying his application for political asylum, particularly since the IJ found his testimony credible. The Attorney General has discretion to grant asylum if the petitioner demonstrates that he meets the Immigration and Nationality Act’s (INA) definition of “refugee” — that he is unable or unwilling to return to his home country “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a par ticular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A); see Dia v. Ashcroft, 353 F.3d 228, 234 n. 1 (3d Cir.2003). “A showing of past persecution gives rise to a rebuttable presumption of a well-founded fear of future persecution.” Mulanga v. Ashcroft, 349 F.3d 123, 132 (3d Cir.2003) (citing 8 C.F.R. §" }, { "docid": "6836084", "title": "", "text": "country conditions. The BIA itself noted that according to the State Department’s report on country conditions in the Philippines in 1994, kidnappings by the NPA continue to be a problem in the Philippines. The report also states that the government has not been successful at curbing continued human rights abuses committed by the NPA. The INS presented no evidence to overcome the presumption that Agbuya has a well-founded fear of persecution if she were to return to the Philippines. Because the INS did not rebut the presumption that Agbuya had a well-founded fear of persecution on account of political opinion, the BIA erred by denying that Agbuya was eligible for asylum. See 8 C.F.R. § 208.13(b); Singh v. Ilchert, 63 F.3d 1501, 1510 (9th Cir.1995). In addition, because the INS did not rebut the presumption that it is more likely than not that Agbuya’s life or freedom would be threatened upon returning to the Philippines, the BIA erred by denying her application for withholding of deportation. See 8 C.F.R. § 208.16(b)(2); Singh, 63 F.3d at 1510. We remand this case to the BIA with instructions to grant petitioner’s application for withholding of deportation and to present this matter to the Attorney General as eligible for the exercise of her discretion as to asylum under 8 U.S.C. § 1158(b). PETITION GRANTED. . The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) was enacted on September 30, 1996. See Pub.L. No. 104-208 (Division C), 110 Stat. 3009-546. IIRIRA repealed section 106(a) of the INA, and replaced it with a new judicial review provision at section 242 of the INA. This repeal became effective on April 1, 1997. See IIRIRA § 309(a). However, for cases where, as here, deportation proceedings began before April 1, 1997, and where the final order of deportation was issued after October 30, 1996, IIRIRA's “transitional rules” provide that, with certain exceptions not relevant to this case, the court of appeals has jurisdiction under old section 106(a) of the INA. See IIRI-RA §§ 309(c)(1) and (4), 110 Stat. 3009-625-26. . The dissent finds Desir inapposite, stating that" }, { "docid": "22467784", "title": "", "text": "petitioner’s circumstances would fear persecution if returned to the petitioner’s native country. See Ghasemimehr v. INS, 7 F.3d 1389, 1390 (8th Cir.1993). “The fear must have a basis in reality and must be neither irrational nor so speculative or general as to lack credibility.” Miranda v. United States INS, 139 F.3d 624, 627 (8th Cir.1998). We do not think that that standard has been met. The standard for withholding of deportation requires applicants to show a “clear probability” that they will face persecution in the country to which they will be deported. See Behzadpour v. United States, 946 F.2d 1351, 1354 (8th Cir.1991). This standard is more difficult to meet than the “well-founded fear” standard for asylum. See id. Because substantial evidence supports the denial of asylum, we also affirm the BIA’s denial of withholding of deportation. See id. III. CONCLUSION For the foregoing reasons, the judgment of the Board of Immigration Appeals is affirmed. . The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub.L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996), amended by Act of Oct. 11, 1996, Pub.L. No. 104-302, 110 Stat. 3656, repealed 8 U.S.C. § 1105a and replaced it with a new judicial review provision. See IIRIRA § 306. The new provision governs removal proceedings commenced after April 1, 1997. See IIRIRA § 309(a). Where, as here, deportation proceedings are commenced before IIRIRA’s general effective date of April 1, 1997, and the final order of deportation or exclusion is entered more than thirty days after IIRIRA’s September 30, 1996, date of enactment, 8 U.S.C. § 1105a, along with the addition of some transitional changes, continues to govern our consideration of this petition. See IIRIRA § 309(c)(1) & (4). . Because we find that there was substantial evidence to support the BIA's decision that Kratchmarov lacked a well-founded fear of future persecution, we decline to discuss the government’s other arguments that: (1) Kratchmarov failed to establish persecution on account of political opinion or on account of membership in a social group; and (2) that his past mistreatment did not rise to the level" }, { "docid": "22603429", "title": "", "text": "“clear probability” of persecution if she were to return to Fiji. See Fisher v. INS, 79 F.3d 955, 961 (9th Cir.1996) (en banc). Accordingly, the evidence does not compel a finding that Petitioner is eligible for withholding of deportation. IV. Conclusion In sum, Petitioner has not established that she experienced persecution or that she has a well-founded fear of persecution. She thus has failed to establish eligibility for asylum and therefore cannot establish eligibility for withholding of deportation. Petition denied. . Petitioner attempted to join her family in Australia, but the Australian immigration system prevented her from doing so. . Petitioner’s claims are consistent with a 1994 study that the Department of State conducted of Fiji. That study observed: Ethnic and communal differences ... cause significant social tensions in Fiji. In some instances, this tension results in the harrassment [sic] and intimidation of ethnic Indians by ethnic Fijians. The police are sometimes either unable or unwilling to prevent such harrassment [sic], which is frequently at a personal level_ Indo-Fijians are also sometimes the victims of crime based, on race. Inadequate police protection contributes to the frequency and seriousness of these incidents. Crimes committed against the Indo-Fijian population were particularly egregious in 1987-88 following the coups. (A.R. at 94.) . Petitioner has not alleged that events such as the burglary and stonings took place after she moved from her village. Petitioner merely has alleged that after she moved, several people on the streets made uncomplimentary remarks to her and her daughter. (A.R. at 26.) . The immigration judge had to designate a country because Petitioner declined to do so. . Although the BIA conducted a limited independent review of the record, it also expressly adopted the immigration judge’s opinion. Accordingly, we also review the decision of the immigration judge to the extent the BIA's opinion incorporated it. Ghaly v. INS, 58 F.3d 1425, 1430 (9th Cir.1995). . The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA\"), Pub.L. No. 104-208, 110 Stat. 3009 (1996) repealed 8 U.S.C. § 1105a and replaced it with another judicial review provision. See IIRIRA §" }, { "docid": "22145458", "title": "", "text": "harassing actions of a segment of Armenian society bent on ethnic cleansing— actions which targeted Mgoian and her family for their prominent role as intellectuals in a small and vulnerable minority — • would induce any person so situated to have a reasonable and “well-founded fear” of persecution. In our view, no reasonable factfinder who fairly considered the evidence could have found otherwise. In addition to her application for asylum, Mgoian requested withholding of deportation. The Attorney General must withhold deportation if an alien’s “life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1253(h). To obtain withholding of deportation, the applicant must demonstrate that it is more likely than not that she will be persecuted by the government or a group that the government cannot or will not control. Mendoza Perez v. U.S. I.N.S., 902 F.2d 760, 761 (9th Cir.1990). Given the pattern of persecution closely tied to Mgoian and the ongoing harm inflicted upon Kurdish-Moslems in Armenia, we conclude that Mgoian has established that it is more likely than not that she would be persecuted were she to return to Armenia. III. In conclusion, we hold that the BIA’s denial of eligibility for asylum was not supported by substantial evidence in the record. Any reasonable factfinder would be compelled to find that Mgoian has a well-founded fear of future persecution. Moreover, Mgoian is entitled to withholding of deportation. See Vallecillo-Castillo v. INS, 121 F.3d 1287, 1240 (9th Cir.1996). We grant Mgoian’s petition for review and reverse the BIA’s decision. We REMAND the case to the BIA. The Board is directed to grant Mgoian’s petition for withholding of deportation, and, with respect to the petitioner’s asylum' application, to exercise its discretion under § 208 of the INA, 8 U.S.C. § 1158(a). . The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (\"IIRIRA”), Pub.L. No. 104-208, 110 Slat. 3009 (Sept. 30, 1996), amended by Act of Oct. 11, 1996, Pub.L. No. 104-302, 110 Slat. 3656, repealed 8 U.S.C. § 1105a (1994) and" }, { "docid": "22149762", "title": "", "text": "for his fear.” Id. at 621. We find that substantial evidence supports the immigration judge’s conclusion that Ali did not possess a well-founded fear of persecution in Bangladesh on account of his political opinion. 2. Withholding of Deportation To qualify for withholding of deportation, an applicant must show a “clear probability of persecution,” which is a stricter standard than the “well-founded fear” standard that applies with respect to applications for asylum. INS v. Stevic, 467 U.S. 407, 430, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984); see also 8 C.F.R. § 208.16(b)(1). Because Ali has failed to demonstrate a well-founded fear of persecution in Bangladesh on account of his political opinion, his request for withholding of deportation must likewise fail. Daneshvar v. Ashcroft, 355 F.3d 615, 625 (6th Cir.2004) (“Because substantial evidence supports the conclusion that Petitioner is ineligible for asylum, it therefore follows that he cannot satisfy the more stringent standard for withholding of deportation.”)- B. Voluntary Departure The Immigration and Nationality Act grants the Attorney General the discretionary power to allow a deportable alien to depart voluntarily in lieu of deportation if the alien establishes that he “has been a person of good moral character, for at least five years preceding his application.” 8 U.S.C. § 1254(e). The immigration judge determined that Ali had failed to demonstrate the requisite “good moral character.” That determination was based at least in part upon the Service’s evidence regarding the validity of his marriage to Sumner. Ali concedes that entering into a sham marriage for purposes of obtaining immigration benefits precludes an alien from demonstrating the requisite good moral character. Nevertheless, he argues that the immigration judge erred in finding that he was not entitled to voluntary departure. He also contends that the admission of the evidence concerning the validity of his marriage denied him a fair hearing. The transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 apply in this case because Ali’s deportation proceedings commenced before April 1, 1997, but the final administrative order of deportation was issued on or after October 30, 1996. IIRIRA §§ 309(a)," }, { "docid": "7427463", "title": "", "text": "insufficient to establish that “a reasonable person in the asylum applicant’s circumstances would fear persecution on account of a statutorily protected ground.” Id. (citations omitted). The only incidents Afful testified to involved her brothers. One brother lost his job because of his affiliation with the PFP, and another was arrested three times and lost his property. Neither brother was physically harmed. Afful was never arrested or physically harmed. This evidence does not compel a finding that a reasonable person in Afful’s circumstances would fear persecution on account of a statutorily-protected ground. Because we find substantial evidence to support the Immigration Judge’s and BIA’s findings that Afful was not a credible witness and failed to demonstrate a well-founded fear of future persecution due to a protected ground, we affirm the denial of asylum. Because Afful is unable to satisfy the less stringent standard for asylum, she is a fortiori unable to satisfy the test for withholding of deportation. See Albathani v. INS, 318 F.3d 365, 372 (1st Cir.2003). We therefore affirm the denial of withholding of deportation. II. Pretermitting the Application for Suspension of Deportation Afful contends that it was error to pretermit her application for suspension of deportation. An application is pretermitted when disqualified for failure to meet the threshold eligibility requirement that an alien have resided in the United States for a sufficient period of time to obtain the discretionary relief of suspension of deportation. Under the former INA, the requisite period of residence was seven years, and the period continued to accrue until the alien applied for suspension of deportation. 8 U.S.C. § 1254(a)(1) (1994) (repealed 1996). The passage of the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”) in 1996 established a “stop-time” rule that caps an alien’s cumulative period of residence once a “notice to appear” is issued. IIRIRA § 309(c)(5); 8 U.S.C. § 1229b (d)(1); see Suassuna v. INS, 342 F.3d 578, 581 (6th Cir.2003) (“Prior to the enactment of the stop-time rule, aliens would often delay their deportation proceedings until they accrued sufficient continuous presence in the United States to qualify for relief.”) (citing" }, { "docid": "22878962", "title": "", "text": "improved since the peace accords of 1992 . . .\"). In 1996, the Mexican government reached an agreement with SUTAUR-100, authorizing the union to represent employees of two new bus lines in Mexico City. After considering the evidence and Re-galado-Garcia's contentions, we conclude that the record supports the BIA's determinations that Regalado-Garcia neither was a `victim of persecution nor has an objectively reasonable and well-founded fear of future persecution. Accordingly, Regalado-Garcia does not a qualify as a refugee and is ineligible for asylum. B. Withholding of Removal Regalado-Garcia must show a \"clear probability\" that he will face persecution in Mexico to have his removal withheld pursuant to section 243(h) of the INA. Francois, 283 F.3d at 932-33 (citation omitted). The \"clear probability\" standard is more rigorous than that of well-founded fear required for a grant of asylum. Id. Because substantial evidence supports the BIA's denial of Regalado-Garcia's request for asylum, substantial evidence likewise supports the BIA's determination that Regalado-Garcia has not shown a \"clear probability\" of persecution by the Mexican government should he return to the country. III. The petition for review is denied. . Congress revised the withholding of removal provisions, 8 U.S.C. § 1253(h), in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub.L. No. 104-208, 110 Stat. 3009-546 (Sept. 30, 1996), as amended by the Extension of Stay in United States for Nurses Act of October 11, 1996, Pub.L. No. 104-302 § 2, 110 Stat. 3656. The withholding provisions are now codified at 8 U.S.C. § 1231(b)(3). See INS v. Aguirre-Aguirre, 526 U.S. 415, 420, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999). . Section 244(e) of the INA, codified at 8 U.S.C. § 1254, was repealed by the IIRIRA. Pub.L. 104-208, 110 Stat. 3009-615. We lack jurisdiction to review denial of Regala-do-Garcia's request for voluntary departure. The IIRIRA's transitional rules preclude judicial review \"of any discretionaiy decision under section 244 of the [INA],” the provision in question here. IIRIRA § 309(c)(4)(E); Antonio-Cruz v. INS, 147 F.3d 1129, 1130 (9th Cir.1998). A grant of voluntary departure is such a discretionary decision. Shkukani v. INS, 435" }, { "docid": "22198799", "title": "", "text": "even where there is little likelihood of future persecution. See Acewicz v. INS, 984 F.2d at 1062. When the BIA finds past persecution but no well-founded fear of future persecution, we review its denial of humanitarian asylum for an abuse of discretion. See Lopez-Galarza v. INS, 99 F.3d 954, 960 (9th Cir.1996). Although rape may constitute an atrocious form of persecution, see id. at 962, Belayneh never claims to have been raped, and there is scant evidence even of an attempted rape; she did not mention an attempted rape in her application, and testified to it only in passing. While this does not mean that she could not have been so traumatized, she failed to evince it sufficiently to support a finding of atrocity. On this record, we cannot say that the BIA abused its discretion. Belayneh also argues that the BIA should have accorded more weight to her adult son’s successful asylum claim, particularly because his persecution occurred during the Mengistu regime, yet he won asylum in 1996. Issue preclusion applies to immigration proceedings. See Ramon-Sepulveda v. INS, 824 F.2d 749, 750-51 (9th Cir.1987). However, Belayneh’s claim of persecution rests upon a different factual predicate than her son’s: he was himself a victim of persecution not long before he sought asylum. Further, as we have noted, the country conditions have changed since his petition was considered. PETITION DENIED . The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (\"IIRIRA”) repealed 8 U.S.C. § 1105a and replaced it with a new review provision codified at 8 U.S.C. § 1252. See IIRIRA § 306(c)(1). The new provision does not apply to deportation proceedings, such as Belayneh's, commenced prior to April 1, 1997, and we continue to have jurisdiction under 8 U.S.C. § 1105a. See IIRIRA § 309(c)(1)." }, { "docid": "22884085", "title": "", "text": "CALLAHAN, Circuit Judge: Petitioners, Mark, and Sworna Gomes and their son, Methew, natives and citizens of Bangladesh and members of the Catholic faith, seek asylum or withholding of deportation based on their fear of persecution should they be returned to Bangladesh. The Board of Immigration Appeals (“BIA”) denied petitioners relief and petitioners filed a timely petition for review pursuant to 8 U.S.C. § 1252. We deny the petition for review. I Petitioners entered the United States in 1991 or 1992, and applied for asylum and withholding of deportation in 1995. On June 22, 1995, an Immigration Judge (“IJ”) rejected petitioners’ claim of persecution based on their status as active Christians and denied relief. Petitioners appealed to the BIA which on June 10, 1996, affirmed the denial of asylum. Petitioners did not file a petition for review from the BIA’s June 1996 order. In September 1996, however, they filed a motion to reopen with the BIA alleging that conditions in Bangladesh had deteriorated since 1995 for Christians and that the new government would not protect them from Muslim extremists. The BIA granted the motion to reopen and remanded the case to the IJ for further proceedings. The BIA noted that petitioners’ documents indicated that circumstances had materially changed in Bangladesh since the time of the I J’s decision. The IJ held further hearings and then denied relief. On appeal, the BIA affirmed the IJ’s denial of relief and dismissed petitioners’ appeal. The BIA determined that petitioners did not have an objectively reasonable basis for their asy lum claim because the evidence did not establish “that they have a good reason to fear that they will be singled out for persecution by Muslim extremists on account of their religion where the government would be unable or unwilling to protect them.” Petitioners now petition for review. II The Attorney General has the discretion to grant asylum to refugees. 8 U.S.C. § 1158(b)(1). A refugee is defined in 8 U.S.C. § 1101(a)(42) as a person unable to return to his or her country “because of persecution or a well-founded fear of persecution on account" }, { "docid": "22755842", "title": "", "text": "the opinion address Li’s claim that he and his wife were threatened with sterilization, forced abortion, incarceration,, and other physical abuse. The BIA also found that Li did not establish he had a well-founded fear of future persecution, noting that •in light of [Li’s] ability to live unfettered for 15 months before leaving China; his wife’s ability to continue living in China without sterilization, and the ages of the respondent and his wife, [Li] failed' to sustain the burden of proving a well- ■ founded fear of future' persecution on account of the coercive population control policiés in China. Because it based its decision on the legal conclusion that Li’s allegations did not rise to the level of persecution, the BIA declined to address the validity of the IJ’s “alternative discretionary rationale,” or the IJ’s adverse credibility determination. II. JURISDICTION, SCOPE OF, AND STANDARD OF REVIEW The BIA had jurisdiction over this matter pursuant to 8 C.F.R. § 3.1(b)(3) (2003). Because petitioner’s deportation proceedings began with an Order to Show Cause issued by the Immigration and Naturalization Service on June 26, 1996, this matter falls under the Transitional Rules set forth in section 309(c) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub.L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996). Our jurisdiction, therefore, is governed by former section 106(a) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1105a(a), which provides the exclusive procedure for judicial review of all final orders of “deportation and exclusion” in proceedings initiated prior to April 1, 1997. The BIA’s final order was entered on March 4, 2003, and the petition for review was timely filed on April 3, 2003. See IIRIRA § 309(c)(4)(C). Where, as here, the BIA issues a decision on the merits. and not simply a summary affirmance, we review the BIA’s, not the IJ’s, decision. Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir.2002). We must treat the BIA’s findings of fact as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Lukwago v. Ashcroft," }, { "docid": "5802625", "title": "", "text": "concluding that any court-martial that Tagaga would face on his return to Fiji would be “unrelated to a statutorily protected ground.” Any reasonable factfinder would be compelled to conclude that a future court-martial of Tagaga by the military regime in Fiji would be motivated at least in part by his refusal to participate in the persecution of Indo-Fijians. His well-founded fear of persecution and the likelihood that it would eventuate were he returned to Fiji are based on his political opinion and activities. III. Because Tagaga faces a well-founded fear of persecution on account of a statutorily protected ground, he and his family are eligible for asylum. We reverse and remand for the Attorney General to exercise her discretion in that respect. We also conclude, for the reasons stated above, that Tagaga, has demonstrated that “it is more likely than not that [he] would be subject to persecution in the country to which he would be returned.” Cardoza-Fonseca, 480 U.S. at 423, 107 S.Ct. 1207. He is therefore entitled to withholding of deportation. PETITION FOR REVIEW GRANTED. REVERSED AND REMANDED FOR FURTHER ACTION CONSISTENT WITH THIS OPINION. . The asylum applications of Aminisitai Tagaga’s wife and four children depend on the outcome of Aminisitai's application. . The Illegal Immigration Reform and Immigration Responsibility Act of 1996 (\"IIRI-RA”), Pub.L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996), replaced this section with a new judicial review provision codified at 8 U.S.C. § 1252. However, because under IIR-IRA’s transitional rules this new review provision does not apply to petitioners like Tagaga whose deportation proceedings commenced before April 1, 1997, we continue to exercise jurisdiction under § 1105a(a). See IIRIRA § 309(c)(1). . \"The Constitution guarantees ethnic Fijians dominance of the Government by providing them with 37 of 70 seats in the elected lower house of Parliament.... In the Senate (an appointed body with essentially review powers and the right to veto legislation), ethnic Fijians hold 24 of the 34 seats.... Other constitutional features designed to ensure ethnic Fijian dominance include a requirement that the Prime Minister be an ethnic Fijian and selection procedures" }, { "docid": "22994118", "title": "", "text": "(quoting 8 U.S.C. § 1105a(a)(4)). Similarly, the Board’s decision as to whether to withhold deportation is reviewed for substantial evidence but of a clear probability of persecution as contrasted to well-founded fear required for asylum. Berroteran-Melendez v. INS, 955 F.2d 1251, 1255 (9th Cir.1992). The Board’s findings of fact are conclusive if they are supported by reasonable, substantial, and probative evidence on the record considered as a whole. Hartooni v. INS, 21 F.3d 336, 340 (9th Cir.1994). Under this standard the factual findings of the Board will be reversed only where the evidence is such that a reasonable fact-finder would be compelled to conclude that the requisite fear of persecution existed. Ghaly v. INS, 58 F.3d 1425, 1429 (9th Cir.1995). The Board squarely addressed each of the incidents raised by Astrero concluding that these incidents did not, individually or as a whole, establish a well-founded fear of future persecution. The Board accepted, for purposes of analysis, that Astrero’s subjective fear of future persecution was genuine. However, the Board found that Astrero failed to meet his burden of proof on the objective component. We conclude that the Board’s decision to deny asylum is supported by substantial evidence in the record. Because Astrero failed to meet the standard for asylum, he cannot meet the more stringent standard for withholding of deportation. See id. II. Respondent urges us to dismiss Astrero’s suspension claim, asserting that Sections 304 and 309 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRA”), Div. C., Department of Defense Appropriations Act, 1997, Pub.L. 104-208, 110 Stat. 3009, are currently applicable. IIRA § 308(b)(7) repeals current INA § 244 which allows for suspension of deportation of aliens in certain circumstances. IIRA § 304, replaces old INA § 244 with new INA § 240A. It provides a new procedure, “cancellation of removal,” that replaces suspension of deportation relief now available under § 244(a). The new § 240A(b)(l) requires a period of 10, rather than 7, years continuous physical presence in order for nonpermanent resident aliens to be eligible for “cancellation of removal.” Furthermore, the new § 240A(d)(l) provides" }, { "docid": "23500046", "title": "", "text": "81 L.Ed.2d 321 (1984). Accordingly, Baballah is entitled to withholding of deportation. YI. We conclude that Baballah suffered past persecution and that he has shown a genuine and well-founded fear of future persecution should he return to Israel. Under these circumstances, he and his family are eligible for asylum. We also conclude that Baballah and his family are entitled to withholding of removal. We remand this case to the BIA for the Attorney General to exercise his discretion under 8 U.S.C. § 1158(b) as to whether to grant asylum, and for an appropriate order withholding removal of Baballah and his family. Petition GRANTED; REMANDED for further proceedings. . Because Baballah was found credible and his testimony is thus accepted as undisputed, the facts recounted here are derived from his testimony. See Singh v. INS, 94 F.3d 1353, 1356 (9th Cir.1996) (RJ.Singh). . The parties refer to Baballah’s hometown as \"Aka,” but it appears to be more commonly known as \"Akko” or \"Akka.” . Baballah testified that he received anywhere from one to four citations a month, each of which had a fine of 250-500 shekels ($170— $180). . Baballah reported that, because Arabs were charged more than Jews, this mortgage bore an extremely high interest rate. . Baballah’s wife and minor son, respectively, Ula Baballah and Ahmad Baballah, are included in his application for asylum and withholding of removal. Their eligibility is derivative of Baballah's. 8 C.F.R. § 208.21(a). Abrahim and Ula Baballah also have two children who are United States citizens. . We have jurisdiction under section 106 of the INA, codified at 8 U.S.C. § 1105a(a)(l) (1996), amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub.L. No. 104-208, 110 Stat. 3009-546 (Sept. 30, 1996). Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir. 1997). Because the final order of deportation in this case was filed after October 30, 1996 and was pending on April 1, 1997, the BIA's decision is reviewed under the transitional rules of IIRIRA. Id; IIRIRA § 309(c), codified at 8 U.S.C. § 1101. . Economic persecution on account of" }, { "docid": "23071510", "title": "", "text": "serious abuse and is practiced by both government and LTTE forces.” Finally, the INS attempts to distinguish Matter of SP-, Interim Decision (BIA) 3287 (1996), in which the BIA granted asylum to a Tamil civilian who was tortured by the Sri Lankan military after being captured in an LTTE bunker. The INS argues that, unlike Matter of SP-, in Ratnam’s ease there was “legitimate intelligence gathering underlying the beatings.” This argument, however, fails to recognize that “persecutory conduct may have more than one motive, and so long as one motive is one of the statutory grounds, the requirements have been satisfied.” Harpinder Singh, 63 F.3d at 1509. Torture in the absence of any legitimate criminal prosecution, conducted at least in part on account of political opinion, provides a proper basis for asylum and withholding of deportation even if the torture served intelligence gathering purposes. III. This case is squarely controlled by Harpinder Singh. We reject the argument that extra-prosecutorial torture, if conducted for intelligence gathering purposes, does not constitute persecution. Since the torture in this case was at least in part on account of Ratnam’s imputed political -opinion, he is entitled to relief from exclusion and deportation. The petition is GRANTED and the matter REMANDED so that the BIA may grant withholding of deportation and exercise its discretion whether to grant asylum. . The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (\"IIRIRA”) repeals 8 U.S.C. § 1105a and replaces it with a new judicial review provision to be codified at 8 U.S.C. § 1252. See IIRIRA § 306(c)(1), Pub.L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996), as amended by Act of Oct. 11, 1996, Pub.L. No. 104-302, 110 Stat. 3656. However, because the new review provision does not apply to petitioners whose deportation proceedings commenced before April 1, 1997, this court continues to have jurisdiction under 8 U.S.C. § 1105a. See IIRIRA § 309(c)(1)." }, { "docid": "22326511", "title": "", "text": "or death to Avetova-and more importantly, nothing in the record contradicts the conclusion of governmental unwillingness or inability to stop such harassment. Hence Avetova has demonstrated an objectively reasonable, as well as subjective, fear. As suggested by what has just been said, we also hold that the demonstrated harassment of Armenians in Russia amounts to “persecution” under Section 1101(a)(42)(A). Again no evidence was proffered by the INS to suggest the absence of such hostile treatment of Armenians in Russia. While not all harassment rises to the statutory level of “persecution,” here the detention, intimidation and beatings of Armenians because of their ethnicity, as described in the record, involves “the infliction of suffering or harm upon those who differ (in race, religion or political opinion) in a way regarded as offensive” Ghaly, 58 F.3d at 1431 (quotation marks and citation omitted). To the extent that the BIA or the IJ might be perceived as having decided differently (a doubtful premise, see n.20), that could not be viewed as supported by substantial evidence. Conclusion We hold that the BIA’s decision not to grant asylum or to withhold deportation to Russia lacks the support of substantial evidence. Any reasonable finder of fact would be compelled to conclude that Ave-tova has a well-founded fear of future persecution in Russia because of her being Armenian. We therefore GRANT Aveto-va’s petition and REMAND this case to the BIA with directions to grant Avetova’s petition for withholding of deportation and to present this matter to the Attorney General for the exercise of her discretion under Section 1158(b). PETITION GRANTED. . In view of her dual citizenship, the IJ separately considered deportation to Azerbaijan and to Russia. Because the IJ granted Aveto-va’s petition to withhold deportation to Azerbaijan and the Immigration and Naturalization Service (“INS”) has not sought to review that decision, the issue is not before us. . All citations to Title 8 provisions will take the form \"Section-,” omitting the prefatory “8 U.S.C.” Although the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“Reform Act”) has replaced Section 1105a with Section 1252, the new review" }, { "docid": "22145459", "title": "", "text": "Armenia, we conclude that Mgoian has established that it is more likely than not that she would be persecuted were she to return to Armenia. III. In conclusion, we hold that the BIA’s denial of eligibility for asylum was not supported by substantial evidence in the record. Any reasonable factfinder would be compelled to find that Mgoian has a well-founded fear of future persecution. Moreover, Mgoian is entitled to withholding of deportation. See Vallecillo-Castillo v. INS, 121 F.3d 1287, 1240 (9th Cir.1996). We grant Mgoian’s petition for review and reverse the BIA’s decision. We REMAND the case to the BIA. The Board is directed to grant Mgoian’s petition for withholding of deportation, and, with respect to the petitioner’s asylum' application, to exercise its discretion under § 208 of the INA, 8 U.S.C. § 1158(a). . The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (\"IIRIRA”), Pub.L. No. 104-208, 110 Slat. 3009 (Sept. 30, 1996), amended by Act of Oct. 11, 1996, Pub.L. No. 104-302, 110 Slat. 3656, repealed 8 U.S.C. § 1105a (1994) and replaced it with a new judicial review provision. See IIRIRA § 306. As the new provision does not apply to proceedings that commenced before April 1, 1997, this Court has jurisdiction over this petition under 8 U.S.C. § 1105a. See IIRIRA § 309(c). . Armenia has a total population near three million, of whom approximately ninety percent are both racially Armenian and religiously Christian. As of 1990, only an estimated 10,000 Kurdish-Moslems were resident in Armenia. After the collapse of the Soviet empire that number fell to approximately 1,000. Admin.R. at 69. . Azerbaijan, which is predominately Moslem, fought a bloody war with Armenia in the early-1990's over the enclave of Nagorno-Karabakh. . Failing that, if the applicant is a member of a “disfavored'' group, but the group is not subject to systematic persecution, this court will look to (1) the risk level of membership in the group (i.e., the extent and the severity of persecution suffered by the group) and (2) the alien’s individual risk level (i.e., whether the alien has a special role" }, { "docid": "14887464", "title": "", "text": "the Board if I reviewed the administrative record in the first instance. Sympathy alone is an insufficient basis to ignore the reasonable findings of the administrative authorities, to which the primary responsibility of making those findings has been given by Congress. I concur, therefore, in the Court’s judgment to DENY Sebastian’s petition. . This Court has jurisdiction under 8 U.S.C. § 1105a. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (\"IIRIRA”) repealed 8 U.S.C. § 1105a, replacing it with a new judicial review provision codified at 8 U.S.C. § 1252. See IIRIRA § 306(c)(1), Pub.L. No. 104-208, 110 Stat. 3009 (Sepl. 30, 1996), as amended by Act of Oct. 11,-1996, Pub.L. No. 104-302, 110 Stat. 3656. Because Sebastian's deportation proceedings commenced before April 1, 1997, this Court continues to exercise jurisdiction pursuant to 8 U.S.C. § 1105a. See IIRIRA § 309(c)(1). . The persecution that Sebastian alleges was at the hands of guerilla forces, not the government of Guatemala. \"Nevertheless, persecution cognizable under the Act can emanate from sections of the population that do not accept the laws of the country at issue, sections that the government of that country is either unable or unwilling to control.” Borja v. INS, 175 F.3d 732, 735 n. 1 (9th Cir.1999) (en banc). . The provisions of 8 U.S.C. § 1158(a) give the Attorney General discretionary authority to grant asylum to an alien \"if the attorney general determines that such alien is a refugee within the meaning of Section 1101(a)(42)(A) of this title.” . In addition to testifying regarding his own mistreatment by the guerrillas, Sebastian testified that his family members were also gravely mistreated by the guerrillas. It is unclear from Sebastian's petition what his ' testimony about the mistreatment of his family sought to establish in terms of supporting his asylum application. The Board agreed with the Immigration Judge that his testimony never indicated that the guerrillas' mistreatment of his family, though deplorable, was related to a political opinion imputed to them by the guerrillas. Our review of the record finds substantial evidence to support the Board’s determination. Sebastian" } ]

[ { "docid": "19804266", "title": "", "text": "to the action were private.” Barkanic, 923 F.2d at 959-60. The paradigm case involving choice-of-law issues and solely private parties is one brought under the federal courts’ diversity jurisdiction. See 28 U.S.C. § 1332. In such a case, the court would apply the forum state’s choice-of-law rules. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). We thus agree with the Second Circuit that applying the forum state’s choice-of-law principles, rather than constructing a set of federal common law principles, better effectuates Congress’ intent that foreign states be “liable in the same manner and to the same extent as a private individual” in FSIA actions. 28 U.S.C. § 1606. In this case, the plaintiffs causes of action for IIED and wrongful death are based solely on state substantive law, and the choice-of-law rules of the forum — the District of Columbia — therefore apply to those claims. The district court did rely on D.C. law when conducting its choice-of-law analysis for the plaintiffs IIED claim, and it concluded that California law should supply the rule of decision. See Oveissi, 498 F.Supp.2d at 280-81. We review this determination de novo. Williams v. First Gov’t Mortgage & Investors Corp., 176 F.3d 497, 499 (D.C.Cir.1999); see also Felch v. Air Florida, Inc., 866 F.2d 1521, 1523 (D.C.Cir.1989) (“This court treats choice of law issues as matters of law over which it exercises de novo review.”). 2. To determine which jurisdiction’s substantive law governs a dispute, District of Columbia courts blend a “governmental interests analysis” with a “most significant relationship” test. Hercules & Co., Ltd. v. Shama Rest. Corp., 566 A.2d 31, 40-41 & n. 18 (D.C.1989); see also Jaffe v. Pallotta TeamWorks, 374 F.3d 1223, 1227 (D.C.Cir.2004); Stephen A. Goldberg Co. v. Remsen Partners, Ltd., 170 F.3d 191,193-94 (D.C.Cir.1999). “Under the governmental interests analysis!,] ... [a court] must evaluate the governmental policies underlying the applicable laws and determine which jurisdiction’s policy would be most advanced by having its law applied to the facts of the case under review.” Hercules, 566 A.2d at 41" } ]

[ { "docid": "4120260", "title": "", "text": "Virginia, and the unspecified states through which the buses passed. From the list of conceivable states whose law might apply in whole or in part, the Court does not detect any significant conflicts of law with the laws of the forum, the District of Columbia. In the absence of a conflict, a court may apply the laws of the forum. In re Air Crash Disaster, 559 F.Supp. 333, 342 n. 10 (D.D.C.1983). To the extent there are .any conflicts of law, District of Columbia law would still apply. The courts of the District apply “governmental interest analysis” to resolve choice of law questions. Hercules & Co., Ltd. v. Shama Restaurant Corp., 566 A.2d 31, 40-41 (D.C.1989). In doing so, they rely on section 145 of the Restatement of the Laws (Second), Conflict of Laws, which holds that, “[t]he rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties.” Restated of Conflict of Laws, § 145. Principles to consider include the place where injury occurred; where the tortious conduct occurred; where the parties have their domiciles, residences, nationalities, or place of incorporation or business; or where the relationship between the parties “is centered.” Id. Where the conduct complained of and the injury both occur in the same state, that state’s law will usually control, but the purpose of the governmental interest analysis is to allow for those cases in which “some other state has a more significant relationship” such that its laws should govern. Id. at § 146. See also Restated of Conflict of Laws § 6 (describing principles to be considered in applying governmental interest analysis); Hercules & Co., Ltd. v. Shama Restaurant Corp., 566 A.2d 31 (D.C.1989) (applying D.C. choice of law analysis); In re Air Crash Disaster, 559 F.Supp. 333 (D.D.C. 1983) (same). In this case the “most significant relationship” is with the District of Columbia. Plaintiffs are D.C. prisoners suing the District and its agents. They were in" }, { "docid": "19518440", "title": "", "text": "federal law. The fact that he is neither a U.S. national nor a member of the U.S. armed forces does not, however, foreclose him from seeking to recover under state tort law. See Owens , 864 F.3d at 809. Historically, the state-sponsored terrorism exception to the FSIA was not understood to create a federal cause of action against foreign states (as opposed to state officials) but, rather, to operate merely as a \"pass-through\" for state law claims. Owens , 864 F.3d at 764 ; see also Cicippio-Puleo v. Islamic Republic of Iran , 353 F.3d 1024, 1033 (D.C. Cir. 2004). When Congress amended the law to provide a federal cause of action, see National Defense Authorization Act for Fiscal Year 2008 § 1083, it did not upset the prior law permitting plaintiffs to assert state law claims after clearing the hurdle of foreign sovereign immunity, see Owens , 864 F.3d at 807-09. Although most plaintiffs proceeding under the state-sponsored terrorism exception to the FSIA need not rely on state tort law, the \"pass-through approach remains\" a \"viable\" option for those who are unable to invoke the federal cause of action, such as \"foreign family members\" like Bashar Al-Taie. Id. at 809. 1. Choice of Law In the absence of a federal cause of action, the Court must first consider what law applies. Because \"[t]he FSIA does not contain an express choice-of-law provision,\" the Court must apply the choice of law rules of the forum state. Oveissi v. Islamic Republic of Iran , 573 F.3d 835, 841 (D.C. Cir. 2009). The Court will, accordingly, apply District of Columbia choice of law principles. The District of Columbia uses a choice-of-law rule that \"blend[s] a 'governmental interest analysis' with a 'most significant relationship' test.\" Id. at 842 (quoting Hercules & Co., Ltd. v. Shama Rest. Corp. , 566 A.2d 31, 40-41 & n.18 (D.C. 1989) ). Under the governmental interest analysis, the Court \"must evaluate the governmental policies underlying the applicable laws and determine which jurisdiction's policy would be most advanced by having its law applied to the facts of the case under" }, { "docid": "21304255", "title": "", "text": "of Action In order to ensure that the Court determines the appropriate amount of damages available to each plaintiff under the law, it must first ensure that each plaintiff has a valid claim under state law. The FSIA does not itself provide a cause of action, but rather “acts as a ‘pass-through’ to substantive causes of action against private individuals that may exist in federal, state or international law.” Blais v. Islamic Republic of Iran, 459 F.Supp.2d 40, 54 (D.D.C. Sept.29, 2006) (Lamberth, J.) (citing Dammarell v. Islamic Republic of Iran, Civ. A. No. 01-2224, 2005 WL 756090, at *8-10, 2005 U.S. Dist. LEXIS 5343, at *27-32 (D.D.C. Mar. 29, 2005) (Bates, J.)). In order to determine the applicable state law to each action, the Court must look to the choice of law rules of the forum, in this case, the choice of law rules of the District of Columbia. See Blais, 459 F.Supp.2d at 54. Under District of Columbia choice of law rules, courts employ a modified government interest analysis under which they “evaluate the governmental policies underlying the applicable laws and determine which jurisdiction’s policy would be most advanced by having its law applied to the facts of the case under review.” Hercules & Co. v. Shama Rest. Corp., 566 A.2d 31, 41 (D.C.1989) (citations and internal quotations omitted). Application of this governmental interest test generally points to the law of plaintiffs domicile as having the greatest interest in providing redress to its citizens. Accordingly, the validity of each of the plaintiffs’ claims shall be determined by the state in which they were domiciled at the time of the attack. In this action, three types of claims have been sought. First, the personal representatives and estates of the servicemen killed in the attack have brought claims for wrongful death, in which the plaintiffs and beneficiaries seek compensation in the form of the present value of the decedent’s lost wages and earnings that he would have earned but for his untimely death. Second, the surviving servicemen have brought claims for battery against the defendants. Third, the family members of" }, { "docid": "11634574", "title": "", "text": "so, the court must assess what choice-of-law rules govern this claim — a non-federal cause of action brought under FSIA. 1. Choice of Law In a FSIA case such as this, District of Columbia choice-of-lav? rules apply to issues governed by state law. Virtual Def., Dev. Int'l, Inc. v. The Republic of Moldova, 133 F.Supp.2d 9, 15 (D.D.C.2001) (holding that the goal expressed in § 1606 “of applying identical substantive. laws to foreign states and private individuals cannot be achieved ... unless a federal court utilizes the same choice-of-law analysis in FSIA cases as it would if all the parties of the action were private”). 2. Legal Standard For District of Columbia Choice-of-Law Analysis As a threshold inquiry, District of Columbia choice of law analysis requires a determination of whether a “true conflict” exists. GEICO v. Fetisoff, 958 F.2d 1137, 1141 (D.C.Cir.1992). The true conflict test asks whether more than one jurisdiction has a potential interest in having its law applied and, if so, whether the law of the competing jurisdiction is different. See id. A false conflict exists when either (1) the laws of the interested states are the same; (2) when those laws, though different, produce the same result when applied to the facts at issue; or (3) when the policies of one state would be advanced by the application of its laws and the policies of the states whose laws are claimed to be in conflict would not be advanced by application of their law. Long v. Sears Roebuck & Co., 877 F.Supp. 8, 11 (D.D.C.1995); accord Biscoe v. Arlington County, 738 F.2d 1352, 1360 (D.C.Cir.1984). If a true conflict exists, the court follows the District of Columbia’s choice-of-law principles, which utilize a “constructive blending” of two distinct analyses; the “governmental interests” analysis and the “most significant relationship” test. Hercules & Co., Ltd. v. Shama Rest. Corp., 566 A.2d 31, 41 n. 18 (D.C.1989); see also, Stephen A. Goldberg Co. v. Remsen Partners, Ltd., 170 F.3d 191, 194 (D.C.Cir.1999); Virtual Dev., 133 F.Supp.2d at 15. “Under the governmental interests analysis as so refined, we must evaluate the" }, { "docid": "9397731", "title": "", "text": "requires a determination of whether a “true conflict” exists. GEICO v. Fetisoff, 958 F.2d 1137, 1141 (D.C.Cir.1992). The true conflict test asks whether more than one jurisdiction has a potential interest in having its law applied, and, if so, whether the law of the competing jurisdiction is different. See id. A false conflict exists when either (1) the laws of interested states are the same; (2) when those laws, though different, produce the same result when applied to the facts at issue; or (3) when the policies of one state would be advanced by the application of its laws and the policies of the states whose laws are claimed to conflict would not be advanced by the application of their law. Long v. Sears Roebuck & Co., 877 F.Supp. 8, 11 (D.D.C.1995); accord Biscoe v. Arlington County, 738 F.2d 1352, 1360 (D.C.Cir.1984). If a true conflict exists, the court follows the District of Columbia’s choice-of-law principles, which utilize “constructive blending” of two distinct analyses; the “governmental interests” analysis and the “most significant relationship” test. Hercules & Co. v. Shama Rest. Corp., 566 A.2d 31, 41 n. 18 (D.C.1989); see also Stephen A. Goldberg Co. v. Remsen Partners, Ltd., 170 F.3d 191, 194 (D.C.Cir.1999); Virtual Def, Dev. Int’l, Inc. v. Republic of Moldova, 133 F.Supp.2d 9, 15 (D.D.C.2001). “Under the governmental interests analysis as so refined, we must evaluate the governmental policies underlying the applicable laws and determine which jurisdiction’s policy would be most advanced by having its law applied to the facts of the case under review.” Hercules & Co., 566 A.2d at 40. In determining which jurisdiction has the most significant relationship to the dispute, there are four relevant factors under the Restatement: (1) “the place where the injury occurred”; (2) “the place where the conduct causing the injury occurred”; (3) “the domicile, residence, nationality, place of incorporation and place of business of the parties”; and (4) “the place where the relationship, if any, between the parties is centered.” Restatement (Seoond) of ConfliCt of Laws § 145 (1971); Hercules, 566 A.2d at 42 (adopting the Restatement (Second) of Conflict" }, { "docid": "11634575", "title": "", "text": "A false conflict exists when either (1) the laws of the interested states are the same; (2) when those laws, though different, produce the same result when applied to the facts at issue; or (3) when the policies of one state would be advanced by the application of its laws and the policies of the states whose laws are claimed to be in conflict would not be advanced by application of their law. Long v. Sears Roebuck & Co., 877 F.Supp. 8, 11 (D.D.C.1995); accord Biscoe v. Arlington County, 738 F.2d 1352, 1360 (D.C.Cir.1984). If a true conflict exists, the court follows the District of Columbia’s choice-of-law principles, which utilize a “constructive blending” of two distinct analyses; the “governmental interests” analysis and the “most significant relationship” test. Hercules & Co., Ltd. v. Shama Rest. Corp., 566 A.2d 31, 41 n. 18 (D.C.1989); see also, Stephen A. Goldberg Co. v. Remsen Partners, Ltd., 170 F.3d 191, 194 (D.C.Cir.1999); Virtual Dev., 133 F.Supp.2d at 15. “Under the governmental interests analysis as so refined, we must evaluate the governmental policies underlying the applicable laws and determine which jurisdiction’s policy would be most advanced by having its law applied to the facts of the case under review.” Hercules & Co., 566 A.2d at 40. In determining which jurisdiction has the most significant relationship to the dispute, there are four relevant factors under the Restatement: (1) “the place where the injury occurred”; (2) “the place where the conduct causing the injury occurred”; (3) “the domicile, residence, nationality, place of incorporation and place of business of the parties”; and (4) “the place where the relationship, if any, between the parties is centered.” Restatement (Second) of Conflict of Laws § 145 (1971); Hercules, 566 A.2d at 42 (adopting the Restatement (Second) of Conflict of Laws § 145). Section 145 also references § 6 of the Restatement for the courts to consider: [w]hen there is no [state statutory directive on choice-of-law,] the factors relevant to the choice of the applicable rule of law include (a) the needs of the interstate and international systems, (b) the relevant policies of" }, { "docid": "4917890", "title": "", "text": "43, 46. Additionally, Ms. Kiwanuka alleges that the defendants took affirmative steps to prevent Ms. Kiwanuka from initiating legal proceedings to vindicate her rights. While Ms. Kiwanuka was in the United States, the defendants confiscated her identity documents and passport, threatened her with deportation, and forced her to remain completely dependent upon them. Id. ¶¶ 27, 34. And when Ms. Kiwanuka returned to Tanzania, Ms. Bakilana refused to return Ms. Kiwanuka’s passport, and Ms. Bakilana’s family retained possession of Ms. Kiwanuka’s passport and belongings. Id. ¶¶ 50, 52. At the present stage, these allegations are sufficient to establish a claim of equitable tolling. The Court finds that the plaintiff has made an adequate showing that the statute of limitations did not begin to run until July 2009, when Ms. Kiwanuka’s first contact and cooperation with the FBI took place. Therefore, regardless of whether the two-year or three-year statute of limitations in 29 U.S.C. § 255(a) applies, Ms. Kiwanuka’s complaint—filed in August 2010—was timely filed. Accordingly, dismissal of Ms. Kiwanuka’s FLSA complaint on statute of limitations grounds would be improper. 2. State Law Claims The defendants also argue that the plaintiffs state law claims are time-barred by the applicable statute of limitations. Without engaging in a choice-of-law analysis, both parties seem to agree that Virginia law provides the applicable statute of limitations for each of these state law claims. However, to determine which state’s law applies, the Court must use the choice-of-law rules of the District of Columbia. See Oveissi v. Islamic Republic of Iran, 573 F.3d 835, 842 (D.C.Cir.2009). The District of Columbia blends a “governmental interests analysis” with a “most significant relationship” test. Id. (citing Hercules & Co., Ltd. v. Shama Rest. Corp., 566 A.2d 31, 40-41 & n. 18 (D.C.1989)). Under the governmental interests analysis, courts must evaluate the governmental policies underlying the applicable laws and determine which jurisdiction’s policy would be most advanced by having its law applied. Id. This typically leads to the application of the law of the plaintiffs domicile, as the state with the greatest interest in redressing injuries to its citizens. Kirschenbaum v." }, { "docid": "4917891", "title": "", "text": "grounds would be improper. 2. State Law Claims The defendants also argue that the plaintiffs state law claims are time-barred by the applicable statute of limitations. Without engaging in a choice-of-law analysis, both parties seem to agree that Virginia law provides the applicable statute of limitations for each of these state law claims. However, to determine which state’s law applies, the Court must use the choice-of-law rules of the District of Columbia. See Oveissi v. Islamic Republic of Iran, 573 F.3d 835, 842 (D.C.Cir.2009). The District of Columbia blends a “governmental interests analysis” with a “most significant relationship” test. Id. (citing Hercules & Co., Ltd. v. Shama Rest. Corp., 566 A.2d 31, 40-41 & n. 18 (D.C.1989)). Under the governmental interests analysis, courts must evaluate the governmental policies underlying the applicable laws and determine which jurisdiction’s policy would be most advanced by having its law applied. Id. This typically leads to the application of the law of the plaintiffs domicile, as the state with the greatest interest in redressing injuries to its citizens. Kirschenbaum v. Islamic Republic of Iran, 572 F.Supp.2d 200, 210 (D.D.C.2008). To determine which jurisdiction has the most significant relationship to a case, courts must consider (1) the place where the injury occurred, (2) the place where the conduct causing the injury occurred, (3) the domicile, residence, nationality, place of incorporation and place of business of the parties, and (4) the place where the relationship between the parties is centered. Id. Applying the District of Columbia’s choice-of-law rules, the Court agrees with the parties that Virginia law governs Ms. Kiwanuka’s substantive state law claims. However, the District of Columbia’s choice-of-law rules consider the statute of limitations to be a procedural, not a substantive, matter. Reeves v. Eli Lilly & Co., 368 F.Supp.2d 11, 25 (D.D.C.2005); see also A.I. Trade Finance v. Petra Int’l Banking Corp., 62 F.3d 1454, 1458 (D.C.Cir.1995). Accordingly, the District of Columbia’s statute of limitations governs here. Under District of Columbia law, a plaintiff must bring a claim for unjust enrichment within three years from the time of accrual of the action. D.C.Code §" }, { "docid": "16275648", "title": "", "text": "Educ. Travel v. U.S. Dep’t of the Treasury, 545 F.3d 4, 11 (D.C.Cir. 2008), the substantive question will be whether a constitutional, statutory, or common law protection has extraterritorial reach or reaches non-resident aliens. B. The test for prudential standing “is not meant to be especially demanding,” and there “need be no indication of [legislative] purpose to benefit the would-be plaintiff.” Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 399, 107 S.Ct. 750, 93 L.Ed.2d 757 (1987). The question whether appellants would have prudential standing under the zone-of-interests test, assuming it applies, turns on what law provides the basis for the cause of action under District of Columbia choice of law rules, which the par ties agree apply. On cross-appeal Exxon challenges the district court’s choice of law analysis, and our review is de novo, Fetch v. Air Florida, Inc., 866 F.2d 1521, 1523 (D.C.Cir.1989). “To determine which jurisdiction’s substantive law governs a dispute, District of Columbia courts blend a ‘governmental interests analysis’ with a ‘most significant relationship’ test.” Oveissi v. Islamic Republic of Iran, 573 F.3d 835, 842 (D.C.Cir.2009) (quoting Hercules & Co., Ltd. v. Sham a Rest. Corp., 566 A.2d 31, 40-41 & n. 18 (D.C.1989)). “Under the governmental interests analysis!,] ... [a court] must evaluate the governmental policies underlying the applicable laws and determine which jurisdiction’s policy would be most advanced by having its law applied to the facts of the case under review.” Id. (quoting Hercules, 566 A.2d at 41) (alterations in original). “To determine which jurisdiction has the most significant relationship to a case, a court must consider ...: (1) ‘the place where the injury occurred’; (2) ‘the place where the conduct causing the injury occurred’; (3) ‘the domicile], residence, nationality, place of incorporation and place of business of the parties’; and (4) ‘the place where the relationship, if any, between the parties is centered.’ ” Id. (quoting Restatement (Second) of Conflict of Law § 145(2) (1971)). The District of Columbia courts follow section 145 of the Restatement, see Rymer v. Pool, 574 A.2d 283, 286 (D.C. 1990), a comment to which states: “When certain" }, { "docid": "6316693", "title": "", "text": "In a FSIA case such as this, District of Columbia choice-of-law rules apply to issues governed by state law. Virtual Def. and Dev., Int'l, Inc. v. The Republic of Moldova, 133 F.Supp.2d 9, 15 (D.D.C.2001) (holding that the goal expressed in § 1606 “of applying identical substantive laws to foreign states and private individuals cannot be achieved ... unless a federal court utilizes the same choice-of-law analysis in FSIA cases as it would if all the parties of the action were private”). b. Legal Standard For District of Columbia Choice-of-Law Analysis As a threshold inquiry, District of Columbia choice of law analysis requires a determination of whether a “true conflict” exists. GEICO v. Fetisoff, 958 F.2d 1137, 1141 (D.C.Cir.1992). The true conflict test asks'whether more than one jurisdiction has a potential interest in having its law applied and, if so, whether the law of the competing jurisdiction is different. See id. A false conflict exists when either (1) the laws of the interested states are the same; (2) when those laws, though different, produce the same result when applied to the facts at issue; or (3) when the policies of one state would be advanced by the application of its laws and the policies of the states whose laws are claimed to be in conflict would not be advanced by application of their law. Long v. Sears Roebuck & Co., 877 F.Supp. 8, 11 (D.D.C.1995); accord Biscoe v. Arlington County, 738 F.2d 1352, 1360 (D.C.Cir.1984). If a true conflict exists, the court follows the District of Columbia’s choice-of-law principles, which utilize a “constructive blending” of two distinct analyses; the “governmental interests” analysis and the “most significant relationship” test. ’ Hercules & Co., Ltd. v. Shama Rest. Corp., 566 A.2d 31, 41 n. 18 (D.C.1989); see also, Stephen A. Goldberg Co. v. Remsen Partners, Ltd., 170 F.3d 191, 194 (D.C.Cir.1999); Virtual Dev., 133 F.Supp.2d at 15. “Under the governmental interests analysis as so refined, we must evaluate the governmental policies underlying the applicable laws and determine which jurisdiction’s policy would be most advanced by having its law applied to the facts" }, { "docid": "10083039", "title": "", "text": "as the state of Iran itself, Roeder, 333 F.3d at 234, and thus the same determinations apply to its conduct. Personal jurisdiction over a non-immune foreign sovereign exists so long as service of process has been made under section 1608 of the FSIA. See Stern v. Islamic Republic of Iran, 271 F.Supp.2d 286, 298 (D.D.C.2003) (Lamberth, J.). Such service has been made, and this Court has in personam jurisdiction over defendants Iran and the MOIS. III. Liability A. Proper Causes of Action Under the FSIA Once a foreign state’s immunity has been lifted under section 1605 and jurisdiction is proper, section 1606 provides that “the foreign state shall be liable in the same manner and to the same extent as a private individual under like circumstances.” 28 U.S.C. § 1606. Section 1606 acts as a “pass-through” to substantive causes of action against private individuals that may exist in federal, state or international law. See Dammarell II, 2005 WL 756090, at *8-10, 2005 U.S. Dist. LEXIS 5343, at *27-32. In this case, state law provides a basis for liability. First, the law of the United States applies rather than the law of the place of the tort or any other foreign law. This is because the United States has a “unique interest” in having its domestic law apply in cases involving terrorist attacks on United States citizens. See Dammarell II, 2005 WL 756090, at *20, 2005 U.S. Dist. LEXIS 5343, at *63. Second, the applicable state law is that of New Jersey and of California. As the forum state, District of Columbia choice of law rules apply to determine which state’s law shall apply. Under District of Columbia choice of law rules, courts employ a refined government interest analysis under which they “evaluate the governmental policies underlying the applicable laws and determine which jurisdiction’s policy would be most advanced by having its law applied to the facts of the case under review.” Hercules & Co. v. Shama Rest. Corp., 566 A.2d 31, 41 (D.C.1989) (citations and internal quotations omitted). This test typically leads to the application of the law of plaintiffs" }, { "docid": "9397732", "title": "", "text": "& Co. v. Shama Rest. Corp., 566 A.2d 31, 41 n. 18 (D.C.1989); see also Stephen A. Goldberg Co. v. Remsen Partners, Ltd., 170 F.3d 191, 194 (D.C.Cir.1999); Virtual Def, Dev. Int’l, Inc. v. Republic of Moldova, 133 F.Supp.2d 9, 15 (D.D.C.2001). “Under the governmental interests analysis as so refined, we must evaluate the governmental policies underlying the applicable laws and determine which jurisdiction’s policy would be most advanced by having its law applied to the facts of the case under review.” Hercules & Co., 566 A.2d at 40. In determining which jurisdiction has the most significant relationship to the dispute, there are four relevant factors under the Restatement: (1) “the place where the injury occurred”; (2) “the place where the conduct causing the injury occurred”; (3) “the domicile, residence, nationality, place of incorporation and place of business of the parties”; and (4) “the place where the relationship, if any, between the parties is centered.” Restatement (Seoond) of ConfliCt of Laws § 145 (1971); Hercules, 566 A.2d at 42 (adopting the Restatement (Second) of Conflict of Laws § 145). Section 145 also references § 6 of the Restatement for the courts to consider: When there is no [state statutory directive on choice of law,] the factors relevant to the choice of the applicable rule of law include (a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, (d) the protection of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity or result, and (g) ease in the determination of the law to be applied. Restatement (Seoond) of Conflict of Laws § 6 (1971); Dunkwu v. Neville, 575 A.2d 293, 296 (D.C.1990) (adopting the Restatement (Second) of Conflict of Laws § 6 (1971)). 2. Wrongful Death The plaintiffs propose two possible sources of law: (1) the law of the forum, the District of Columbia, or (2) the law of the Israel, where the plaintiffs are" }, { "docid": "19518441", "title": "", "text": "a \"viable\" option for those who are unable to invoke the federal cause of action, such as \"foreign family members\" like Bashar Al-Taie. Id. at 809. 1. Choice of Law In the absence of a federal cause of action, the Court must first consider what law applies. Because \"[t]he FSIA does not contain an express choice-of-law provision,\" the Court must apply the choice of law rules of the forum state. Oveissi v. Islamic Republic of Iran , 573 F.3d 835, 841 (D.C. Cir. 2009). The Court will, accordingly, apply District of Columbia choice of law principles. The District of Columbia uses a choice-of-law rule that \"blend[s] a 'governmental interest analysis' with a 'most significant relationship' test.\" Id. at 842 (quoting Hercules & Co., Ltd. v. Shama Rest. Corp. , 566 A.2d 31, 40-41 & n.18 (D.C. 1989) ). Under the governmental interest analysis, the Court \"must evaluate the governmental policies underlying the applicable laws and determine which jurisdiction's policy would be most advanced by having its law applied to the facts of the case under review.\" Id. (quoting Hercules & Co. ). And, under the \"most significant relationship test,\" the Court must consider the following four factors taken from the Restatement (Second) of Conflict of Laws: (1) \"the place where the injury occurred\"; (2) \"the place where the conduct causing the injury occurred\"; (3) \"the domicil[e], residence, nationality, place of incorporation and place of business of the parties\"; and (4) \"the place where the relationship, if any, between the parties is centered.\" Id. (quoting Restatement (Second) of Conflict of Laws § 145(2) (1971) ). Section 145 of the Restatement \"also references the factors in Section 6 of the Restatement, which include the needs of the interstate and the international systems, the relevant policies of the forum, the relevant policies of other interested states, certainty, predictability and uniformity of result, and ease in the determination and application of the law to be applied.\" Dammarell v. Islamic Republic of Iran , No. CIV. A. 01-2224JDB, 2005 WL 756090 at *18 (D.D.C. Mar. 29, 2005) (citing Restatement (Second) of Conflict of Laws §" }, { "docid": "20289378", "title": "", "text": "federal court. Id.; Murthy v. Vilsack, 609 F.3d 460, 464 (D.C.Cir.2010). Title VII plaintiffs are required to exhaust their administrative remedies with respect to each allegedly discriminatory or retaliatory act or lose the ability to recover for it. Morgan, 536 U.S. at 114-15, 122 S.Ct. 2061. However, a claim for a hostile work environment will not be time barred if all of the acts composing the claim are part of the same unlawful employment practice and at least one of these acts falls within the time period. Id. at 122, 122 S.Ct. 2061. D. Battery and Intentional Infliction of Emotional Distress Plaintiffs causes of action for intentional infliction of emotional distress and battery are based solely on state substantive law. To determine which state’s law applies, the Court must use the choice-of-law rules of the District of Columbia. See Oveissi v. Islamic Republic of Iran, 573 F.3d 835, 842 (D.C.Cir.2009). The District of Columbia blends a “governmental interests analysis” with a “most significant relationship” test. Id. (citing Hercules & Co., Ltd. v. Shama Rest. Corp., 566 A.2d 31, 40-41 & n. 18 (D.C.1989)). Under the governmental interests analysis, courts must evaluate the governmental policies underlying the applicable laws and determine which jurisdiction’s policy would be most advanced by having its law applied. Id. This typically leads to the application of the law of the plaintiffs domicile, as the state with the greatest interest in redressing injuries to its citizens. Kirschenbaum v. Islamic Republic of Iran, 572 F.Supp.2d 200, 210 (D.D.C.2008). To determine which jurisdiction has the most significant relationship to a case, courts must consider (1) the place where the injury occurred, (2) the place where the conduct causing the injury occurred, (3) the domicile, residence, nationality, place of incorporation and place of business of the parties, and (4) the place where the relationship between the parties is centered. Id. Applying the District of Columbia’s choice-of-law rules, the Court finds that the law of Maryland, where Ms. Berg bauer is domiciled, governs her claims for intentional infliction of emotional distress and battery. Under Maryland law, to make out a claim" }, { "docid": "2593871", "title": "", "text": "of action and applicable state law, and are precluded only from seeking a double recovery. See id. C. Choice of Law In circumstances where the federal cause of action is not available, courts must determine whether a cause of action is available under state or foreign law and engage in a choice of law analysis. Federal courts addressing FSIA claims in the District of Columbia apply the choice of law rules of the forum state. Oveissi v. Islamic Republic of Iran, 573 F.3d 835, 840 (D.C.Cir.2009); Dammarell, 2005 WL 756090, at *18. This Court will therefore look to the choice of law rules of the District of Columbia in this case. Under District of Columbia choice of law rules, the court must first determine whether a conflict exists between the law of the forum and the law of the alternative jurisdiction. If there is no true conflict, the court should apply the law of the forum. See USA Waste of Md., Inc. v. Love, 954 A.2d 1027, 1032 (D.C.2008) (“A conflict of laws does not exist when the laws of the different jurisdictions are identical or would produce the identical result on the facts presented.”). If a conflict is present, the District of Columbia employs a “ ‘constructive blending’ of the ‘government interests’ analysis and the ‘most significant relationship’ test” to determine which law to apply. Oveissi, 573 F.3d at 842; Dammarell, 2005 WL 756090, at *18 (citation omitted). In Dammarell, an FSIA case that involved the 1983 bombing of the U.S. embassy in Beirut, Lebanon, this Court explained that “under the governmental interests analysis as so refined, we must evaluate the governmental policies underlying the applicable laws and determine which jurisdiction’s policy would be most advanced by having its law applied to the facts of the case under review.” 2005 WL 756090, at *18. For the “ ‘most significant relationship’ component of the analysis, the D.C. Court of Appeals directs courts to section 145 of the Restatement of the Conflict of Laws, which identifies four relevant factors: (i) ‘the place where the injury occurred’; (ii) ‘the place where the" }, { "docid": "21898684", "title": "", "text": "v. Crowley, 849 F.2d 639, 641 (D.C.Cir.1988). The District of Columbia employs a modified “governmental interest analysis,” under which the court must evaluate the governmental policies underlying the applicable laws and then determine which jurisdiction’s policy would be most advanced by having its law applied to the facts in the case. Id.; Moore v. Ronald Hsu Const. Co., Inc., 576 A.2d 734, 737 (D.C.1990) (citations omitted). Under proper conflict of laws principles, the Court is to conduct the choice of law analysis for each distinct issue being adjudicated. In re Air Crash Disaster at Washington, D.C., 559 F.Supp. 333, 341 (D.D.C.1983). In applying the governmental interests analysis, the courts of the District of Columbia look to the Restatement (Second) of Conflict of Laws to identify the jurisdiction with the “most significant relationship” to each issue in dispute. Hercules & Co., Ltd. v. Shama Restaurant Corp., 566 A.2d 31, 40 (D.C.1989). To determine which state has the most significant relationship to the dispute, the Court examines a list of contacts that states might have with the litigation. In a tort action, the Court considers the place where the injury occurred, the place where the conduct causing the injury occurred, the residence, domicile, place of incorporation or place of business of the parties, and the place where the parties’ relationship, if any, is centered. Restatement (Second) of Conflict of Laws § 145 (1971). While the Restatement includes a long list of factors to be considered in evaluating the relevant importance of these contacts with the jurisdiction, see Restatement (Second) of Conflict of Laws § 6 (1971), the most important factors the Court should consider in a tort action are the relevant policies of the forum and of other interested states and the relative interests of those states in the determination of the particular issues. In re Air Crash Disaster at Washington, D.C., 559 F.Supp. at 342. First, the Court must determine whether there is a genuine conflict between the laws of the involved jurisdictions or whether there is a “false conflict.” Eli Lilly & Co. v. Home Ins. Co., 764 F.2d 876," }, { "docid": "6316694", "title": "", "text": "same result when applied to the facts at issue; or (3) when the policies of one state would be advanced by the application of its laws and the policies of the states whose laws are claimed to be in conflict would not be advanced by application of their law. Long v. Sears Roebuck & Co., 877 F.Supp. 8, 11 (D.D.C.1995); accord Biscoe v. Arlington County, 738 F.2d 1352, 1360 (D.C.Cir.1984). If a true conflict exists, the court follows the District of Columbia’s choice-of-law principles, which utilize a “constructive blending” of two distinct analyses; the “governmental interests” analysis and the “most significant relationship” test. ’ Hercules & Co., Ltd. v. Shama Rest. Corp., 566 A.2d 31, 41 n. 18 (D.C.1989); see also, Stephen A. Goldberg Co. v. Remsen Partners, Ltd., 170 F.3d 191, 194 (D.C.Cir.1999); Virtual Dev., 133 F.Supp.2d at 15. “Under the governmental interests analysis as so refined, we must evaluate the governmental policies underlying the applicable laws and determine which jurisdiction’s policy would be most advanced by having its law applied to the facts of the case under review.” Hercules & Co., 566 A.2d at 40. In determining which jurisdiction has the most significant relationship to the dispute, there are four relevant factors under the Restatement: (1) “the place where the injury occurred”; (2) “the place where the conduct causing the injury occurred”; (3) “the domicile, residence, nationality, place of incorporation and place of business of the parties”; and (4) “the place where the relationship, if any, between the parties is centered.” Restatement (Second) of Conflict of Laws § 145 (1971); Hercules, 566 A.2d at 42 (adopting the Restatement (Second) of Conflict of Laws § 145). Section 145 also references § 6 of the Restatement for the courts to consider: [wjhen there is no [state statutory directive on choice-of-law,] the factors relevant to the choice of the applicable rule of law include (a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular" }, { "docid": "17636677", "title": "", "text": "§ 1605(a)(7), this Court has in person-am jurisdiction over defendants Iran and MOIS. III. Liability A. Proper Causes of Action Under the FSIA Section 1605(a)(7) is “merely a jurisdiction-conferring provision that does not otherwise provide a cause of action against either a foreign state or its agents.” Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d 1024, 1032 (D.C.Cir.2004). Once a foreign state’s immunity has been lifted under § 1605 and jurisdiction is proper, § 1606 provides that “the foreign state shall be liable in the same manner and to the same extent as a private individual under like circumstances.” 28 U.S.C. § 1606. Section 1606 acts as a “pass-through” to substantive causes of action against private individuals that may exist in federal, state or international law. See Dammarell v. Islamic Republic of Iran, Civ. A. No. 01-2224, 2005 WL 756090, at *8-10 (D.D.C. Mar. 29, 2005) (Bates, J.). In this case, state law provides a basis for liability. First, the law of the United States applies rather than the law of the place of the tort or any other foreign law. This is because the United States has a “unique interest” in having its domestic law apply in cases involving terrorist attacks on United States citizens. Id. at *20. This Court must next determine which state’s law to apply. As the forum state, District of Columbia choice of law rules guide the Court’s analysis. Under District of Columbia choice of law rules, courts employ a refined government interest analysis under which courts “evaluate the governmental policies underlying the applicable laws and determine which jurisdiction’s policy would be most advanced by having its law applied to the facts of the case under review.” Hercules & Co. v. Shama Rest. Corp., 566 A.2d 31, 41 (D.C.1989) (citations and internal quotations omitted). This test typically leads to the application of the law of plaintiffs domicile, as the state with the greatest interest in providing redress to its citizens. See Dammarell, 2005 WL 756090, at *20-21. Here, each plaintiff was domiciled in New York at the time of the attack, and the Court —" }, { "docid": "1923870", "title": "", "text": "Court would use the choice-of-law rules of the forum state in order to determine which state’s law should apply. Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). Here, this Court would look to District of Columbia choice-of-law rules to determine whether its law or Minnesota law should apply to the question of whether collateral estoppel should preclude plaintiffs remaining claims. District of Columbia courts use a “governmental interests” analysis in choice-of-law cases. The test involves determining which jurisdiction’s policy would be more advanced by the application of its law to the facts of the case under review. District of Columbia v. Coleman, 667 A.2d 811, 816 (D.C.1995); see also Hercules & Co. v. Shama Restaurant, 566 A.2d 31 (D.C.1989); Estrada v. Potomac Elec. Power Co., 488 A.2d 1359 (D.C.1985). Incorporated into the analysis are the four factors identified by the Restatement of Conflicts of Laws § 145:(1) where the injury occurred; (2) where the conduct causing the injury occurred; (3) the domicile, residence, nationality, place of incorporation and place of business of the parties; (4) where the relationship is centered. Hercules & Co., 566 A.2d at 40-41. Additionally, part of the test of determining the jurisdiction whose policy would be most advanced is determining which jurisdiction has the most significant relationship to the dispute. Id. at 41 n. 18. In this case, both the District of Columbia and Minnesota have an interest in furthering the equitable and efficiency policies underlying collateral estoppel. As this Court noted in its discussion of venue in its original opinion, a substantial portion of the events giving rise to the claim occurred in the District of Columbia; similarly, the solicitation, formation of the partnership, and the pre-purchase activity which forms the basis of plaintiffs’ claims occurred in the District of Columbia. Mem. Op. 14-15. When, as here, both jurisdictions have an interest in applying their law, “the forum law will be applied unless the foreign jurisdiction has a greater interest in the controversy.” Coleman, 667 A.2d at 816 (citations omitted). Therefore, District of Columbia law should" }, { "docid": "16275649", "title": "", "text": "573 F.3d 835, 842 (D.C.Cir.2009) (quoting Hercules & Co., Ltd. v. Sham a Rest. Corp., 566 A.2d 31, 40-41 & n. 18 (D.C.1989)). “Under the governmental interests analysis!,] ... [a court] must evaluate the governmental policies underlying the applicable laws and determine which jurisdiction’s policy would be most advanced by having its law applied to the facts of the case under review.” Id. (quoting Hercules, 566 A.2d at 41) (alterations in original). “To determine which jurisdiction has the most significant relationship to a case, a court must consider ...: (1) ‘the place where the injury occurred’; (2) ‘the place where the conduct causing the injury occurred’; (3) ‘the domicile], residence, nationality, place of incorporation and place of business of the parties’; and (4) ‘the place where the relationship, if any, between the parties is centered.’ ” Id. (quoting Restatement (Second) of Conflict of Law § 145(2) (1971)). The District of Columbia courts follow section 145 of the Restatement, see Rymer v. Pool, 574 A.2d 283, 286 (D.C. 1990), a comment to which states: “When certain contacts involving a tort are located in two or more states with identical local law rules on the issue in question, the case will be treated for choice-of-law purposes as if those contacts were grouped in a single state.” Restatement (Second) of Conflict of Law § 145, cmt. i; see also Simon v. United States, 341 F.3d 193, 198 n. 3 (3d Cir.2003). The district court concluded that there was no conflict among the laws of the District of Columbia, Delaware, New Jersey, and Texas, except as to the wrongful death claim as to which the district court applied Delaware law. These are the jurisdictions in which Exxon is a legal resident and where appellants allege some of the tortious conduct occurred. The district court, however, compared the interest of the United States in applying District of Columbia law to the interest of Indonesia. See Doe I v. Exxon Mobil Corp., No. Civ.A.01-1357, 2006 WL 516744, at *2 (D.D.C. Mar. 2, 2006). But the foreign affairs interest of the United States identified by the district" } ]

[ { "docid": "16996395", "title": "", "text": "The contract provided for payment of $3.00 per hundredweight as liquidated damages if the dealer contracting with the CCC purchased potatoes from an ineligible grower. £1] The learned Trial Judge held, as a conclusion of law, that the provision for liquidated damages “is in the nature of a penalty under the circumstances of this case” and gave the plaintiff judgment for nominal damages only. This appeal followed. The sole question before us is the correctness of refusal by the District Court to award the plaintiff the amount stipulated for in the contract and called liquidated damages. It is hardly necessary to add that the name given to the provision in the contract does not determine whether it is to be treated as liquidated damages or as a penalty. The first question met is the law by which we are to be guided in deciding the case. Many New Jersey decisions have been cited to us. We think it clear that they do not control. The latest Supreme Court decision involving the validity of a liquidated damage provision in a contract made by a United States agency is Priebe & Sons, Inc. v. United States, 1947, 332 U.S. 407, 68 S.Ct. 123, 126, 92 L.Ed. 32. Mr. Justice Douglas, speaking for the majority, applies to the question concerning a stipulation for liquidated damages “the principles of general contract law.” The very vigorous minority, in two dissenting opinions, denies the right of the courts to exercise judicial supervision over the liquidated damage term in a contract inserted by government agencies in pursuance of Congressional authority. But neither majority nor minority so much as hints that state law controls. Indeed, in view of the principle declared by the Court in Clear-field Trust Co. v. United States, 1943, 318 U.S. 363, 63 S.Ct. 573, 87 L.Ed. 838, it seems clear to us that whatever the rule is to be, it is not to be determined by reference to decisions of any particular state. However, the question is not, we think, of controlling importance here. The general principle with regard to liquidated damages is not" } ]

[ { "docid": "16761003", "title": "", "text": "or of establishing its amount with the requisite certainty ... the easier it is to show that the amount fixed is reasonable.” Restatement (Second) of Contracts § 356 comment b. Considerable deference is given to the parties’ reasonable agreement as to the amount of liquidated damages where losses are difficult to quantify. Lynch v. Andrew, 481 N.E.2d at 1386; Kroeger v. Stop & Shop Cos., 13 Mass.App.Ct. 310, 432 N.E.2d 566, 573 (1982). That deference, however, is not unlimited. In Colonial at Lynnfield, Inc. v. Sloan, we found that the liquidated damages provision at issue was a reasonable estimate of difficult to ascertain damages. We nonetheless found that the liquidated damages provision was an unenforceable penalty because no loss had been sustained as a result of the breach. 870 F.2d at 765. Liquidated damages must compensate for loss rather than punish for breach: “[A]n exaction of punishment for a breach which could produce no possible damage has long been deemed oppressive and unjust.” Priebe & Sons, Inc. v. United States, 332 U.S. 407, 413, 68 S.Ct. 123, 127, 92 L.Ed. 32 (1947). See also Dubinsky v. Wells Bros. Co., 218 Mass. 232, 105 N.E. 1004 (1914) (liquidated damages clause was unenforceable penalty because it was intended to secure performance; no substantial loss was sustained). There can be no question that the injury sustained by the City is difficult to quantify in monetary terms. Because Space Master breached its promise to provide classrooms for the City within 120 days, children had to attend classes in hallways, gymnasiums, auditoriums, and libraries; educational programs were compromised; and morale among teachers, students and administrators suffered. These conditions continued for over 200 days past the contract deadline. We have found no Massachusetts case directly on point; that is, where the injury involved harm to the public and was difficult to assess in monetary terms. Cases in other jurisdictions do allow such recovery. See Jennie-O-Foods, Inc. v. United States, 580 F.2d 400, 413, 217 Ct.Cl. 314 (1978) (upholding liquidated damages for “[cjosts to the public convenience and the temporary thwarting of the public goals that the" }, { "docid": "17706791", "title": "", "text": "price, route, or service of any motor carrier). Humboldt misconstrues Wise’s argument, however. Wise bases its penalty-versus-liquidated damages arguments on federal common law, not state law. We find Wise’s arguments persuasive and adopt the approach in Robins. In addition to the sources cited by Wise, we also note the following support for Wise’s position: The regulation allowing for the imposition of late payment penalties refers to them as “liquidated damages,” see 49 C.F.R. part 1320.2(g)(1), thus impliedly referencing the federal common law on liquidated damages. The Supreme Court has also recognized that the late payment penalties allowed in 49 C.F.R. part 1320.2(g) are to be treated as liquidated damages. See Transcon, 513 U.S. at 141, 115 S.Ct. 689. Finally, the ICC/STB has reiterated that late payment penalties must be reasonably tied to collection costs. See Delta Traffic Service, Inc. v. Mennen Co., 730 F.Supp. 1309, 1313 (D.N.J.1990) (stating on referral that 35% loss of discount late payment penalty was unreasonable because, inter alia, it was not related to the carriers costs). B. The courts below dismissed Wise’s reasonableness/penalty claim on the basis that Wise had presented no evidence that the late payment fees sought to be charged by Humboldt were unreasonable. Wise submitted no evidence indicating what other carriers charged as late payment fees. The bankruptcy court observed that “[i]t appears from the record here (and in related cases) that discounts — and discounts of the magnitude of Humboldt’s — were common in the trucking industry; that loss of discount penalties were common in the industry; and that this was accepted practice in the industry.” (J.A. at 38.) Wise, for its part, notes the general rule that liquidated damages are not a penalty only if such damages are “reasonable in the light of the anticipated or actual loss caused by the breach and the difficulties of proof of loss.” Restatement (Second) of Contracts § 356 (1981). See also Priebe & Sons, Inc. v. United States, 332 U.S. 407, 413, 68 S.Ct. 123, 92 L.Ed. 32 (1947). Wise asserts that it cannot seriously be questioned that the amount of liquidated damages" }, { "docid": "7813582", "title": "", "text": "part of the clause which establishes liquidated damages, and without reference at this time to the number of breaches, the Court cannot say, as a matter of law, that Zlatkiss did not anticipate that $10,000 could flow were there to be a breach of the agreements with PS. Compare Tamburo v. Calvin, No. 94-5206, 1995 WL 121539, at *7 (N.D.Ill. Mar. 17,1995) (unpublished) (noting that $1,500,000 for each violation of non-competition clause of software licensing agreement is “egregious”). In this regard, the present matter is not unlike Sloan, in which the decision to specify a liquidated sum appeared “reasonable in light of the difficulties that might have been anticipated in determining the precise amount of ... damages in the event of a breach.” Id., 870 F.2d at 765. Compare A-Z Servicenter, 138 N.E.2d at 267 (acceleration provision of mortgage note constituted a penalty). As PS argues, the $10,000 amount specified in the contracts could well approximate loss anticipated at the time the contracts were executed. Id. According to PS, prior to signing the agreements it consulted with AVN regarding damages and made it amply clear that an unauthorized use of the software would “cause PS irreparable damage.” (Defs.’ Ex. 8, ¶ 5.) As the First Circuit pointed out in Space Master, however, deference to the parties’ reasonable agreement as to the amount of liquidated damages is not unlimited. Id., 940 F.2d at 18. PS still has to prove some harm. See id. (liquidated damages provision may not be enforced when no loss has been sustained from a breach). As the First Circuit directs, “Liquidated damages must compensate for loss rather than punish for a breach: ‘(A)n exaction of punishment for a breach which could produce no possible damage has long been deemed oppressive and unjust.’” Id. (quoting Priebe & Sons, Inc., v. United States, 332 U.S. 407, 413, 68 S.Ct. 123, 126-27, 92 L.Ed. 32 (1947)). Of course, if PS is ultimately able to prove actual damages for a particular breach, even if those damages are imprecise, see Sloan, 870 F.2d at 767 n. 13, the trial court can still" }, { "docid": "20474514", "title": "", "text": "damages “serve a particularly useful function when damages are uncertain in nature or amount or are unmeasurable, as is the case in many government contracts.” Priebe & Sons, Inc. v. United States, 332 U.S. 407, 411, 68 S.Ct. 123, 92 L.Ed. 32 (1947). Thus, “[w]here parties have by their contract agreed upon a liquidated damages clause as a reasonable forecast of just compensation for breach of contract and damages are difficult to estimate accurately, such provision should be enforced.” Jennie-O Foods, Inc., 580 F.2d at 413-14; see also FAR 11.501 (noting that use of a liquidated damages clause is proper if damages “would be difficult or impossible to estimate accurately or prove” and that the “rate must be a reasonable forecast” of the anticipated damages). On the other hand, courts will not enforce a liquidated damages clause when the amount of liquidated damages is “plainly without reasonable relation to any probable damage which may follow a breach,” Kothe v. R.C. Taylor Trust, 280 U.S. 224, 226, 50 S.Ct. 142, 74 L.Ed. 382 (1930), or is “so extravagant, or so disproportionate to the amount of property loss, as to show that compensation was not the object aimed at or as to imply fraud, mistake, circumvention, or oppression,” Wise v. United States, 249 U.S. 361, 365, 39 S.Ct. 303, 63 L.Ed. 647 (1919). In these circumstances, liquidated damages amount to a penalty. Priebe & Sons, Inc., 332 U.S. at 413, 68 S.Ct. 123; United States v. Bethlehem, Steel Co., 205 U.S. 105, 118-21, 27 S.Ct. 450, 51 L.Ed. 731 (1907). When presented with a challenge to a liquidated damages clause, a court must judge the clause “as of the time of making the contract” and without regard to the amount of damages, if any, actually incurred by the nonbreaching party. Priebe & Sons, Inc., 332 U.S. at 412, 68 S.Ct. 123; accord Bethlehem Steel Co., 205 U.S. at 119, 27 S.Ct. 450 (noting that courts will enforce liquidated damages clauses “without proof of the damages actually sustained”); Steve Kirchdorfer, Inc. v. United States, 229 Ct.Cl. 560, 565-67 (1981) (upholding an award of" }, { "docid": "3939743", "title": "", "text": "enough to be considered a penalty, a court will usu[ally] not enforce that particular provision of the contract. Some contracts specify that a given sum of damages is intended 'as liquidated damages and not as a penalty' — but even that language is not foolproof.” The Court assumes that the statute refers to the former type of penalty, not the latter. . In some jurisdictions they are also regulated by statute. See Garrett v. Coast and Southern Federal Savings and Loan Assoc., 9 Cal.3d 731, 735 n. 1, 511 P.2d 1197, 1199 n. 1, 108 Cal.Rptr. 845, 847 n. 1 (1973): Civil Code section 1670 provides: \"Every contract by which the amount of damage to be paid, or other compensation to be made, for a breach of an obligation, is determined in anticipation thereof, is to that extent void, except as expressly provided in the next section.” Section 1671 defines and authorizes a liquidation of damages, stating, \"The parties to a contract may agree therein upon an amount which shall be presumed to be the amount of damage sustained by a breach thereof, when, from the nature of the case, it would be impracticable or extremely difficult to fix the actual damage.” . See Priebe & Sons v. United States, 332 U.S. 407, 411, 68 S.Ct. 123, 92 L.Ed. 32 (1947)(Liquidated damages provisions \"serve a particularly useful function when damages are uncertain in nature or amount or are unmeasurable[.]”); Wise v. United States, 249 U.S. 361, 365, 39 S.Ct. 303, 63 L.Ed. 647 (1919)(Liquidated damages may be enforceable when the damages are uncertain in nature or amount or are difficult of ascertainment.) . Some states laws look at either the time the contract was made or at the time of breach. Although most jurisdictions disfavor the enforcement of penalties under contract law, there is a split in authority on the proper method for determining whether a liquidated damages provision constitutes a penalty. One method, commonly referred to as the \"prospective approach,” focuses on the estimation of potential damages and the circumstances that existed at the time of contract formation. Under" }, { "docid": "754969", "title": "", "text": "F.2d 400, 412 (1978). Whether a liquidated damage provision is in fact unconscionable or an unenforceable penalty provision is a matter of law to be determined by the Court in light of all the circumstances. See In re United Merchants & Mfrs., Inc., 674 F.2d 134, 141 (2d Cir.1982) (New York law); In re Construction Diversification, Inc., 36 B.R. 434, 436 (1983) (applying Michigan law). The general rule for determining if a liquidated damages provision is valid and enforceable was aptly stated by the United States Supreme Court in Priebe & Sons, Inc. v. United States, 332 U.S. 407, 68 S.Ct. 123, 92 L.Ed. 32 (1947): * * * When they [liquidated damages provisions] are fair and reasonable attempts to fix just compensation for anticipated loss caused by breach of contract, they are enforced. * * * They serve a particularly useful function when damages are uncertain in nature or amount or are unmeasurable, as is the case in many government contracts. * * * And the fact that the damages suffered are shown to be less than the damages contracted for is not fatal. These provisions are to be judged as of the time of making the contract. 332 U.S. at 411-12, 68 S.Ct. at 125-26; see also Higgs v. United States, 546 F.2d 373, 377, 212 Ct.Cl. 146 (1976); Steffen v. United States, 213 F.2d 266, 270 (6th Cir.1954); United States v. Bethlehem Steel Co., 205 U.S. at 120-21, 27 S.Ct. at 455-56. In the instant case, the damages for breach of the scholarship contract under the NHSC scholarship program are clearly outlined by statute. Where a scholarship recipient fails to complete his medical training, the amount of the damages required to be repaid to the government is simply the amounts which have been paid to such person under the scholarship program. 42 U.S.C. § 254o (a). However, where a recipient completes his or her medical training and fails to commence his or her service obligation under the contract, the damages are set according to an algebraic formula at approximately three times the principal plus the interest. 42" }, { "docid": "8784623", "title": "", "text": "Appellant under the contract. We cannot overlook the fact, too,, that 45% of the retained amount was a gift from the P. W. A. for the purpose of assisting in building a bridge and not for the purpose of unjustly enriching the City. Under all the facts and circumstances of this case, the enforcement of the provision in question would be inequitable and unreasonable, and would amount to the infliction of a penalty rather than the allowance of liquidated damages. The judgment of the lower Court is reversed and the cause remanded for further proceedings not inconsistent with the views herein expressed. Reversed and remanded. Shields v. Early, 132 Miss. 282, 95 So. 839. In Chicago Investment Company v. Haidtner, 167 Miss. 875, 148 So. 214, text 217, the Supreme Court of Mississippi said: “It is quite dear that parties may agree to liquidated damages and that equity will recognize and enforce that agreement if it is reasonable and proper under all the circumstances of the particular case, but an agreement for a stipulation of a fixed sum as liquidated damages is not infallible and in all cases binding upon a court of equity. This agroement may always be examined, and if the court be of the opinion that it is a penalty and unreasonable it will not enforce the stipulation, notwithstanding the declaration therein, the court will look through the form to the substance.” The lower Court held that the agreement for liquidated damages must be reasonable and proper under all the circumstances and cited with approval the case of Chicago Investment Company v. Hardtner, supra." }, { "docid": "19231836", "title": "", "text": "circumvention, or oppression,” Wise v. United States, 249 U.S. 361, 365, 39 S.Ct. 303, 63 L.Ed. 647 (1919). In these circumstances, liquidated damages amount to a penalty. Priebe & Sons, Inc., 332 U.S. at 413, 68 S.Ct. 123; United States v. Bethlehem Steel Co., 205 U.S. 105, 118-21, 27 S.Ct. 450, 51 L.Ed. 731 (1907). When presented with a challenge to a liquidated damages clause, a court must judge the clause “as of the time of making the contract” and without regard to the amount of damages, if any, actually incurred by the nonbreaching party. Priebe & Sons, Inc., 332 U.S. at 412, 68 S.Ct. 123; accord Bethlehem Steel Co., 205 U.S. at 119, 27 S.Ct. 450 (noting that courts will enforce liquidated damages clauses “without proof of the dam ages actually sustained”); Steve Kirchdorfer, Inc. v. United States, 229 Ct.Cl. 560, 565-67 (1981) (upholding an award of liquidated damages although no actual damages were sustained); Young Assocs., Inc. v. United States, 471 F.2d 618, 622 (Ct.Cl.1973) (“It is enough if the amount stipulated is reasonable for the particular agreement at the time it is made.”). The party challenging a liquidated damages clause — typically, in government procurement cases, the contractor — bears the burden of proving that the clause is not a penalty. DJ Mfg. Corp., 86 F.3d at 1134; Jennie-O Foods, Inc., 580 F.2d at 414. The burden is a heavy one “because when damages are uncertain or hard to measure, it naturally follows that it is difficult to conclude that a particular liquidated damages amount or rate is an unreasonable projection of what those damages might be.” DJ Mfg. Corp., 86 F.3d at 1134. And because of this difficulty, it is generally improper for a court “to inquire into the process that the contracting officer followed in arriving at the liquidated damages figure that was put forth in the solicitation and agreed to in the contract.” Id. at 1137; see also id. at 1136 (noting that courts will enforce a liquidated damages clause, “regardless of how the liquidated damage figure was arrived at,” if the amount of" }, { "docid": "19231835", "title": "", "text": "Inc. v. United States, 332 U.S. 407, 411, 68 S.Ct. 123, 92 L.Ed. 32 (1947). Thus, “[w]here parties have by their contract agreed upon a liquidated damages clause as a reasonable forecast of just compensation for breach of contract and damages are difficult to estimate accurately, such provision should be enforced.” Jennie-O Foods, Inc., 580 F.2d at 413-14; see also FAR 11.501 (noting that use of a liquidated damages clause is proper if damages “would be difficult or impossible to estimate accurately or prove” and that the “rate must be a reasonable forecast” of the anticipated damages). On the other hand, courts will not enforce a liquidated damages clause when the amount of liquidated damages is “plainly without reasonable relation to any probable damage which may follow a breach,” Kothe v. R.C. Taylor Trust, 280 U.S. 224, 226, 50 S.Ct. 142, 74 L.Ed. 382 (1930), or is “so extravagant, or so disproportionate to the amount of property loss, as to show that compensation was not the object aimed at or as to imply fraud, mistake, circumvention, or oppression,” Wise v. United States, 249 U.S. 361, 365, 39 S.Ct. 303, 63 L.Ed. 647 (1919). In these circumstances, liquidated damages amount to a penalty. Priebe & Sons, Inc., 332 U.S. at 413, 68 S.Ct. 123; United States v. Bethlehem Steel Co., 205 U.S. 105, 118-21, 27 S.Ct. 450, 51 L.Ed. 731 (1907). When presented with a challenge to a liquidated damages clause, a court must judge the clause “as of the time of making the contract” and without regard to the amount of damages, if any, actually incurred by the nonbreaching party. Priebe & Sons, Inc., 332 U.S. at 412, 68 S.Ct. 123; accord Bethlehem Steel Co., 205 U.S. at 119, 27 S.Ct. 450 (noting that courts will enforce liquidated damages clauses “without proof of the dam ages actually sustained”); Steve Kirchdorfer, Inc. v. United States, 229 Ct.Cl. 560, 565-67 (1981) (upholding an award of liquidated damages although no actual damages were sustained); Young Assocs., Inc. v. United States, 471 F.2d 618, 622 (Ct.Cl.1973) (“It is enough if the amount stipulated is" }, { "docid": "3939744", "title": "", "text": "amount of damage sustained by a breach thereof, when, from the nature of the case, it would be impracticable or extremely difficult to fix the actual damage.” . See Priebe & Sons v. United States, 332 U.S. 407, 411, 68 S.Ct. 123, 92 L.Ed. 32 (1947)(Liquidated damages provisions \"serve a particularly useful function when damages are uncertain in nature or amount or are unmeasurable[.]”); Wise v. United States, 249 U.S. 361, 365, 39 S.Ct. 303, 63 L.Ed. 647 (1919)(Liquidated damages may be enforceable when the damages are uncertain in nature or amount or are difficult of ascertainment.) . Some states laws look at either the time the contract was made or at the time of breach. Although most jurisdictions disfavor the enforcement of penalties under contract law, there is a split in authority on the proper method for determining whether a liquidated damages provision constitutes a penalty. One method, commonly referred to as the \"prospective approach,” focuses on the estimation of potential damages and the circumstances that existed at the time of contract formation. Under this approach, the amount of actual damages at the time of breach is of little or no significance to the recovery of liquidated damages. 22 AmJur.2d Damages § 723 (1988). If the liquidated sum is a reasonable prediction of potential damages and the damages are indeterminable or difficult to ascertain at the time of contract formation, then courts following the prospective approach will generally enforce the liquidated damages provision. See e.g., Gaines v. Jones, 486 F.2d 39, 46 (8th Cir.1973) (applying Missouri law); Brazen v. Bell Atl. Corp., 695 A.2d 43, 48 (Del.1997). In contrast, a second approach has developed in which courts not only analyze the estimation of damages at the time of contract formation, but also address whether the stipulated sum reasonably relates to the amount of actual damages caused by the breach. Under this retrospective approach, the estimation of potential damages and the difficulty in measuring damages remain integral factors for the courts' review. See e.g. Lake Ridge Academy v. Carney, 66 Ohio St.3d 376, 613 N.E.2d 183, 188-89 (1993); Highgate Assoc.," }, { "docid": "19999322", "title": "", "text": "the circumstances, however, and must not operate as a penalty. Rex Trailer Co. v. United States, 350 U.S. 148, 151, 76 S.Ct. 219, 221, 100 L.Ed. 149 (1956). More importantly, when such damages are determined to be fair and reasonable, the United States Supreme Court has held that they should be enforced. Wise v. United States, 249 U.S. 361, 365, 39 S.Ct. 303, 304, 63 L.Ed. 647 (1919); Priebe & Sons v. United States, 332 U.S. 407, 411-12, 68 S.Ct. 123, 126, 92 L.Ed. 32 (1947). In general, we have held that provisions for liquidated damages are not against public policy, particularly in cases involving government contracts. Cegers v. United States, 7 Cl.Ct. 615, 618 (1985); JMNI v. United States, 4 Cl.Ct. 310, 315 (1984). However, numerous safeguards have been imposed to ensure that the damages claimed are in fact fair and reasonable. Higgs v. United States, 212 Ct.Cl. 146, 156, 546 F.2d 373 (1976); Racine Screw Co. v. United States, 156 Ct.Cl. 256 (1962); Goldberger Foods, 23 Cl.Ct. at 312-13. For example, the “reasonability” or “fairness” of the “liquidated damages must be considered on a case-by-case basis.” Goldberger, 23 Cl.Ct. at 313. In addition, the government is allowed to assess liquidated damages against a contractor only where it has acted reasonably in attempting to mitigate costs to the contractor. Id. Moreover, “the right to claim liquidated damages may be waived if the government prevents or delays performance within the time stipulated by the contract.” Id. See Fortec Constructors v. United States, 8 Cl.Ct. 490, 508 (1985). In any event, the party alleging that the liquidated damages assessed are excessive or unreasonable must bear the burden of proving that said damages are inappropriate. Goldberger, 23 Cl.Ct. at 313. According to the facts herein, the government assessed liquidated damages in the amount of $46,750 (187 days at $250 per day), because of Youngdale’s delay in completing the project. The plaintiff, however, avers that it is entitled to the full $46,750 plus interest in light of the government’s concession as to the water differing site condition. Thus, given the foregoing relevant case" }, { "docid": "20474515", "title": "", "text": "“so extravagant, or so disproportionate to the amount of property loss, as to show that compensation was not the object aimed at or as to imply fraud, mistake, circumvention, or oppression,” Wise v. United States, 249 U.S. 361, 365, 39 S.Ct. 303, 63 L.Ed. 647 (1919). In these circumstances, liquidated damages amount to a penalty. Priebe & Sons, Inc., 332 U.S. at 413, 68 S.Ct. 123; United States v. Bethlehem, Steel Co., 205 U.S. 105, 118-21, 27 S.Ct. 450, 51 L.Ed. 731 (1907). When presented with a challenge to a liquidated damages clause, a court must judge the clause “as of the time of making the contract” and without regard to the amount of damages, if any, actually incurred by the nonbreaching party. Priebe & Sons, Inc., 332 U.S. at 412, 68 S.Ct. 123; accord Bethlehem Steel Co., 205 U.S. at 119, 27 S.Ct. 450 (noting that courts will enforce liquidated damages clauses “without proof of the damages actually sustained”); Steve Kirchdorfer, Inc. v. United States, 229 Ct.Cl. 560, 565-67 (1981) (upholding an award of liquidated damages although no actual damages were sustained); Young Assocs., Inc. v. United States, 471 F.2d 618, 622 (Ct.Cl.1973) (“It is enough if the amount stipulated is reasonable for the particular agreement at the time it is made.”). The party challenging a liquidated damages clause-typieally, in government procurement cases, the contractor-bears the burden of proving that the clause is a penalty. DJ Mfg. Corp., 86 F.3d at 1134; Jennie-O Foods, Inc., 580 F.2d at 414. The burden is a heavy one “because when damages are uncertain or hard to measure, it naturally follows that it is difficult to conclude that a particular liquidated damages amount or rate is an unreasonable projection of what those damages might be.” DJ Mfg. Corp., 86 F.3d at 1134. And because of this difficulty, it is generally improper for a court “to inquire into the process that the contracting officer followed in arriving at the liquidated damages figure that was put forth in the solicitation and agreed to in the contract.” Id. at 1137; see also id. at 1136 (noting" }, { "docid": "17706792", "title": "", "text": "dismissed Wise’s reasonableness/penalty claim on the basis that Wise had presented no evidence that the late payment fees sought to be charged by Humboldt were unreasonable. Wise submitted no evidence indicating what other carriers charged as late payment fees. The bankruptcy court observed that “[i]t appears from the record here (and in related cases) that discounts — and discounts of the magnitude of Humboldt’s — were common in the trucking industry; that loss of discount penalties were common in the industry; and that this was accepted practice in the industry.” (J.A. at 38.) Wise, for its part, notes the general rule that liquidated damages are not a penalty only if such damages are “reasonable in the light of the anticipated or actual loss caused by the breach and the difficulties of proof of loss.” Restatement (Second) of Contracts § 356 (1981). See also Priebe & Sons, Inc. v. United States, 332 U.S. 407, 413, 68 S.Ct. 123, 92 L.Ed. 32 (1947). Wise asserts that it cannot seriously be questioned that the amount of liquidated damages sought herein is grossly disproportionate to Humboldt’s actual damages and collection costs. The original freight charges were $6,224, while the “late payment” charges now sought to be collected are $6,544 — some 105% of the cost of the service itself. At this preliminary stage, we pay attention to what Wise contends. The test of “reasonableness” must be evaluated through the liquidated damages/penalty lens. Given the size of the late payment fees at issue in relation to the original charges, we find that, without further evidence, Wise has made a prima facie showing of unreasonableness. The court’s reliance on the fact that “everyone else is doing it” is misleading. The court noted that all other carriers provide steep discounts and include on their tariffs loss of discount provisions. While everyone agrees that large discounts are routinely given, see also Delta Traffic Service, 730 F.Supp. at 1313 (observing that since 1980 few shipments have moved at the full tariff rate), the key issue here is whether the penalty provisions are routinely ignored. We think that taking all" }, { "docid": "19044986", "title": "", "text": "S.Ct. 142, 74 L.Ed. 382 (1930), or is “so extravagant, or so disproportionate to the amount of property loss, as to show that compensation was not the object aimed at or as to imply fraud, mistake, circumvention, or oppression,” Wise v. United States, 249 U.S. 361, 365, 39 S.Ct. 303, 63 L.Ed. 647 (1919). In these circumstances, liquidated damages amount to a penalty. Priebe & Sons, Inc., 332 U.S. at 413, 68 S.Ct. 123; United States v. Bethlehem, Steel Co., 205 U.S. 105, 118-21, 27 S.Ct. 450, 51 L.Ed. 731 (1907). When presented with a challenge to a liquidated damages clause, a court must judge the clause “as of the time of making the contract” and without regard to the amount of damages, if any, actually incurred by the nonbreaching party. Priebe & Sons, Inc., 332 U.S. at 412, 68 S.Ct. 123; accord Bethlehem Steel Co., 205 U.S. at 119, 27 S.Ct. 450 (noting that courts will enforce liquidated damages clauses “-without proof of the damages actually sustained”); Steve Kirchdorfer, Inc. v. United States, 229 Ct.Cl. 560, 565-67 (1981) (upholding an award of liquidated damages although no actual damages were sustained); Young Assocs., Inc. v. United States, 471 F.2d 618, 622 (Ct.Cl.1973) (“It is enough if the amount stipulated is reasonable for the particular agreement at the time it is made.”). The party challenging a liquidated damages clause — typically, in government procurement cases, the contractor — bears the burden of proving that the clause is not a penalty. DJ Mfg. Corp., 86 F.3d at 1134; Jennie-O Foods, Inc., 580 F.2d at 414. The burden is a heavy one “because when damages are uncertain or hard to measure, it naturally follows that it is difficult to conclude that a particular liquidated damages amount or rate is an unreasonable projection of what those damages might be.” DJ Mfg. Corp., 86 F.3d at 1134. And because of this difficulty, it is generally improper for a court “to inquire into the process that the contracting officer followed in arriving at the liquidated damages figure that was put forth in the solicitation and agreed" }, { "docid": "754968", "title": "", "text": "strictly to deter physicians from breaching their contracts. A liquidated damage provision is “a sum fixed as an estimate made by the parties at the time when the contract is entered into, of the extent of injury which a breach will cause.” Williston, Contracts § 776; see also Pacific Hardware & Steel Co. v. United States, 48 Ct.Cl. 399, 406 (1913). At common law, contractual provisions calling for damages without regard to the extent or character of a subsequent breach were regarded as penalties and consequently unenforceable. Van Buren v. Digges, 11 How. (52 U.S.) 460, 461, 476, 13 L.Ed. 771 (1850); Sun Printing & Publishing Assoc. v. Moore, 183 U.S. 642, 22 S.Ct. 240, 46 L.Ed. 366 (1902). The modern trend is to permit the parties to a contract to determine damages in the event of breach without judicial interference unless such a provision is unreasonable or unconscionable. United States v. Bethlehem Steel Co., 205 U.S. 105, 27 S.Ct. 450, 51 L.Ed. 731 (1907); Jennie-O Foods, Inc. v. United States, 217 Ct.Cl. 314, 580 F.2d 400, 412 (1978). Whether a liquidated damage provision is in fact unconscionable or an unenforceable penalty provision is a matter of law to be determined by the Court in light of all the circumstances. See In re United Merchants & Mfrs., Inc., 674 F.2d 134, 141 (2d Cir.1982) (New York law); In re Construction Diversification, Inc., 36 B.R. 434, 436 (1983) (applying Michigan law). The general rule for determining if a liquidated damages provision is valid and enforceable was aptly stated by the United States Supreme Court in Priebe & Sons, Inc. v. United States, 332 U.S. 407, 68 S.Ct. 123, 92 L.Ed. 32 (1947): * * * When they [liquidated damages provisions] are fair and reasonable attempts to fix just compensation for anticipated loss caused by breach of contract, they are enforced. * * * They serve a particularly useful function when damages are uncertain in nature or amount or are unmeasurable, as is the case in many government contracts. * * * And the fact that the damages suffered are shown to" }, { "docid": "23694529", "title": "", "text": "Cegers v. United States, 7 Cl.Ct. 615, 620 (1985)). Courts presently look with candor upon provisions that are deliberately entered into between parties, United States v. Bethlehem Steel Co., 205 U.S. 105, 119, 27 S.Ct. 450, 455, 51 L.Ed. 731 (1907), and, therefore, do not look with disfavor upon liquidated damage stipulations. Priebe & Sons, Inc. v. United States, 332 U.S. 407, 411, 68 S.Ct. 123, 125, 92 L.Ed. 32 (1947). In Bethlehem Steel the court defined the applicable standard for determining whether a liquidated damages provision is proper by asking “what did the parties intend by the language used? When such intention is ascertained it is ordinarily the duty of the court to carry it out.” Bethlehem Steel, 205 U.S. at 119, 27 S.Ct. at 455. Here, plaintiff failed to establish that the intention of the parties was to do anything other than to execute a valid liquidated damages provision. In Priebe & Sons, the court found that the contract contained a provision for liquidated damages for delay in delivery upon demand, and that “[i]t ... is apparent that the only thing which could possibly injure the government would be failure to get prompt performance when delivery was due. We have no doubt of the validity of the provision for ‘liquidated damages’ when applied under those circumstances.” Priebe & Sons, 332 U.S. at 412, 68 S.Ct. at 126. Also, [tjoday the law does not look with disfavor upon ‘liquidated damages’ provisions in contracts. When they are fair and reasonable attempts to fix just compensation for anticipated loss caused by breach of contract, they are enforced. They serve a particularly useful function when damages are uncertain in nature or amount or are unmeasurable, as is the case in many government contracts. And the fact that the damages suffered are shown to be less than the damages contracted for is not fatal. These provisions are to be judged as of the time of making the contract. Id. at 411-12, 68 S.Ct. at 126 (citations omitted). In Rex Trailer Co. v. United States, 350 U.S. 148, 151-53, 76 S.Ct. 219, 221-22, 100" }, { "docid": "23501873", "title": "", "text": "165 F. 184; Miravalle Supply Co. v. El Campo Rice Milling Co., 8 Cir., 181 F.2d 679, certiorari denied, 340 U.S. 822, 71 S.Ct. 56, 95 L.Ed. 604; American Surety Co. v. Empson, 39 Colo. 445, 89 Pac. 967. One further attack upon the judgment merits consideration. The company contends that the Government invoked against it a penalty rather than liquidated damages. Though denominated as liquidated damages, a provision in a contract fixing an amount to be withheld or paid in case of default in performance which discloses that the amount bears no reasonable relation to-actual compensation or actual damages but is disproportionately in excess thereof is one-for penalty and not enforceable. McCall Co. v. Deuchler, 8 Cir., 174 F. 133. But a provision for the withholding or payment of a specified amount in case of breach in performance, deliberately entered into between parties having equal opportunity for understanding and insisting upon their rights, and bearing a reasonable relation to actual compensation or actual damages, is not disfavored in law. The tendency of a provision of that kind is to promote performance, and to adjust in advance on terms amicably chosen by the parties matters the settlement of which through courts often involve difficulty, uncertainty, delay, and expense. A provision of that nature in a contract of this kind will be enforced as liquidated damages where it is obvious that the extent of the loss which would result to the Government from delay in performance must be uncertain and difficult to determine with precision. And such a provision is not rendered infirm or inoperative merely because the damage specified exceeds that actually sustained. Priebe & Sons v. United States, 332 U.S. 407, 68 S.Ct. 123, 92 L.Ed. 32; United States v. Le Roy Dyal Co., 3 Cir., 186 F.2d 460, certiorari denied, 341 U.S. 926, 71 S.Ct. 797, 95 L.Ed. 1357. The provision in this contract authorizing the Government to withhold the specified amount in case of default in performance was clearly one for liquidated damages as distinguished from penalty. From what has been said it is obvious that no" }, { "docid": "19999321", "title": "", "text": "while we have multiple claim dates regarding the properly filed claims, we find that the subsequent claims are not new, but merely are a recomputation, revision, and expansion of the former, based on the same underlying facts. Servidone, 931 F.2d at 862, provides that interest is awarded on any amounts “found due ... from the date the contracting officer receives the claim.” Where there are multiple proper claims filed, as here, and the later claim(s) are merely a revised or repeat claim, i.e., there has been no change in the underlying factual basis or theory of recovery or computation, then interest shall run from the date the initial claim is received by the CO. Cf. Southwest Marine, ASBCA No. 33208, 88-3 BCA ¶ 20,982 at p. 106,003, 1988 WL 81090. We, therefore, conclude that the interest on the entire amount should commence from March 25, 1985. D. LIQUIDATED DAMAGES Liquidated damages clauses are often used to encourage the timely performance of a contract. Goldberger Foods, 23 Cl.Ct. 295, 312 (1991). They must be reasonable under the circumstances, however, and must not operate as a penalty. Rex Trailer Co. v. United States, 350 U.S. 148, 151, 76 S.Ct. 219, 221, 100 L.Ed. 149 (1956). More importantly, when such damages are determined to be fair and reasonable, the United States Supreme Court has held that they should be enforced. Wise v. United States, 249 U.S. 361, 365, 39 S.Ct. 303, 304, 63 L.Ed. 647 (1919); Priebe & Sons v. United States, 332 U.S. 407, 411-12, 68 S.Ct. 123, 126, 92 L.Ed. 32 (1947). In general, we have held that provisions for liquidated damages are not against public policy, particularly in cases involving government contracts. Cegers v. United States, 7 Cl.Ct. 615, 618 (1985); JMNI v. United States, 4 Cl.Ct. 310, 315 (1984). However, numerous safeguards have been imposed to ensure that the damages claimed are in fact fair and reasonable. Higgs v. United States, 212 Ct.Cl. 146, 156, 546 F.2d 373 (1976); Racine Screw Co. v. United States, 156 Ct.Cl. 256 (1962); Goldberger Foods, 23 Cl.Ct. at 312-13. For example, the “reasonability”" }, { "docid": "19044985", "title": "", "text": "United States, 86 F.3d 1130, 1133 (Fed.Cir.1996). Liquidated damages “serve a particularly useful function when damages are uncertain in nature or amount or are unmeasurable, as is the case in many government contracts.” Priebe & Sons, Inc. v. United States, 332 U.S. 407, 411, 68 S.Ct. 123, 92 L.Ed. 32 (1947). Thus, “[w]here parties have by their contract agreed upon a liquidated damages clause as a reasonable forecast of just compensation for breach of contract and damages are difficult to estimate accurately, such provision should be enforced.” Jennie-O Foods, Inc., 580 F.2d at 413-14; see also FAR 11.501 (noting that use of a liquidated damages clause is proper if damages “would be difficult or impossible to estimate accurately or prove” and that the “rate must be a reasonable forecast” of the anticipated damages). On the other hand, courts will not enforce a liquidated damages clause when the amount of liquidated damages is “plainly without reasonable relation to any probable damage which may follow a breach,” Kothe v. R.C. Taylor Trust, 280 U.S. 224, 226, 50 S.Ct. 142, 74 L.Ed. 382 (1930), or is “so extravagant, or so disproportionate to the amount of property loss, as to show that compensation was not the object aimed at or as to imply fraud, mistake, circumvention, or oppression,” Wise v. United States, 249 U.S. 361, 365, 39 S.Ct. 303, 63 L.Ed. 647 (1919). In these circumstances, liquidated damages amount to a penalty. Priebe & Sons, Inc., 332 U.S. at 413, 68 S.Ct. 123; United States v. Bethlehem, Steel Co., 205 U.S. 105, 118-21, 27 S.Ct. 450, 51 L.Ed. 731 (1907). When presented with a challenge to a liquidated damages clause, a court must judge the clause “as of the time of making the contract” and without regard to the amount of damages, if any, actually incurred by the nonbreaching party. Priebe & Sons, Inc., 332 U.S. at 412, 68 S.Ct. 123; accord Bethlehem Steel Co., 205 U.S. at 119, 27 S.Ct. 450 (noting that courts will enforce liquidated damages clauses “-without proof of the damages actually sustained”); Steve Kirchdorfer, Inc. v. United States, 229" }, { "docid": "23694528", "title": "", "text": "included in the contract fixing the amount of damages payable upon breach is an enforceable liquidated damages clause. First, the amount so fixed must be a reasonable forecast of just compensation for the harm that is caused by the breach. Second, the harm that is caused by the breach must be one that is incapable or nearly incapable of accurate estimation. See J.D. Streett & Co. v. United States, 256 F.2d 557, 559 (8th Cir.1958) (citations omitted); United States v. Le Roy Dyal Co., 186 F.2d 460, 461 (3d Cir.1950) (quoting Restatement, Contracts § 339); Martin J. Simko, 11 Cl.Ct. at 271-72. If the disputed liquidated damages clause does not satisfy both factors, the court will interpret the contract provision as an unenforceable penalty clause. The court must also determine whether these factors exist at the time the contract was executed rather than when the contract was breached or at some other subsequent time. Le Roy Dyal, 186 F.2d at 462; P & D Contractors, Inc. v. United States, 25 Cl.Ct. 237, 241 (1992) (citing Cegers v. United States, 7 Cl.Ct. 615, 620 (1985)). Courts presently look with candor upon provisions that are deliberately entered into between parties, United States v. Bethlehem Steel Co., 205 U.S. 105, 119, 27 S.Ct. 450, 455, 51 L.Ed. 731 (1907), and, therefore, do not look with disfavor upon liquidated damage stipulations. Priebe & Sons, Inc. v. United States, 332 U.S. 407, 411, 68 S.Ct. 123, 125, 92 L.Ed. 32 (1947). In Bethlehem Steel the court defined the applicable standard for determining whether a liquidated damages provision is proper by asking “what did the parties intend by the language used? When such intention is ascertained it is ordinarily the duty of the court to carry it out.” Bethlehem Steel, 205 U.S. at 119, 27 S.Ct. at 455. Here, plaintiff failed to establish that the intention of the parties was to do anything other than to execute a valid liquidated damages provision. In Priebe & Sons, the court found that the contract contained a provision for liquidated damages for delay in delivery upon demand, and that" } ]

[ { "docid": "22091886", "title": "", "text": "FRIENDLY, Circuit Judge: This action, brought by a landlord appearing pro se, is typical of the many cases in which, by virtue of a plaintiff’s invocation of § 1 of the Civil Rights Act of 1871,17 Stat. 13, now 42 U.S.C. § 1983, and its jurisdictional implementation, 28 U.S.C. § 1343(3), federal courts are now being asked to determine a great variety of controversies between city or state officials and citizens who prefer litigating in the federal courts to pursuing their state remedies. The existing and pro spective importance of the problems thus presented has prompted us to examine them at greater length than disposition of this case might demand. Eisen’s one page pro se complaint against Eastman, a New York City District Rent and Rehabilitation Director, asserts that Eastman violated his constitutional right not to be deprived of property without due process of law by reducing the rents to which Eisen was restricted under the City’s Rent and Rehabilitation Law, N.Y. City Adm. Code, Ch. 51, Title Y. The rent reductions in two buildings owned by the plaintiff had resulted in losses of some $1300 at the date of the defendant’s motion to dismiss and of some $1800 at the time of the district court’s decision. The complaint and other papers, when read with appropriate benevolence, challenge the rent control law, the general level of rents fixed for Eisen’s buildings thereunder, and the Director’s recent reductions, as violating plaintiff’s rights under the due process clause of the Fourteenth Amendment. The district judge held that the action could not be sustained under 42 U.S.C. § 1983, and its jurisdictional counterpart, 28 U.S.C. § 1343(3), since the Civil Rights Act does not apply to suits against municipalities. Monroe v. Pape, 365 U.S. 167, 187-192, 81 S.Ct. 473, 5 L.Ed.2d492 (1961). He considered, however, that the showing that losses from the rent reductions would exceed $10,000 within an additional three years might satisfy the requirement of 28 U.S.C. § 1331. Proceeding to the merits, the judge held that the City’s rent control statute was constitutional, citing Israel v. City Rent & Rehabilitation" } ]

[ { "docid": "23374605", "title": "", "text": "the doctrine outlined in Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946). In that decision, the United States Supreme Court noted that: the failure to state a proper cause of action calls for a judgment on the merits and not for a dismissal for want of jurisdiction. Whether the complaint states a cause of action on which relief could be granted is a question of law and just as issues of fact it must be decided after and not before the court has assumed jurisdiction over the controversy. If the court does later exercise its jurisdiction to determine that the allegations in the complaint do not state a ground for relief, then dismissal of the case would be on the merits, not for want of jurisdiction. Id. at 682, 66 S.Ct. at 776 (citations omitted). Contrary to plaintiffs’ assertion, the reasoning of Bell v. Hood is not applicable in the present case. Bell v. Hood was interpreting the broad general Federal question jurisdictional statute, the predecessor to Title 28, United States Code, Section 1331. Although it is true that a Federal court may not make a merits inquiry where jurisdiction is based solely on section 1331, that condition is not universally true when other jurisdictional statutes apply. There can be no argument that other jurisdictional statutes, including 28 U.S.C. §§ 1343, 1350, 1361, require a Federal court to make a merits inquiry before asserting subject matter jurisdiction under those provisions. See Mount Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 278-79, 97 S.Ct. 568, 571-72, 50 L.Ed.2d 471 (1977) (if a court were to base jurisdiction solely on 28 U.S.C. § 1343, it must make merits-related jurisdictional inquiry as to whether defendant was in fact a person within the meaning of 42 U.S.C. § 1983), Apton v. Wilson, 506 F.2d 83, 96 & n. 16 (D.C.Cir.1974) (id.); Filartiga v. Pena-Irala, 630 F.2d 876, 887-88 (2d Cir.1980) (in interpreting the Alien Tort Statute, 28 U.S.C. § 1350, “[c]ourts have ... engaged in a more searching preliminary review of the merits than is" }, { "docid": "19999089", "title": "", "text": "the authority conferred by Congress to decide a given type of case one way or the other. The Fair v. Kohler Die Co., 228 U.S. 22, 25 [33 S.Ct. 410, 57 L.Ed. 716] (1913).” Hagans v. Lavine, 415 U.S. 528, 538, 94 S.Ct. 1372, 1379-1380, 39 L.Ed.2d 577 (1974). The question of whether the court has jurisdiction to decide the merits of a case must not be confused with the question of whether relief can be granted: “[I]t is well settled that the failure to state a proper cause of action calls for a judgment on the merits and not for a dismissal for want of jurisdiction. Whether the complaint states a cause of action on which relief could be granted is a question of law and just as issues of fact it must be decided after and not before the court has assumed jurisdiction over the controversy. If the court does later exercise its jurisdiction to determine that the allegations in the complaint do not state a ground for relief, then dismissal of the case would be on the merits, not for want of jurisdiction. Swafford v. Templeton, 185 U.S. 487, 493, 494, [22 S.Ct. 783, 46 L.Ed. 1005;] Binderup v. Pathe Exchange, 263 U.S. 291, 305-308, [44 S.Ct. 96, 68 L.Ed. 308.]” Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946) (footnote omitted). To resolve this issue, it is necessary only to consider 28 U.S.C. § 1343(3). Plaintiff contends that the CETA regulation conferred upon him an expectation of continued employment which was sufficient to constitute a property interest in his CETA position, and that his termination deprived him of this property right without due process of law. In addition, he argues that he was deprived of a liberty interest in pursuing his chosen occupation. A cause of action arises under 42 U.S.C. § 1983 to redress the deprivation of either liberty or property without due process. Lynch v. Household Finance Corp., 405 U.S. 538, 542- 52, 92 S.Ct. 1113, 31 L.Ed.2d 424 (1972). Section 1343(3) confers jurisdiction to entertain plaintiff’s claim" }, { "docid": "23669301", "title": "", "text": "1983 because, as the Court said in Monroe, the purpose of that Section is to provide a remedy against “state officials” who abuse their power. And the Second Circuit said in Eisen v. Eastmam 421 F.2d 560, 562-563 (2d Cir. 1969): Actions against a governmental official acting ‘under color of’ statutes and ordinances are what 42 U.S. C. § 1983 is mainly about.”J The instant suit is an action alleging deprivations of civil rights — it is one wherein the rights and immunities are those comprising personal liberty, not dependent for their existence upon the infringement of property rights. Eisen v. Eastman, supra, at 564. Therefore, this case falls squarely within the contemplation of Section 1983 and this court thus not only has jurisdiction, 28 U.S.C. § 1343(3), but the power, in a jurisdictional sense, to grant both equitable and legal relief. The instant suit also predicates jurisdiction in this court on 28 U.S.C. § 1331, the general federal question jurisdiction statute. In Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946) the Court held: “And it is established practice for this Court to sustain the jurisdiction of federal courts to issue injunctions to protect rights safeguarded by the Constitution and to restrain individual state officers from doing what the 14th Amendment forbids the state to do. Moreover, where federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief.” Id. at 684, 66 S.Ct. at 777. C. Exhaustion of Administrative Remedies The State has not seen fit to provide a plain, speedy and adequate administrative remedy in a case of this kind. The only administrative remedy which Sostre had was to write a letter to the Commissioner. However, this would have been futile since the evidence shows that soon after Sostre was placed in punitive segregation the Warden, himself, advised the Commissioner of his actions with respect to Sostre. This was in early July 1968. (T. 699). From March 1968 to October 1968, the Warden sent" }, { "docid": "20561267", "title": "", "text": "had jurisdiction. In addition, see Caulder v. Durham Housing Authority, 433 F.2d 998 (4th Cir. 1970), in which the Fourth Circuit, in a post -Weddle opinion written by Judge Winter, assumed jurisdiction under 1343(3) in a 1983 case in which the right to inhabit a federally assisted housing project was involved; and Wheeler v. Adams Company, 322 F.Supp. 645, 655 (D.Md.1971), in which such jurisdiction was similarly assumed in connection with a procedural due process attack upon certain replevin procedures. While it is the understatement of the new year 1972 to say that the matter is not free of doubt, this Court, in the absence of any clear guidance from the Supreme Court or from the Fourth Circuit, adopts the approach followed in Johnson v. Harder, supra, and holds that the alleged deprivation of AFDC-E benefits in this case constitutes an allegation of infringement of personal liberties and that the constitutional equal protection contentions advanced by plaintiffs herein, while rejected, are not frivolous. “[Wjhether the complaint states a cause of action on which relief could be granted * * * must be decided after and not before the court has assumed jurisdiction over the controversy,” Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 776, 90 L.Ed. 939. (1946). Once having assumed jurisdiction because of the constitutional challenge, this Court believes that whether or not jurisdiction would otherwise exist, it should continue to assert its jurisdiction and proceed to resolve the issues herein involving federal statutes and federal regulations. The views stated by Mr. Justice Harlan in Rosado v. Wyman, supra, 397 U.S. at 402-403 and 422-423, 90 S.Ct. 1207, 25 L.Ed.2d 442, and by Mr. Chief Justice Warren in King v. Smith, supra, would appear so to teach. II. Originally, in their complaint, plaintiffs asked this Court to permit this proceeding to take place as a class action under Federal Civil Rule 23(a) and (b) (2). During oral argument, counsel for plaintiffs stated agreement with a position suggested by this Court, namely, that if this Court should determine that it has no power to award damages in this" }, { "docid": "6378875", "title": "", "text": "and because their request for attorney’s fees does not question the validity of Mississippi’s tax assessment scheme, neither section 1341 nor the doctrine of comity raises a bar to their proceeding in federal court. Cf. Fair Assessment in Real Estate Association v. McNary, - U.S. -, 102 S.Ct. 177, 70 L.Ed.2d 271 (1981). The present posture of the case simply does not present this court with a live controversy as to the effect of section 1341. The state court judgment rendered this issue moot. See Murphy v. Hunt, - U.S. -, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982); ITT Rayonier, Inc. v. United States, 651 F.2d 343 (5th Cir. 1981). The plaintiffs finally claim that they have a right to seek attorney’s fees in federal court for their successful prosecution of the state court action. The district court, however, dismissed the plaintiffs’ claim for two reasons. First, it determined that because section 1988 does not create a cause of action for deprivation of constitutional rights, there was no jurisdiction under 42 U.S.C. § 1343(3). Second, it determined that because section 1988 is procedural rather than substantive, it does not provide plaintiffs with an independent cause of action. With respect to the jurisdictional issue, the plaintiffs not only alleged that jurisdiction arose under section 1343(3) but also under 28 U.S.C. § 1331. The district court correctly determined that section 1343(3) only provides jurisdiction over claims that state officials have violated a constitutional right or a federal statute providing for equal rights. See Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 99 S.Ct. 1905, 60 L.Ed.2d 508 (1979). Section 1331, however, provides for jurisdiction of civil actions arising under the laws of the United States. See 28 U.S.C. § 1331. Because plaintiffs have alleged a nonfrivolous claim that they are entitled to attorney’s fees under section. 1988, the district court had jurisdiction to consider their claim. See Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946). The fact that section 1988 may not provide an independent cause of action did not divest the district court of jurisdiction" }, { "docid": "11417691", "title": "", "text": "is duly made and adopted pursuant to applicable law. Jurisdiction is asserted and relief requested both under the Civil Rights Act, 42 U.S.C.A. §§ 1983, 1988 and 28 U.S.C.A. § 1343(3) (4). Plaintiffs seek the convening of a three-judge court, pursuant to 28 U.S.C.A. § 2281 insofar as an injunction is sought restraining the enforcement or execution of a State statute. It is alleged that each of the defendants resides in, and represents the voters of, one of the ten towns in Suffolk County; that the population of these towns varies from 1,367 to 191,280; that each defendant casts one vote without regard to the number of persons he represents; that the voting power is distributed solely on a geographic basis, that is one vote per town. It is further alleged that this arrangement arbitrarily exalts the voting strength of persons residing in the less populated towns, with no justification other than the present invidiously discriminatory geographic classification. In Baker v. Carr, 369 U.S. 186, at page 199, 82 S.Ct. 691, at page 700, 7 L.Ed.2d 663, the Court held in part: “Article III, § 2, of the Federal Constitution provides that ‘The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority * * *.’ It is clear that the cause of action is one which ‘arises under’ the Federal Constitution. The complaint alleges that the 1901 statute effects an apportionment that deprives the appellants of the equal protection of the laws in violation of the Fourteenth Amendment. Dismissal of the complaint upon the ground of lack of jurisdiction of the subject matter would, therefore, be justified only if that claim were ‘so attenuated and unsubstantial as to be absolutely devoid of merit,’ Newburyport Water Co. v. Newburyport, 193 U.S. 561, 579, 24 S.Ct. 553, 557, 48 L.Ed. 795, or ‘frivolous,’ Bell v. Hood, 327 U.S. 678, 683, [66 S.Ct. 773, 776, 90 L.Ed. 939]. That the claim is unsubstantial must be ‘very plain.’ Hart v. Keith" }, { "docid": "2565633", "title": "", "text": "11 (E.D.Pa.1972); Mattingly v. Elias, 325 F.Supp. 1374, 1375 n. 3 (E.D.Pa.1971), rev’d on other grounds, 482 F.2d 526 (3d Cir. 1973). (c) Federal Question. The general federal question statute, 28 U.S.C. § 1331, confers upon district courts original jurisdiction of suits arising under the Constitution, laws, or treaties of the United States. The classic case of Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946), set forth the analysis to be employed by the courts in determining whether allegations were sufficient to establish subject matter jurisdiction under that statute: “[W]here the complaint, as here, is so drawn as to seek recovery directly under the . . . laws of the United States, the federal court must entertain the suit..... The reason for this is that the court must assume jurisdiction to decide whether the allegations state a cause of action on which the court can grant relief .... “Jurisdiction ... is not defeated . . -. by the possibility that the averments might fail to state a cause of action on which [plaintiffs] could actually recover. For it is well settled that the failure to state a proper cause of action calls for a judgment on the merits and not for a dismissal for want of jurisdiction. Whether the complaint states a cause of action on which relief could be granted is a question of law and just as issues of fact it must be decided after and not before the court has assumed jurisdiction over the controversy. If the court does later exercise its jurisdiction to determine that the allegations ... do not state a ground for relief, then dismissal of the case would be on the merits, not for want of jurisdiction.” Id. at 681-682, 66 S.Ct. at 776. Plaintiffs’ allegations that the Administrator has breached a statutory duty owed to them under the Clean Air Act Amendments (i. e., that he has failed to meet the statutory timetable and failed to promulgate regulations which would prevent significant degradation of air quality and prevent violations of air quality standards by indirect sources) clearly" }, { "docid": "18162257", "title": "", "text": "Consequently, it is incumbent upon the party seeking to avail himself of federal court jurisdiction to demonstrate the existence of jurisdiction. See Pettinelli v. Danzig, 644 F.2d 1160, 1162 (5th Cir. 1981). In this case, appellant has asserted a claim under 42 U.S.C. § 1983. Specifically, he claims that MARTA, a state agency acting under color of state law, deprived him of the beneficial use of his property for a public purpose during the construction of the east line and thereafter without providing just compensation. He therefore contends that MARTA deprived him of his constitutional rights while acting under col- or of state law. We hold that this claim meets the threshold jurisdictional requirements of 28 U.S.C. § 1343(3) because it is well established that “where the complaint, as here, is so drawn as to seek recovery directly under the Constitution or laws of the United States, the federal court ... must entertain the suit.” Bell v. Hood, 327 U.S. 678, 681-82, 66 S.Ct. 773, 775-76, 90 L.Ed. 939 (1946). See also Hagans v. Lavine, 415 U.S. 528, 538-39, 94 S.Ct. 1372, 1379-80, 39 L.Ed.2d 577 (1974); Silva v. Vowell, 621 F.2d 640, 645-46 (5th Cir. 1980), cert. denied, 449 U.S. 1125, 101 S.Ct. 941 (1981); Southpark Square Ltd. v. City of Jackson, 565 F.2d 338, 341 (5th Cir. 1977), cert. denied, 436 U.S. 946, 98 S.Ct. 2849, 56 L.Ed.2d 787 (1978). There are two exceptions to the general rule of Bell v. Hood. Even if a complaint alleges injury to federal rights, the courts should not entertain the lawsuit “where the alleged claim under the Constitution or federal statutes clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or where such a claim is wholly insubstantial and frivolous.” Bell v. Hood, 327 U.S. at 682-83, 66 S.Ct. at 776; accord, Wohlfahrt v. Memorial Medical Center, 658 F.2d 416, 417 (5th Cir. 1981). MARTA argues that appellant’s claim under the just compensation clause is immaterial to the underlying dispute. MARTA contends that this suit is really an inverse condemnation action under state law and that" }, { "docid": "23562639", "title": "", "text": "laws of the United States, the district court must assume jurisdiction under 28 U.S.C. § 1331 and make a determination on the merits of the claim. The only exceptions to this principle are where the alleged claim appears to be immaterial and solely for the purpose of obtaining jurisdiction or where the claim is wholly insubstantial and frivolous. Bell v. Hood, 327 U.S. 678, 682-683, 66 S.Ct. 773, 90 L.Ed. 939. (1946). Similarly, where a complaint is so drawn as to seek recovery for any wrong specified in 28 U.S.C. § 1343, the district court must assume jurisdiction with the same possible exceptions. Agnew v. City of Compton, 239 F.2d 226, 229 (9th Cir. 1956), cert. denied, 353 U.S. 959, 77 S.Ct. 868, 1 L.Ed.2d 910 (1957). See, also, Montana-Dakota Utilities Co. v. Northwestern Public Services Co., 341 U.S. 246, 249, 71 S.Ct. 692, 95 L.Ed. 912 (1950). The complaint in the instant case seeks recovery for an alleged conspiracy to deprive plaintiff of his constitutional rights under the Civil Rights Act, 42 U.S.C. § 1985. This is enough to satisfy the jurisdiction requisites for the purposes of both 28 U.S.C. § 1331 and 28 U.S.C. § 1343. The federal claim is not immaterial, but the sole basis of the action. The Requisites of an Action Under 42 U.S.C. § 1985(3) The first count of plaintiff’s complaint is predicated upon 42 U.S.C. § 1985(3). The elements necessary for a cause of action under this section are (1) a conspiracy by the defendants, (2) with a purpose of depriving the plaintiff of equal protection of the laws or equal privileges and immunities under the law, (3) a purposeful intent to discriminate, (4) action by the defendants under color of state law or authority, and (5) injury to the person or property of the plaintiff or his deprivation of a right or privilege as a citizen of the United States resulting from actions in furtherance of the conspiracy. Hoffman v. Halden, 268 F.2d 280, 292 (9th Cir. 1959). Accord, Colon v. Grieco, 226 F.Supp. 414, 418 (N.J.1964); Rhodes v. Houston, 202 F.Supp." }, { "docid": "5352232", "title": "", "text": "First Amendment (as applied to the states by the Fourteenth Amendment) by reason of vagueness and overbreadth. Injunctive relief, however, was denied so that the University could have a reasonable time to readjust its regulations. Defendants raise several preliminary issues which challenge the power of the district court to entertain this action. They assert that the court lacked jurisdiction under the Civil Rights Act (42 U.S.C. § 1891 et seq.) because the record fails to disclose that the plaintiffs were engaged in constitutionally protected activities. We do not agree. Plaintiffs’ conduct is not determinative of jurisdiction. The proper question here is whether defendants were depriving plaintiffs of any constitutional rights regardless of the character of their behavior. In our view, jurisdiction existed because the complaint alleged that defendants’ use of the doctrine of misconduct as a basis for its disciplinary proceedings subjected plaintiffs to “deprivation of * * * rights [and] privileges * * * secured by the Constitution” (42 U.S.C. § 1983). Under the Declaratory Judgment Act (28 U.S.C. § 2201 et seq.), it became appropriate for the district court to determine the legality of the misconduct standard being employed by defendants in the Amended Charges of November 1. This was not an abstract question, for plaintiffs were being charged with “misconduct” and threatened with punishment. Whether plaintiffs were entitled to relief was to be decided after the court assumed jurisdiction over the controversy. Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 90 L.Ed. 939; Sigafus v. Brown, 416 F.2d 105 (7th Cir. 1969); Snyder v. Board of Trustees, University of Illinois, 286 F.Supp. 927, 931 (N.D.Ill.1968; 3-judge court). Likewise, the nature of the conduct attributed to plaintiffs has no effect on their standing to challenge the application of the misconduct doctrine as the basis for the proceedings taken against them. They are entitled to contend that the disciplinary proceedings were invalid deprivations of due process because based upon nonexistent or unconstitutionally vague standards. It is well settled that a statute threatening the exercise of First Amendment freedoms because of overbreadth is subject to attack “ *" }, { "docid": "14493839", "title": "", "text": "questionable, that hurdle does not prevent this court from assuming jurisdiction over the controversy. As the courts have often — and emphatically — reiterated, the question whether a court has subject matter jurisdiction differs analytically from the question whether plaintiff has stated a viable cause of action. E. g., Bell v. Hood, 327 U.S. 678, 682-83, 66 S.Ct. 773, 90 L.Ed. 939 (1946); Mahone v. Waddle, 564 F.2d 1018, 1022 (3d Cir. 1977); Payne v. Government of the District of Columbia, 182 U.S. App.D.C. 188, 193-95, 559 F.2d 809, 814-16 (1977); see Santora v. Civil Service Com mission, City of New York, 443 F.Supp. 25, 28-29 (S.D.N.Y.1977); Cave v. Beame, 433 F.Supp. 172, 174-76 (E.D.N.Y.1977); cf. Pitrone v. Mercadante, 572 F.2d 98, 100 (3d Cir. 1978), cert. denied, - U.S. -, 99 S.Ct. 99, 58 L.Ed.2d 120 (1978). The latter is a question of law, which must be decided after the court assumes jurisdiction and which calls for judgment on the merits. Bell v. Hood, supra, 327 U.S. at 682, 66 S.Ct. 773. The former, however, requires an examination of the allegations in the complaint to determine if construction of the Constitution or federal laws will dictate the plaintiff’s right to recover. If the federal Constitution or laws directly impact upon the plaintiff’s claim and the complaint appears to be neither “immaterial and made solely for the purpose of obtaining jurisdiction” nor “wholly insubstantial and frivolous,” the district court acquires jurisdiction under section 1331(a). Bell v. Hood, supra, 327 U.S. at 682-83, 66 S.Ct. at 776. Plaintiffs’ complaint meets that standard. In addition, although not pleaded specifically as a source of section 1331 jurisdiction, 42 U.S.C. § 1983 (1970) provides yet another peg for federal question jurisdiction. By its terms, section 1983 not only subsumes plaintiffs’ constitutional and statutory claims but also supplies the remedial vehicle for their vindication. See National Land & Investment Co. v. Specter, 428 F.2d 91, 98-100 (3d Cir. 1970). Furthermore, inasmuch as Monell v. New York City Department of Social Services, 436 U.S. 658, 690-695, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), has redefined “personfs]”" }, { "docid": "23298672", "title": "", "text": "of the same law. Hines replied by letter of June 11, and appellant responded on June 26, 1975, explaining and defending her position. Following an executive session of the Board of Education on July 21,1975, the Board voted to accept Hines’ recommendation. Appellant subsequently instituted this action. Appellees preliminarily urge lack of subject matter jurisdiction as to appellees in their official capacities on the strength of Monell v. Department of Social Services, 532 F.2d 259 (2d Cir. 1976), cert. granted, 429 U.S. 1071, 97 S.Ct. 807, 50 L.Ed.2d 789 (1977), which held that a school board and its members in their official capacities (hereinafter referred to jointly as the school board) are not “persons” for purposes of damages actions under 42 U.S.C. § 1983 and hence cannot be sued in federal court under the jurisdictional counterpart of Section 1983, 28 U.S.C. § 1343(3). Appellees are correct that after Monell and Kornit v. Board of Education, 542 F.2d 593 (2d Cir. 1976) (per curiam), it is settled in this circuit that there is no cause of action for damages under Section 1983 against a school board in its official capacity. Since appellant’s Section 1983 damages claim against the school board is therefore wholly insubstantial, we have no jurisdiction over that claim under 28 U.S.C. § 1343(3). See Bell v. Hood, 327 U.S. 678, 682-83, 66 S.Ct. 773, 90 L.Ed. 939 (1946); George C. Frey Ready-Mixed Concrete, Inc. v. Pine Hill Concrete Mix Corp., 554 F.2d 551, 554 n. 3 (2d Cir. 1977). But here, as in Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 275-282, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), a claim was also asserted under the Fourteenth Amendment, with jurisdiction premised on the general federal question statute, 28 U.S.C. § 1331, and with the amount in controversy alleged in the complaint to be in excess of $10,000. Since the question whether a civil rights action may be brought directly under the Fourteenth Amendment when it cannot be brought under 42 U.S.C. § 1983 is an unsettled one, see at 275-277, 97 S.Ct. 568;" }, { "docid": "21883758", "title": "", "text": "13 (E.D.N.Y.1967). This provision was obviously inapplicable, however, for its scope is very expressly limited to deprivations of federal rights under color of state or territorial law. The district court so held, id. at 13-14, but it went on to find, on the basis of the complaint’s reliance on 28 U.S.C. § 1331 (as well as 28 U.S.C. § 1343) and allusion to a violation of “constitutional rights,” that Bivens was also resting his suit for damages directly on the Fourth Amendment with its prohibition against “unreasonable searches and seizures.” The court rejected this latter claim, though, as lacking both a substantive source and jurisdictional basis. Id. at 14-16. As the Court of Appeals indicated, Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 409 F.2d 718, 719-20 (2d Cir. 1969), the district court’s alternative, jurisdictional ground for dismissing the Fourth Amendment-based claim ran afoul of Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946), which established that federal courts have federal question jurisdiction over a cause of action arising out of the Constitution. This court agreed, on the other hand, with the district court’s resolution of the issue not reached in Bell: whether a cause of action based on a provision of the Constitution was one upon which relief could be granted. Id. at 720-26, 66 S.Ct. 773. In reversing, the Supreme Court addressed itself only to the viability of causes of action predicated on the Fourth Amendment. The Bivens Court stated its rationale for upholding the complaint against a motion to dismiss, however, in terms inviting broader application: Of course, the Fourth Amendment does not in so many words provide for its enforcement by an award of money damages for the consequences of its violation. But “it is well settled that where legal rights have been invaded, and a federal statute provides for a general right to sue'for such invasion, federal courts may use any available remedy to make good the wrong done.” Bell v. Hood, 327 U.S., at 684, 66 S.Ct., at 777 .. . The question is merely whether petitioner," }, { "docid": "23298673", "title": "", "text": "action for damages under Section 1983 against a school board in its official capacity. Since appellant’s Section 1983 damages claim against the school board is therefore wholly insubstantial, we have no jurisdiction over that claim under 28 U.S.C. § 1343(3). See Bell v. Hood, 327 U.S. 678, 682-83, 66 S.Ct. 773, 90 L.Ed. 939 (1946); George C. Frey Ready-Mixed Concrete, Inc. v. Pine Hill Concrete Mix Corp., 554 F.2d 551, 554 n. 3 (2d Cir. 1977). But here, as in Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 275-282, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), a claim was also asserted under the Fourteenth Amendment, with jurisdiction premised on the general federal question statute, 28 U.S.C. § 1331, and with the amount in controversy alleged in the complaint to be in excess of $10,000. Since the question whether a civil rights action may be brought directly under the Fourteenth Amendment when it cannot be brought under 42 U.S.C. § 1983 is an unsettled one, see at 275-277, 97 S.Ct. 568; Fine v. City of New York, 529 F.2d 70, 76 (2d Cir. 1975), appellant’s assertion of Section 1331 juris diction over her Fourteenth Amendment claim cannot be considered to be frivolous or made solely for the purpose of obtaining jurisdiction, see Bell v. Hood, supra, 327 U.S. at 682-83, 66 S.Ct. 773. We accordingly have jurisdiction to consider appellant’s Fourteenth Amendment claim. See Matherson v. Long Island State Park Commission, 442 F.2d 566, 568 (2d Cir. 1971). Having found that we have jurisdiction over the school board in its official capacity, we must next resolve the unsettled question whether appellant’s Fourteenth Amendment claim against the school board states a valid cause of action. Unfortunately, Mt. Healthy City School District Board of Education v. Doyle, supra, is of no help on this crucial question. There, after finding jurisdiction, the Supreme Court went directly to the merits of the asserted denial of due process without determining whether the school board could be sued under Section 1983 or directly under the Fourteenth Amendment or both. 429 U.S. at" }, { "docid": "9919177", "title": "", "text": "Cowan argues that the court had jurisdiction whether the cause of action arose before or after January 1,1975. We reject these arguments and affirm the dismissal for want of subject matter jurisdiction. The requirements for establishing federal court jurisdiction have been addressed frequently by the Supreme Court. In Bell v. Hood, 327 U.S. 678, 681-82, 66 S.Ct. 773, 775-76, 90 L.Ed. 939 (1946), the Court held that jurisdiction generally is established by a properly pleaded complaint, “drawn so as to claim a right to recover under the Consti tution and laws of the United States. . [W]here the complaint . . . is so drawn . . . the federal court, but for two possible exceptions . . . , must entertain the suit.” Here Cowan has alleged violations of certain sections of ERISA, 29 U.S.C. §§ 1104, 1105, and has cited the civil enforcement section of ERISA, 29 U.S.C. § 1132, as the basis for federal jurisdiction. Section 1132(a) gives participants and beneficiaries of pension plans the right to sue to redress violations of ERISA and to enforce their rights to pension benefits. Section 1132(d) provides that an employee benefit plan may sue or be sued as an entity, § 1132(f) grants jurisdiction to the federal district courts without regard to the amount in controversy, and § 1132(e) provides that the federal courts have exclusive jurisdiction over all suits except those brought under § 1132(a)(1)(B). On the face of it, therefore, Cowan’s complaint states a federal claim. It is not sufficient, however, that a complaint merely state a federal claim. Under Bell federal jurisdiction may be denied if the federal claim is “immaterial and made solely for the purpose of obtaining jurisdiction” or “is wholly insubstantial and frivolous.” 327 U.S. at 682-83, 66 S.Ct. at 776; cf. Hagans v. Lavine, 415 U.S. 528, 536-37, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974) (jurisdiction under 28 U.S.C. § 1343(3)); Molina-Crespo v. Califano, 583 F.2d 572 at 573-574 (1st Cir. 1978) (jurisdiction based on constitutional claims). We feel that these exceptions preclude federal jurisdiction here. In our view, § 1132 confers jurisdiction" }, { "docid": "23586882", "title": "", "text": "in equity, or other proper proceeding for redress. Its jurisdictional counterpart is similar: (a) The district courts shall have original jurisdiction of any civil action autho rized by law to be commenced by any person: (3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States. 28 U.S.C. § 1343. Because of the similarity, the issue of whether a complaint states a claim upon which relief can be granted under section 1983 and the issue whether the court has jurisdiction under section 1343 are somewhat difficult to separate. The distinction, however, was clarified in Jackson Transit Authority v. Local Division 1285, 457 U.S. 15, 102 S.Ct. 2202, 72 L.Ed.2d 639 (1982). In that case the Court held that a union had not stated a claim for federal relief but that, “strictly speaking, the District Court had jurisdiction under 28 U.S.C. § 1331 to hear the union’s suit.” 457 U.S. at 21 n. 6, 102 S.Ct. at 2206 n. 6. Although a brief concurrence merges the questions of adequate federal claim and federal jurisdiction, 457 U.S. at 29-30, 102 S.Ct. at 2210-2211 (Powell, J., concurring), the majority opinion clearly separates these issues. In order to invoke federal jurisdiction “for the purposes of determining whether [the plaintiff] stated a cause of action on which relief could be granted,” id. at 21 n. 6,102 S.Ct. at 2206 n. 6, the complaint must fulfill only two criteria: (1) it must “claim a right to recover under the Constitution and laws of the United States,” and (2) the claim must not be “wholly insubstantial and frivolous.” Id. (quoting Bell v. Hood, 327 U.S. 678, 681, 682-83, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946)). This circuit applied the distinction set forth in Jackson to an action under section 1983 in Miofsky v. Superior Court, 703 F.2d 332, 335 n. 4 (9th Cir.1983):" }, { "docid": "23475690", "title": "", "text": "against the associate circuit judge, magistrate, state’s attorney and assistant to the state’s attorney will be dismissed for failure of jurisdiction in this Court.” The amended complaint primarily involves federal jurisdiction under 28 U.S.C. § 1343(3) and (4) giving federal jurisdiction for deprivation of federally protected civil rights. In our reading of the complaint, violations of these rights have been alleged. The test for determining whether jurisdiction exists is set out in Bell v. Hood, 327 U.S. 678, 682-683, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946): “Jurisdiction, therefore, is not defeated as respondents seem to contend, by the possibility that the averments might fail to state a cause of action on which petitioners could actually recover. For it is well settled that the failure to state a proper cause of action calls for a judgment on the merits and not for a dismissal for want of jurisdiction. . . . But as we have already pointed out the alleged violations of the Constitution here are not immaterial but form rather the sole basis of the relief sought. Nor can we say that the cause of action alleged is so patently without mérit as to justify, even under the qualifications noted, the court’s dismissal for want of jurisdiction.” The present case clearly fits the above language from Bell v. Hood, and we must, therefore, hold that the district court erred in dismissing the complaint for want of jurisdiction as the alleged constitutional and statutory violations do “form the sole basis for relief” and the action is not “so patently without merit as to justify” the court’s dismissal. JUDICIAL IMMUNITY In dismissing the case, while there was reference to want of jurisdiction, the district court’s opinion stressed that the complaint sought to review matters of judicial discretion. It would seem that the dismissal was, in reality, one for failure to state a claim upon which relief could be granted, Rule 12(b)(6), Fed.R.Civ.P. It is on that alternative theory for the district court’s actions that we will proceed. Defendants contend that as judicial and quasi-judicial officers they were not liable in civil" }, { "docid": "17269548", "title": "", "text": "fourteenth amendment to the federal constitution. At the same time, she secured a preliminary injunction staying the defendants from their threatened action. Shielded by this order, she continued to teach until the day before her child was born. Meantime, the EEOC did issue its letter, and plaintiff duly supplemented her complaint. Ultimately, the district court granted plaintiff summary judgment on the Title VII claim, certified a class, issued a permanent injunction against the defendants, and allowed plaintiff attorney’s fees. The appeal followed. We affirm. Defendants’ initial contention, that the district court lacked subject matter jurisdiction because no “right to sue” letter had issued at the time of the commencement of the action, is without merit. Putting aside for a moment discussion of the district court’s jurisdiction over the Title VII claim upon which permanent injunctive relief was ultimately predicated, we are clear that the district court possessed independent subject matter jurisdiction to reach the question of preliminary injunctive relief under 28 U.S.C. § 1343(3), based on plaintiff’s § 1983 claim that she was deprived of her rights to due process and equal protection of the laws. Section 1343(3) grants the district courts original jurisdiction of civil actions “[t]o redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States . . . Because plaintiff’s § 1983 claim falls within the scope of this language, “Section 1343(3) . . . conferred jurisdiction upon the District Court to entertain the constitutional claim if it was of sufficient substance to support federal jurisdiction.” Hagans v. Lavine, 415 U.S. 528, 536, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974). See Bell v. Hood, 327 U.S. 678, 682-683, 67 S.Ct. 773, 90 L.Ed. 939 (1946); Holder v. Nelson, 514 F.2d 1091, 1092 (9th Cir. 1975). Applying the test of Goosby v. Osser, 409 U.S. 512, 518, 93 S.Ct. 854, 35 L.Ed.2d 36 (1973), as further" }, { "docid": "21883757", "title": "", "text": "district court take cognizance of the plaintiffs’ § 1331-related theory of relief. Fed.R.Civ.P. 8(f); 2A J. W. Moore, Federal Practice H 8.34 (2d ed. 1974). At the outset, then, we reject the appellee’s contention that the appellants are precluded from pursuing this theory on appeal by their alleged failure to raise it first in the court below. In holding that the plaintiffs’ complaint states a cause of action stemming from the Due Process Clause of the Fourteenth Amendment, we are guided by the Supreme Court’s decision in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). The plaintiff Bivens alleged that federal narcotics agents acting under color of federal law illegally entered and searched his apartment and manacled and arrested him for supposed narcotics violations. As in the instant case, only 42 U.S.C. § 1983 was cited in the complaint’s jurisdictional statement as creating the cause of action. See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 276 F.Supp. 12, 13 (E.D.N.Y.1967). This provision was obviously inapplicable, however, for its scope is very expressly limited to deprivations of federal rights under color of state or territorial law. The district court so held, id. at 13-14, but it went on to find, on the basis of the complaint’s reliance on 28 U.S.C. § 1331 (as well as 28 U.S.C. § 1343) and allusion to a violation of “constitutional rights,” that Bivens was also resting his suit for damages directly on the Fourth Amendment with its prohibition against “unreasonable searches and seizures.” The court rejected this latter claim, though, as lacking both a substantive source and jurisdictional basis. Id. at 14-16. As the Court of Appeals indicated, Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 409 F.2d 718, 719-20 (2d Cir. 1969), the district court’s alternative, jurisdictional ground for dismissing the Fourth Amendment-based claim ran afoul of Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946), which established that federal courts have federal question jurisdiction over a cause of action" }, { "docid": "3844925", "title": "", "text": "McCREE, Circuit Judge. Plaintiffs, students at the University of Louisville, commenced an action in the District Court on May 19, 1969, seeking, inter alia, to enjoin defendants, officers and trustees of the University, from excluding them from classes pursuant to an order of the Student Conduct and Appeals Committee permanently dismissing plaintiffs from the University. The complaint filed by plaintiffs invoked the court’s jurisdiction under 28 U.S.C. §§ 1343(3) and 1343(4) and contained allegations that the “University of Louisville is a municipal institution of higher learning supported in large part by public funds”; that the procedures employed by the defendants to effect plaintiffs’ dismissal from the University violated the Due Process Clause of the Constitution of the United States; and that the relief sought was authorized by 42 U.S.C. § 1983. On May 20, 1969, the District Judge, sua sponte and without notifying plaintiffs or affording them an opportunity to be heard, dismissed the suit because he concluded the court lacked jurisdiction over the subject matter and also because he decided the allegations in the complaint were not sufficient to state a cause of action under the Civil Rights Act. Plaintiffs appeal from the order of dismissal. Initially, we observe that the District Judge’s determinations that the court lacked jurisdiction and that the complaint failed to state a cause of action are incompatible. The reason for this is that the court must assume jurisdiction to decide whether the allegations state a cause of action on which the court can grant relief * * *. For it is well settled that the failure to state a proper cause of action calls for a judgment on the merits and not for a dismissal for want of jurisdiction. Whether the complaint states a cause of action on which relief could be granted is a question of law and * * * it must be decided after and not before the court has assumed jurisdiction over the controversy. Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946) (emphasis added). The District Judge decided the court lacked jurisdiction over" } ]

[ { "docid": "22179987", "title": "", "text": "of its enactment, one might well conclude that its sole purpose was to eliminate any jurisdictional minimum for “arising under” claims brought by Indian tribes. Tribes already had access to federal courts for “arising under” claims under § 1331, where the amount in controversy was greater than $10,000; for all that appears from its text, § 1362 merely extends that jurisdiction to claims below that minimum. Such a reading, moreover, finds support in the very title of the Act that adopted § 1362: “To amend the Judicial Code to permit Indian tribes to maintain civil actions in Federal district courts without regard to the $10,000 limitation, and for other purposes.” 80 Stat. 880. Moe, however, found something more in the title’s “other purposes” — an implication that “a tribe’s access to federal court to litigate [federal-question cases] would be at least in some respects as broad as that of the United States suing as the tribe’s trustee,” 425 U. S., at 473 (emphasis added). The “respect” at issue in Moe was access to federal court for the purpose of obtaining injunctive relief from state taxation. The Tax Injunction Act, 28 U. S. C. § 1341, denied such access to persons other than the United States; we held that § 1362 revoked that denial as to Indian tribes. Moe did not purport to be saying that § 1362 equated tribal access with the United States’ access generally, but only “at least in some respects,” 425 U. S., at 473, or “in certain respects,” id., at 474. Respondents now urge us, in effect, to eliminate this limitation utterly — for it is impossible to imagine any more extreme replication of the United States’ ability to sue than replication even to the point of allowing unconsented suit against state sovereigns. This is a vast expansion upon Moe. Section 1341, which Moe held § 1362 to eliminate in its application to tribal suits, was merely a limitation that Congress itself had created — commiting state tax-injunction suits to state courts as a matter of comity. Absent that statute, state taxes could constitutionally be enjoined." } ]

[ { "docid": "6844028", "title": "", "text": "of action under section 1331, as well as under section 1362. See Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 94 S.Ct. 772, 39 L.Ed.2d 73 (1974) (“Oneida II”). In doing so the Court specifically declined to decide whether Congress intended to broaden the “arising under” language in enacting section 1362, in addition to eliminating the jurisdictional amount requirement. Id. at 682 n.16, 94 S.Ct. at 784. The Court stated that tribal rights to Indian lands are an exclusive province of federal law and the right to possession was based on assertion of such federal law. Id. at 666-67, 94 S.Ct. at 776-777. The Court held that federal law protects the Indians’ possessory right to tribal lands wholly apart from state law principles which separately protect the right of possession, and thus the complaint arose under federal law within the meaning of both sections. Id. at 677, 94 S.Ct. at 782. The second case in which the interpretation of section 1362 was addressed by the Court was Moe v. Confederated Salish and Kootenai Tribes, 425 U.S. 463, 96 S.Ct. 1634, 48 L.Ed.2d 96 (1976). In Moe the Court was faced with the question whether Indians claiming immunity from state taxes could seek an injunction against the state in light of 28 U.S.C. § 1341, which prohibits the district courts from enjoining state tax collection where there is a speedy remedy available in the state courts, unless the plaintiff is the United States. The Court first considered the interpretation of section 1362: Looking to the legislative history of § 1362 for whatever light it may shed on the question, we find an indication of a congressional purpose to open the federal courts to the kind of claims that could have been brought by the United States as trustee, but for whatever reason were not so brought. Section 1362 is characterized by the reporting House Judiciary Committee as providing “the means whereby the tribes are assured of the same judicial determination whether the action is brought in their behalf by the Government or by their own attorneys.” While this is" }, { "docid": "19724353", "title": "", "text": "Oklahoma Tax Comm’n v. United States, 319 U.S. 598, 63 S.Ct. 1284, 87 L.Ed. 1612 (1943) (unsuccessful effort to tax three members of the Five Civilized Tribes); Childers v. Beaver, 270 U.S. 555, 46 S.Ct. 387, 70 L.Ed. 730 (1926) (unsuccessful attempt to tax full-blooded Quapaw tribal member). . The court wonders, if enrollment was not the deciding factor, what criteria could be utilized by the State in applying the exemption. Should it be membership in any tribe, or a minimum quantity of Indian blood, or the mere assertion that one is an Indian, or the claim that one is an Indian and is recognized in his community as such? Or should the exemption apply to anyone who has adopted the Indian way of life? As a practical matter, application of such criteria could create an administrative nightmare, and the likelihood that unfairness would result is substantial. . That section provides: The district courts shall have original jurisdiction of all civil actions, brought by any Indian tribe or band with a governing body duly recognized by the Secretary of the Interior, wherein the matter in controversy arises under the Constitution, laws, or treaties of the United States. . It makes little difference that the individual plaintiffs claims regarding the propriety of these taxes are not viable, since no one disputes that the Tribes can challenge the validity of the taxes as they are being applied. See, Moe v. Confederated Salish and Kootenai Tribes, supra, 425 U.S. 463, 96 S.Ct. 1634, 48 L.Ed.2d 96 (1976); 28 U.S.C. § 1362. As noted, the more important issue is whether this court has jurisdiction to hear the claims of the individuals for refunds. . Arlington Co. involved an action by the United States and a naval officer challenging Virginia’s ability to tax the personal property of that officer. Besides the fact that Indian taxation cases turn on questions and values unique to this difficult area of law, the Fourth Circuit’s disposition of Arlington Co. is not particularly persuasive in light of Ninth Circuit cases on this issue, discussed infra. . Plaintiffs would discount the" }, { "docid": "3620043", "title": "", "text": "or the 1994 Act. B. Nisqually’s Argument Nisqually does not specifically argue that the 1987 Act or the 1994 Act imply a private right of action. Rather, Nisqually argues that, under Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463, 96 S.Ct. 1634, 48 L.Ed.2d 96 (1976), it has a private right of action stemming from 28 U.S.C. § 1362. We disagree. Title 28 U.S.C. § 1362 confers jurisdiction to federal courts over actions “brought by any Indian tribe ... wherein the matter in controversy arises under the Constitution, laws, or treaties of the United States.” Moe explained that, pursuant to 28 U.S.C. § 1362, Indian tribes can bring “the kind of claims that could have been brought by the United States as trustee” in federal court. 425 U.S. at 472, 96 S.Ct. 1634. Nisqually does not argue, however, that the United States could bring a claim under the 1987 Act or the 1994 Act as trustee for Nisqually in federal court. Instead, Nisqually appears to argue that Moe essentially creates a private right of action any time a claim is brought by an Indian tribe. But Moe has to do with jurisdiction, not with implied causes of action. There is no authority to support Nisqually’s position. Title 28 U.S.C. § 1362 is a jurisdictional statute and Moe merely recognizes a tribe’s right to bring a claim in federal court which could otherwise be brought by the United States acting as trustee. Since Nisqually has not demonstrated that the United States could have brought an action as trustee in this matter, see Moe, 425 U.S. at 472, 96 S.Ct. 1634, we cannot entertain a private right of action under the 1987 Act or the 1994 Act. II. Nisqually has no right of action to challenge the Addendum under state law. The district court exercised supplemental jurisdiction under 28 U.S.C. § 1367 to reach Nisqually’s state law claims. We review this issue because it was appealed to us on the final order of the district court. See 28 U.S.C. § 1291. We conclude that Nisqually has no right of action" }, { "docid": "11120584", "title": "", "text": "of Indians v. Rowe, 531 F.2d 408 (9th Cir. 1976), the authority to withhold permission to enter for fishing, hunting, or trapping has been expressly conferred on the tribe by the promulgation of 18 U.S.C. § 1165, an enactment clearly within the national power. The language and the history of 18 U.S.C. § 1165 show that the right of Indians to control hunting, trapping and fishing on their lands is a prerogative of ownership which the United States recognizes as a matter of federal law. It was the intent of Congress that “Indian property owners should have the same protection as any other property owners” such as, for example, “a private hunting club [which] may keep nonmembers off its game lands or . may issue a license for a fee.” Under the Act, a tribe may refuse entry for fishing on its lands just as an individual Indian owner might do, and the sanctions apply in either case. The Crow Tribal Ordinance dated October 13, 1973, by which nonmembers of the tribe were prohibited from fishing within the confines of the reservation, was ample notification by the beneficial owners of the bed of the river within the reservation that consent to entry for such purposes was withheld. Appellee finally contends that the ordinance which bans all nontribal members from fishing on the Crow Reservation denies him equal protection of the laws guaranteed to nontribal members by 25 U.S.C. § 1302(8), and is therefore void. The Supreme Court rejected similar arguments in Morton v. Mancari, 417 U.S. 535, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974). See also Moe v. The Confederated Salish and Kootenai Tribes of the Flathead Reservation, 425 U.S. 463, 480, 96 S.Ct. 1634, 48 L.Ed.2d 96 (1976). Its explanation for sustaining the statute specially applicable to the Indians in that case is equally applicable to the tribal ordinance at issue here. We conclude that the bed of the Big Horn River within the confines of the Crow Indian Reservation is held by the United States in trust for the Indian tribe and that appellee violated 18 U.S.C. §" }, { "docid": "5418313", "title": "", "text": "implicate § 1341. The Indians do not dispute the state of the law in this circuit as to injunctive and declaratory relief. Rather, they argue that to the extent our decision in Kelly held refund suits barred by § 1341, that holding must be reconsidered in light of Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463, 96 S.Ct. 1634, 48 L.Ed.2d 96 (1976). They point to a single sentence in note 14 of the Supreme Court’s opinion, which concluded with these words: “Any further proceedings with respect to refund claims by or on behalf of individual Indians . . ., would not appear to implicate § 1341.” Id. at 475, n. 14, 96 S.Ct. at 1642. Upon careful examination, we are confident that the Court did not intend by this language to overrule the view of this and other circuits that § 1341 withdraws federal jurisdiction over suits for state tax refunds when adequate state remedies exist. The Moe comment must be viewed in context. The Supreme Court had before it consolidated appeals from a Montana three-judge district court involving that state’s power to impose cigarette sales and various personal property taxes on reservation Indians. Joined as plaintiffs in each appeal were an Indian tribe and class representatives of individual tribal members. Only in the personal property tax case did the complaint include a prayer for refund of taxes paid. The district court found jurisdiction over both tribe and individual plaintiffs. Its only mention of § 1341 with respect to the individual plaintiffs was a sentence in each district court opinion to the effect that jurisdiction was not defeated by that section. See Confederated Salish & Kootenai Tribes v. Moe, 392 F.Supp. 1297, 1305 (D.Mont.1974) (per curiam), aff’d, 425 U.S. 463, 96 S.Ct. 1634, 48 L.Ed.2d 96 (1976); Confederated Salish & Kootenai Tribes v. State of Montana, 392 F.Supp. 1325, 1327 (D.Mont.1975) (per curiam), aff’d, 425 U.S. 463, 96 S.Ct. 1634, 48 L.Ed.2d 96 (1976) (the personal property tax case). On appeal, the Supreme Court held that the tribe was not barred by § 1341 and therefore the" }, { "docid": "19378426", "title": "", "text": "protecting its exclusive jurisdiction, are “federal instrumentalities” which are judicially excepted from 28 U.S.C. § 1341. In Department of Employment v. United States, 385 U.S. 355, 87 S.Ct. 464, 467, 17 L.Ed.2d 414 (1966), the Supreme Court held section 1341 to be inapplicable to suits brought by the United States “to protect itself and its instrumen-talities from unconstitutional state exac-tions.” Whatever federal-instrumentality exception may exist, plaintiffs themselves concede they do not meet one criterion of the exception: federal legislation providing jurisdiction over the claim. Nonetheless, they urge this Court to apply this doctrine based upon the existence of the other two criteria — the United States could have brought this suit and the United States has a real and significant interest in the parties asserting the action. Plaintiffs rely largely upon Moe v. Confederated Salish and Kootenai Tribes, 425 U.S. 463, 96 S.Ct. 1634, 48 L.Ed.2d 96 (1976), as authority for placing themselves within the federal-instrumentality doctrine. We do not agree. This Court has previously summarized the holding in Moe: “Moe held that an action by an Indian tribe suing as a Tribe to resist state taxes was not barred from the federal forum under section 1341, because of a special jurisdictional statute for Indian Tribes, 28 U.S.C. § 1362.” United Gas, 595 F.2d at 328 n. 7. The Moe holding was clearly based on the existence of section 1362. As plaintiffs admit, no special jurisdictional statute exists for oil production companies which are mineral lessees. This Court will not carve out an exception for plaintiffs to the jurisdictional bar of section 1341 based on the Supreme Court’s decision in Moe. This Court concludes that section 1341 bars plaintiffs from proceeding in the federal forum. Our holding today does not deny plaintiffs ultimate federal review in the United States Supreme Court to pre serve any substantial federal rights they may have. AFFIRMED. . Act No. 12, Louisiana Legislature, 1892 (current version at LSA-R.S. 52:1 (West Supp. 1984)). . The State began collecting the taxes after passage of Act No. 510, Louisiana Legislature, 1982, which amended LSA-R.S. 52:1 (1950) (originally enacted" }, { "docid": "20195315", "title": "", "text": "The Court opined that “ § 1362 does not reflect an unmistakably clear intent to abrogate immunity, made plain in the language of the statute.” Blatchford, 501 U.S. at 786, 111 S.Ct. 2578 (internal quotations omitted). And “the fact that Congress grants jurisdiction to hear a claim does not suffice to show Congress has abrogated all defenses to that claim.” Id. at 786 n. 4, 111 S.Ct. 2578 (emphasis omitted). The Court further rejected the proposition that “ § 1362 represents not an abrogation of the State’s sovereign immunity, but rather a delegation to tribes of the Federal Government’s exemption from state sovereign immunity.” Id. at 785, 111 S.Ct. 2578 (emphasis omitted). The Court reasoned: “Assuming that delegation of exemption from state sovereign immunity is theoretically possible, there is no reason to believe that Congress [in enacting § 1362] ever contemplated such a strange notion.” Id. at 785-86, 111 S.Ct. 2578. MCN all but ignores Blatchford (only mentioning it in passing in its reply brief), and instead relies on our decision in Sac & Fox Nation v. Pierce, 213 F.3d 566 (10th Cir.2000), to support its argument that the Eleventh Amendment does not proscribe this action against OTC and its Commissioners. MCN, however, reads Pierce far too broadly and fails to account for the substantial narrowing effect Blatchford has upon our holding in that case. In Pierce, we relied on the Supreme Court’s decision in Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463, 96 S.Ct. 1634, 48 L.Ed.2d 96 (1976), “a case involving an Indian tribe’s access to federal court ‘for the purpose of obtaining in-junctive relief from state taxation,’” to hold the Eleventh Amendment did not bar an Indian tribe’s suit against a state official to enjoin the State of Kansas from collecting taxes on motor fuel distributed to the tribes’ retail stations within Indian country. Pierce, 213 F.3d at 571 (quoting Blatchford, 501 U.S. at 784, 111 S.Ct. 2578); see also Winnebago Tribe v. Stovall, 341 F.3d 1202, 1207 (10th Cir.2003) (relying on Pierce to hold the Eleventh Amendment did not bar a tribe’s suit against" }, { "docid": "13636677", "title": "", "text": "immunity. Cf. United States v. Longo, 464 F.2d 913, 916 (8th Cir.1972) (Rule 13(a) is not a congressional waiver of the United States’ immunity from compulsory counterclaims). We have previously rejected the contention that congressional enactments unrelated to immunity may implicitly grant authority to bring suit against Indian tribes. See Rehner, 678 F.2d at 1351 (statute governing Indian liquor licenses); Quechan Tribe, 595 F.2d at 1155 (Declaratory Judgment Act). Congress, no less than a tribe itself, cannot imply a waiver of sovereign immunity but must “unequivocally” express it. Santa Clara Pueblo, 436 U.S. at 58, 98 S.Ct. at 1677; Employees of the Department of Public Health & Welfare v. Department of Public Health & Welfare, 411 U.S. 279, 285, 93 S.Ct. 1614, 1618, 36 L.Ed.2d 251 (1973). Furthermore, Rule 13(a) is explicitly intended to require joinder of only those claims that might otherwise be brought separately. The authorizing statute for the Federal Rules of Civil Procedure specifies that the rules “shall not abridge, enlarge or modify any substantive right.” 28 U.S.C. § 2072 (1982). We cannot find that a rule promulgated pursuant to this statute was intended impermissibly to abridge the Indian tribes’ substantive right to immunity from suit. Nor can we read Rule 13(a) in isolation and extend federal jurisdiction despite the repeated specification that the rules are not intended to have such an effect. See Fed.R.Civ.P. 82; advisory committee note 5 to Fed.R.Civ.P. 13. Accordingly, we affirm the district court’s dismissal of the Board’s counterclaim against the Tribe. III. APPLICABILITY AND LEGALITY OF THE CALIFORNIA CIGARETTE TAX There is no dispute between the parties that, in the absence of express con gressional authorization, direct state taxation of tribal property or the income of reservation Indians is preempted by the applicable federal law that creates the reservation. See Bryan v. Itasca County, 426 U.S. 373, 376-77, 96 S.Ct. 2102, 2105-06, 48 L.Ed.2d 710 (1976); Moe v. Confederated Salish and Kootenai Tribes of the Flathead Reservation, 425 U.S. 463, 480-82, 96 S.Ct. 1634, 1644-46, 48 L.Ed.2d 96 (1976); McClanahan v. State Tax Commission, 411 U.S. 164, 179-81, 93 S.Ct. 1257," }, { "docid": "5418314", "title": "", "text": "from a Montana three-judge district court involving that state’s power to impose cigarette sales and various personal property taxes on reservation Indians. Joined as plaintiffs in each appeal were an Indian tribe and class representatives of individual tribal members. Only in the personal property tax case did the complaint include a prayer for refund of taxes paid. The district court found jurisdiction over both tribe and individual plaintiffs. Its only mention of § 1341 with respect to the individual plaintiffs was a sentence in each district court opinion to the effect that jurisdiction was not defeated by that section. See Confederated Salish & Kootenai Tribes v. Moe, 392 F.Supp. 1297, 1305 (D.Mont.1974) (per curiam), aff’d, 425 U.S. 463, 96 S.Ct. 1634, 48 L.Ed.2d 96 (1976); Confederated Salish & Kootenai Tribes v. State of Montana, 392 F.Supp. 1325, 1327 (D.Mont.1975) (per curiam), aff’d, 425 U.S. 463, 96 S.Ct. 1634, 48 L.Ed.2d 96 (1976) (the personal property tax case). On appeal, the Supreme Court held that the tribe was not barred by § 1341 and therefore the district court had had jurisdiction. 425 U.S. at 474-75, 96 S.Ct. at 1641-1642. The Court then concluded “all of the substantive issues raised on appeal can be reached by deciding the claims of the Tribe alone ... . ” Id. at 475 n.14, 96 S.Ct. at 1642. Accordingly, the Court did not review the district court's finding of jurisdiction over the individuals as it was unnecessary to do so to resolve the substantive merits. Id. It is particularly noteworthy that the individual refund claims had not been adjudicated in the district court when the Supreme Court acted in Moe. None of the issues which might arise from those actions was before the Court. Indeed, the opinion reminded the district court that the remaining refund actions “must be properly grounded jurisdictionally.” 425 U.S. at 469 n.7, 96 S.Ct. at 1639 n.7. The Supreme Court was not called upon to consider, and did not consider, the interaction of § 1341 and state tax refund suits initiated in federal court. The justification for jurisdiction over the tribe did" }, { "docid": "3899113", "title": "", "text": "cigarettes sold to tribal members on Indian reservations, they may tax on-reservation sales to non-Indians. See Washington v. Confederated Tribes of the Colville Reservation, 447 U.S. 134, 160-61, 100 S.Ct. 2069, 65 L.Ed.2d 10 (1980) (“Col-ville ”); Moe v. Confederated Salish and Kootenai Tribes of the Flathead Reservation, 425 U.S. 463, 480-81, 96 S.Ct. 1634, 48 L.Ed.2d 96 (1976). By requiring notice from tribal members before they transport unstamped cigarettes within the State, Washington is able to track cigarette imports for the purpose of enforcing the lawful tax on sales to non-Indians. .We presume the allegations of an indictment to be true for purposes of reviewing a district court’s ruling on a motion to dismiss. See United States v. Blinder, 10 F.3d 1468, 1471 (9th Cir.1993). . The other two exceptions, which do not apply here, arise if the statute is silent regarding applicability to Indian tribes and either: (1) the law touches \"exclusive rights of self-governance in purely intramural matters” or (2) there is proof \"by legislative history or some other means that Congress intended [the law] not to apply to Indians.” Baker, 63 F.3d at 1485 (alteration in original). . In Cree II, we affirmed the district court's judgment in Yakama Indian Nation v. Flores, 955 F.Supp. 1229 (E.D.Wash.1997), following our remand in Cree v. Waterbury, 78 F.3d 1400 (9th Cir.1996) (“Cree I\"). . As the Yakama Nation argues in its Amicus Brief, the Government \"may not wishfully insist that the Yakamas should have understood in 1855 that federal agents would arrest and imprison tribal members who travel with untaxed tobacco without first notifying the territorial government.\" . Indeed, were we to agree with the Government, Yakama tribal members who transport cigarettes without providing notice to the State would face felony charges under the COTA and up to five years in prison and $250,000 in fines. See 18 U.S.C. §§ 2344(a), 3571(3). As a practical matter, we fail to see how this criminal penalty would impede less on the Yakamas’ right to travel than the minimal fines at issue in Cree II. .As the Yakama Nation notes in" }, { "docid": "9623515", "title": "", "text": "inevitable conclusion that tribes retain absolute sovereignty within those lands reserved for the exclusive use and occupancy of tribes. Id. at 174-75, 93 S.Ct. at 1263-64. Thus, absent Congressional action conferring state jurisdiction over Indian land, Indian tribes retain “exclusive” jurisdiction over tribal members in Indian country. Upon finding no legislative action that conferred state- jurisdiction to permit taxation, the Court held that Arizona could not impose income taxes upon reservation Indians whose income is derived entirely from within the reservation. Id. at 179-80, 93 S.Ct. at 1266. The Court flatly rejected the state’s attempt to distinguish income taxes from property tax: “However relevant the land-income distinction may be in other contexts, it is plainly irrelevant when, as here, the tax is resisted because the State is totally lacking in jurisdiction over both the people and the land it seeks to tax.” Id. at 180-81, 93 S.Ct. at 1267. Several Supreme Court cases have applied McClanahan in varying contexts, including those involving motor vehicles. In Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463, 96 S.Ct. 1634, 48 L.Ed.2d 96 (1976), tribal members challenged Montana’s assessment and collection of personal property taxes, specifically the personal property tax on motor vehicles owned by tribal members residing on the reservation. 425 U.S. at 467-69, 96 S.Ct. at 1638-39. The motor vehicle personal property taxes were based on the value of the vehicle and imposed on vehicles driven both on and off the reservation. Relying upon the reasoning in McClanahan, the Court held that Montana’s personal property tax could not be levied against motor vehicles owned by tribal members who resided on the reservation. Id. at 480-81, 96 S.Ct. at 1644-45. In Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134, 100 S.Ct. 2069, 65 L.Ed.2d 10 (1980), Washington state imposed an “excise tax” on motor vehicles which, like the tax in Moe, was based on the value of the vehicle and applied to Indian-owned vehicles used both on and off-reservation. 447 U.S. at 162, 100 S.Ct. at 2086. Washington argued that the excise tax was imposed for the" }, { "docid": "12759377", "title": "", "text": "1362: “To amend the Judicial Code to permit Indian tribes to maintain civil actions in Federal district courts without regard to the $10,000 limitation, and for other purposes.” 80 Stat. 880. 501 U.S. at 784, 111 S.Ct. 2578. But Blatchford also recognized that a previous decision, Moe v. Confederated Salish and Kootenai Tribes, 425 U.S. 463, 96 S.Ct. 1684, 48 L.Ed.2d 96 (1976), had found an undefined “something more” in section 1362. 501 U.S. at 784, 111 S.Ct. 2578. According to Blatchford, Moe means that “ ‘at least in some respects’ ” — not “generally” — Indian tribes have broader access to federal courts, the way the United States would have if it were suing as trustee for the tribes. Id. (quoting 425 U.S. at 473, 96 S.Ct. 1634). The question, then, is what that “something more” means in this context. The class of cases in which the United States might bring suit as trustee for Indian tribes seems to be narrow. Some treatise writers and courts perceive it as limited to suits to protect federally derived real property rights, see, e.g., 13B Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3579, at 263-64, or perhaps related rights against taxation. Another treatise reads the trustee power more broadly, as extending to monetary relief and personalty, in addition to land. See Rennard Strickland, ed., Felix S. Cohen’s Handbook of Federal Indian Law at 310 (1982 ed.). Although the Tribes in this case speak generally about the trust power, they make no argument that it makes their case fit the Moe/Blatchford exception. Certainly, the controversy in this case does not involve land, personalty or monetary recovery. In fact, most lower court references to section 1362 after Blatchford have proceeded to treat it as virtually identical to section 1331. The Tenth Circuit has said: Although § 1362 clearly removed some jurisdictional impediments for Indian tribes, it did not eliminate the requirement that there be a statutory or constitutional underpinning for the cause of action. See Gila River [Indian Community v. Henningson, Durham & Richardson], 626 F.2d" }, { "docid": "13636678", "title": "", "text": "cannot find that a rule promulgated pursuant to this statute was intended impermissibly to abridge the Indian tribes’ substantive right to immunity from suit. Nor can we read Rule 13(a) in isolation and extend federal jurisdiction despite the repeated specification that the rules are not intended to have such an effect. See Fed.R.Civ.P. 82; advisory committee note 5 to Fed.R.Civ.P. 13. Accordingly, we affirm the district court’s dismissal of the Board’s counterclaim against the Tribe. III. APPLICABILITY AND LEGALITY OF THE CALIFORNIA CIGARETTE TAX There is no dispute between the parties that, in the absence of express con gressional authorization, direct state taxation of tribal property or the income of reservation Indians is preempted by the applicable federal law that creates the reservation. See Bryan v. Itasca County, 426 U.S. 373, 376-77, 96 S.Ct. 2102, 2105-06, 48 L.Ed.2d 710 (1976); Moe v. Confederated Salish and Kootenai Tribes of the Flathead Reservation, 425 U.S. 463, 480-82, 96 S.Ct. 1634, 1644-46, 48 L.Ed.2d 96 (1976); McClanahan v. State Tax Commission, 411 U.S. 164, 179-81, 93 S.Ct. 1257, 1266-67, 36 L.Ed.2d 129 (1973). However, when a state requires that a tax be passed on to the purchaser and collected by the seller, the legal incidence of the tax falls upon the purchaser. United States v. Tax Commission, 421 U.S. 599, 608, 95 S.Ct. 1872, 1878, 44 L.Ed.2d 404 (1975). If the incidence of a tax falls upon non-Indian purchasers, the tax may, in some cases, be permissible. See, e.g., Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134, 151, 100 S.Ct. 2069, 2080, 65 L.Ed.2d 10 (1980); Moe, 425 U.S. at 483, 96 S.Ct. at 1646. The district court determined that the Chemehuevi Tribe is a “person,” as defined by section 30010 of the Revenue & Taxation Code, Cal.Rev. & Tax.Code § 30010 (West 1979), and may thus be a “distributor,” as defined by section 30011 of the same code. Distributors may be subject to the tax authorized by section 30101 of the Code or the collecting requirements specified in section 30108 of the Code. The court then determined that" }, { "docid": "298921", "title": "", "text": "court’s issuance of the injunction was proper under the Anti-Injunction Act. We find no error in the district court’s conclusion that the Nation was entitled to sovereign immunity in the state action. The judgment of the district court is therefore AFFIRMED. .To repeat, the Nation brought suit under 28 U.S.C. § 1362, which provides that \"[t]he district courts shall have original jurisdiction of all civil actions, brought by any Indian tribe ..., wherein the matter in controversy arises under the Constitution, laws, or treaties of the United States.” It is possible that section 1362 authorizes federal courts to enter injunctions against state proceedings. Cf. Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463, 472, 96 S.Ct. 1634, 1641, 48 L.Ed.2d 96 (1976) (stating that 28 U.S.C. § 1341 did not bar an injunction against the collection of a state tax because the Court found \"an indication of a congressional purpose [in section 1362] to open the federal courts to the kind of claims that could have been brought by the United States as trustee\"). Because we determine that defendants did not raise the Anti-Injunction Act previously, however, we need not decide that issue here. . Rademacher also indicates that review of issues raised for the first time on appeal may be possible in \"instances where public interest is implicated or where manifest injustice would result.” Rademacher, 11 F.3d at 1572 (citations omitted). . Defendants ask us to abandon the principle of sovereign immunity for Indian tribes despite Martinez and a plethora of Tenth Circuit opinions. See, e.g., Ramey Constr. Co. v. Apache Tribe, 673 F.2d 315, 319 (10th Cir.1982). We decline defendants' invitation to ignore well-established Supreme Corut and Tenth Circuit precedent. . In its order granting summary judgment, the district court stated that the Nation took part in \"certain off-reservation commercial activities.” It appears that the Nation disputed that fact at summary judgment, however. Because this fact is immaterial to our resolution of this case, we assume arguendo that the district court's finding was correct. . A number of state courts have also confronted this question. See, e.g.," }, { "docid": "8052852", "title": "", "text": "U.S.C. § 1341. Courts have recognized a limited exception to this provision for \"Indian Tribes.\" See Moe v. Confederated Salish and Kootenai Tribes, 425 U.S. 463, 472-75, 96 S.Ct. 1634, 1640-42, 48 L.Ed.2d 96 (1976); see also Section D, supra. Since the Anti-Injunction Act applies only to actions brought in federal court, had the Tribe chosen to raise its section 1983 claims in its parallel state-court action, section 1341 would not have served as a bar to its section 1983 claims. . A tribe’s ability to bring an action in federal court challenging the imposition of state taxes depends on the capacity in which the tribe initiates the litigation and the basis of the tribe’s standing to bring such a challenge. The Supreme Court indicated in Moe v. Confederated Salish and Kootenai Tribes, 425 U.S. 463, 96 S.Ct. 1634, 48 L.Ed.2d 96 (1976), that in actions involving challenges to the imposition of state taxes, the source of parties’ standing to bring the actions must coincide with the basis on which subject-matter jurisdiction is asserted. See id. at 468 n. 7, 96 S.Ct. at 1639 n. 7. In the present action, the Tribe’s standing is based upon its proprietary, corporate activities; as a result, in order to maintain its action, the Tribe must be entitled to bring a section 1983 action and must qualify for the \"Indian tribes” exception to section 1341 while acting in its corporate capacity. The Tribe could also have challenged Arizona’s taxes in its sovereign, governmental capacity, if the imposition of those taxes adversely affected its exercise of its powers of self-government, or if the taxes were imposed on the Tribe’s governmental operations. See id; see also Assiniboine & Sioux Tribes v. Montana, 568 F.Supp. 269, 276 (D.Mont.1983) (tribal vehicles had to be taxed for Tribe to have standing to seek refund under Moe). Such an action would clearly not be barred by section 1341. See, e.g., Moe, 425 U.S. at 474-75, 96 S.Ct. at 1641-42. However, it is doubtful whether the Tribe qua sovereign would qualify as a “citizen of the United States or other person\"" }, { "docid": "3620042", "title": "", "text": "161-63, 100 S.Ct. 2069, 65 L.Ed.2d 10 (1980); Wash. Rev.Code § 43.06.450 (granting the governor power to enter into contracts with Indian tribes in Washington to govern tobacco tax collection). Confederated Tribes reaffirmed that states have the authority to impose taxes on tobacco sales to non-Indians by Indian retailers. 447 U.S. at 150-51, 100 S.Ct. 2069. The Supreme Court noted that the state may attempt to collect such taxes directly or to enter into agreements with tribes — a decision at the discretion of the state. Id. at 155-56, 100 S.Ct. 2069. Thus, in matters relating to state taxes, the state’s means of enforcement — whether through direct collection, special contracts with tribes, or simply allowing non-Indian purchasers to “flout [their] legal obligation to pay the tax,” id. — is an issue of state law. We find nothing in the 1987 Act or the 1994 Act which suggests a federal right of action. After examining the four Cort factors, we hold that Nisqually has no private right of action to enforce either the 1987 Act or the 1994 Act. B. Nisqually’s Argument Nisqually does not specifically argue that the 1987 Act or the 1994 Act imply a private right of action. Rather, Nisqually argues that, under Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463, 96 S.Ct. 1634, 48 L.Ed.2d 96 (1976), it has a private right of action stemming from 28 U.S.C. § 1362. We disagree. Title 28 U.S.C. § 1362 confers jurisdiction to federal courts over actions “brought by any Indian tribe ... wherein the matter in controversy arises under the Constitution, laws, or treaties of the United States.” Moe explained that, pursuant to 28 U.S.C. § 1362, Indian tribes can bring “the kind of claims that could have been brought by the United States as trustee” in federal court. 425 U.S. at 472, 96 S.Ct. 1634. Nisqually does not argue, however, that the United States could bring a claim under the 1987 Act or the 1994 Act as trustee for Nisqually in federal court. Instead, Nisqually appears to argue that Moe essentially creates a private right" }, { "docid": "20195316", "title": "", "text": "Nation v. Pierce, 213 F.3d 566 (10th Cir.2000), to support its argument that the Eleventh Amendment does not proscribe this action against OTC and its Commissioners. MCN, however, reads Pierce far too broadly and fails to account for the substantial narrowing effect Blatchford has upon our holding in that case. In Pierce, we relied on the Supreme Court’s decision in Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463, 96 S.Ct. 1634, 48 L.Ed.2d 96 (1976), “a case involving an Indian tribe’s access to federal court ‘for the purpose of obtaining in-junctive relief from state taxation,’” to hold the Eleventh Amendment did not bar an Indian tribe’s suit against a state official to enjoin the State of Kansas from collecting taxes on motor fuel distributed to the tribes’ retail stations within Indian country. Pierce, 213 F.3d at 571 (quoting Blatchford, 501 U.S. at 784, 111 S.Ct. 2578); see also Winnebago Tribe v. Stovall, 341 F.3d 1202, 1207 (10th Cir.2003) (relying on Pierce to hold the Eleventh Amendment did not bar a tribe’s suit against a state official to enjoin a fuel tax assessment on a corporation owned by the tribe and transacting business within Indi an country). Most certainly, Blatchford noted the jurisdictional defense of Eleventh Amendment immunity was not at issue in Moe, and Moe did not hold that § 1362 eliminated the constitutional bar of sovereign immunity. Blatchford, 501 U.S. at 785 n. 3, 111 S.Ct. 2578. Rather, in Moe the State of Montana posed only the Tax Injunction Act as a jurisdictional defense to the complaint. See 28 U.S.C. § 1341. Blatchford pointed out that “[a] willingness to eliminate [a congressional obstacle to suit] in no way bespeaks a willingness to eliminate [a constitutional impediment to suit].” Blatchford, 501 U.S. at 785, 111 S.Ct. 2578. Nonetheless, in analyzing § 1362, the Court in Moe reasoned that “Congress contemplated that a tribe’s access to federal court to litigate a matter arising ‘under the Constitution, laws, or treaties’ would be at least in some respects as broad as that of the United States suing as the tribe’s trustee.”" }, { "docid": "3899112", "title": "", "text": "their culture, economy, and way of life. Therefore, the Smis-kins’ alleged transportation and possession of unstamped cigarettes without providing notice to the State cannot be the basis for prosecution under the CCTA. AFFIRMED. . Article III of the Treaty provides in relevant part: And provided, That, if necessary for the public convenience, roads may be run through the said reservation; and on the other hand, the right of way, with free access from the same to the nearest public highway, is secured to them; as also the right, in common with citizens of the United States, to travel upon all public highways. Treaty with the Yakamas, Art. Ill, 12 Stat. 951, 952-53 (1855) (second emphasis added). . Because we affirm the district court’s order granting the Smiskins’ motion to dismiss, we do not address their alternative argument invoking the rule of lenity. . These facts were presented in exhibits that the parties submitted to the district court, and which the court considered in ruling on the Smiskins' motion to dismiss. . Although states cannot tax cigarettes sold to tribal members on Indian reservations, they may tax on-reservation sales to non-Indians. See Washington v. Confederated Tribes of the Colville Reservation, 447 U.S. 134, 160-61, 100 S.Ct. 2069, 65 L.Ed.2d 10 (1980) (“Col-ville ”); Moe v. Confederated Salish and Kootenai Tribes of the Flathead Reservation, 425 U.S. 463, 480-81, 96 S.Ct. 1634, 48 L.Ed.2d 96 (1976). By requiring notice from tribal members before they transport unstamped cigarettes within the State, Washington is able to track cigarette imports for the purpose of enforcing the lawful tax on sales to non-Indians. .We presume the allegations of an indictment to be true for purposes of reviewing a district court’s ruling on a motion to dismiss. See United States v. Blinder, 10 F.3d 1468, 1471 (9th Cir.1993). . The other two exceptions, which do not apply here, arise if the statute is silent regarding applicability to Indian tribes and either: (1) the law touches \"exclusive rights of self-governance in purely intramural matters” or (2) there is proof \"by legislative history or some other means that Congress" }, { "docid": "12759376", "title": "", "text": "94 S.Ct. 772. The Supreme Court declined, therefore, to reach the argument that section 1362, in addition to eliminating the jurisdictional amount, was “intended to expand the scope of ‘arising under’ jurisdiction in the District Courts, beyond what judicial interpretations of that language have allowed under § 1331.Id. In 1991, however, the Supreme Court seemed to endorse Judge Friendly’s narrow reading of section 1362. In Blatchford v. Native Village of Noatak, 501 U.S. 775, 111 S.Ct. 2578, 115 L.Ed.2d 686 (1991), the Court said: Considering the text of § 1362 in the context of its enactment, one might well conclude that its sole purpose was to eliminate any jurisdictional minimum for “arising under” claims brought by Indian tribes. Tribes already had access to federal courts for “arising under” claims under § 1331, where the amount in controversy was greater than $10,000; for all that appears from its text, § 1362 merely extends that jurisdiction to claims below that minimum. Such a reading, moreover, finds support in the very title of the Act that adopted § 1362: “To amend the Judicial Code to permit Indian tribes to maintain civil actions in Federal district courts without regard to the $10,000 limitation, and for other purposes.” 80 Stat. 880. 501 U.S. at 784, 111 S.Ct. 2578. But Blatchford also recognized that a previous decision, Moe v. Confederated Salish and Kootenai Tribes, 425 U.S. 463, 96 S.Ct. 1684, 48 L.Ed.2d 96 (1976), had found an undefined “something more” in section 1362. 501 U.S. at 784, 111 S.Ct. 2578. According to Blatchford, Moe means that “ ‘at least in some respects’ ” — not “generally” — Indian tribes have broader access to federal courts, the way the United States would have if it were suing as trustee for the tribes. Id. (quoting 425 U.S. at 473, 96 S.Ct. 1634). The question, then, is what that “something more” means in this context. The class of cases in which the United States might bring suit as trustee for Indian tribes seems to be narrow. Some treatise writers and courts perceive it as limited to suits to protect" }, { "docid": "20195319", "title": "", "text": "1362. Moe, 425 U.S. at 472-73, 96 S.Ct. 1634. Cardinal to our decision in Pierce was Blatchford’s observation that “[t]he ‘respect’ at issue in Moe was access to federal court for the purpose of obtaining injunctive relief from, state taxation ”—the very “ ‘respect’ at issue” in Pierce. Blatchford, 501 U.S. at 784, 111 S.Ct. 2578 (emphasis added). Based on the sweep of Moe’s language in respect to a tribe’s suit to enjoin state taxation within Indian country, we opined: “Surely if an Indian tribe may maintain suit on its own behalf in federal court to enjoin collection of a state’s cigarette sales tax, it may maintain a similar suit on its own behalf to enjoin collection of a state’s motor fuel distribution tax.” Pierce, 213 F.3d at 572. But that is as far as Pierce went. Neither Moe nor Pierce may be read to stand for the proposition that § 1362 provides an Indian tribe access to federal court identical to that of the United States in all respects. Blatchford makes this painfully apparent. See Osage Nation v. Oklahoma ex rel. Oklahoma Tax Comm’n, 2007 WL 4553668, at *3-*5 (10th Cir.2007) (unpublished). Pierce certainly reeog- nized that providing the tribe access to federal court via § 1362 to seek injunctive relief from state taxation within Indian country was consonant not only with Moe, but also with the Supreme Court’s “unique Indian tax immunity jurisprudence,” a jurisprudence that “relies heavily on the doctrine of tribal sovereignty which historically gave state law no role to play within a tribe’s territorial boundaries.” Wagnon v. Prairie Band Potawatomi Nation, 546 U.S. 95, 112, 126 S.Ct. 676, 163 L.Ed.2d 429 (2005) (emphasis added) (internal quotations and ellipses omitted). But neither Moe nor Pierce purported to say “that § 1362 equated tribal access with the United States’ access generally, but only ‘at least in some respects.’ ” Blatchford, 501 U.S. at 784, 111 S.Ct. 2578. MCN “urges us, in effect, to eliminate this limitation utterly.” Id. Even if we were so inclined, we are powerless to do so given Blatch-ford. B. Our decision in Pierce" } ]

[ { "docid": "23194966", "title": "", "text": "the Army of the United States, as-a.posse comitatus, or otherwise, for the purpose of- executing the laws, except in such cases and under such circumstances as such employment of said force may be expressly authorized by the Constitution or by act of Congress; * * * and any person willfully violating the provisions of this section - shall be deemed guilty of a misdemeanor and on conviction thereof shall be punished by fine not exceeding $10,000 or imprisonment not exceeding two years or by both such fine and imprisonment.” As the Chandler case points out, the immediate purpose of the above provision was “to put an end to the use of federal troops to police state elections in the ex-Confederate states where the civil power had been reestablished.” Chandler v. United States, supra, 171 F.2d at page 936. By using the words “posse comitatus” the Congress intended to preclude the Army from assisting local law enforcement officers in carrying out their duties. The use of our Army of Occupation in Germany could not be characterized as -a “posse comitatus” since it was the law enforcement agency in Germany at the time of appellant’s arrest. “The right of one belligerent to occupy and govern the territory of the enemy while in its military possession is one of the incidents of war, and flows directly from the right to conquer. We, therefore, do not look to the Con stitution, or political institutions of the conqueror, for authority to establish a government for the territory of the enemy in his possession, during its military occupation, nor for the rules by which the powers of such government are regulated and limited.” Dooley v. United States, 1900, 182 U.S. 222, 230, 21 S.Ct. 762, 765, 45 L.Ed. 1074, quoting Halleck on International Law, Vol. II, page 444. See, also, MacLeod v. United States, 1912, 229 U.S. 416, 425, 33 S.Ct. 955, 57 L.Ed. 1260. The right to arrest being a part of the right to govern, it cannot be doubted that our Army of Occupation was authorized to arrest notwithstanding 10 U.S.C.A. § 15. Since" } ]

[ { "docid": "15999021", "title": "", "text": "of the act was its national.”. Id. § 402, cmt. g. The universality principle provides that, “[a] state has jurisdiction to define and prescribe punishment for certain offenses recognized by the community of nations as of universal concern, such as piracy, slave trade, attacks on or hijacking of aircraft, genocide, war crimes, and perhaps certain acts of terrorism,” regardless of the locus of their occurrence. Id. § 404 (emphasis added). Because Congress has the power to override international law if it so chooses, see United States v. Yunis, 924 F.2d 1086, 1091 (D.C.Cir.1991); United States v. Aluminum Co. of Am., 148 F.2d 416, 443 (2d Cir.1945); Restatement § 402, cmt. i., none of these five principles places ultimate limits on Congress’s power to reach extraterritorial conduct. At the same time, however, “[i]n determining whether a statute applies extraterritorially, [courts] presume that Congress does not intend to violate principles of international law .... [and] in the absence of an explicit Congressional directive, courts do not give extraterritorial effect to any statute that violates principles of international law.” United States v. Vasquez-Velasco, 15 F.3d 833, 839 (9th Cir.1994) (citing McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 21-22, 83 S.Ct. 671, 9 L.Ed.2d 547 (1963)). Hence, courts that find that a given statute applies extra-territorially typically pause to note that this finding is consistent with one or more of the five principles of extraterritorial jurisdiction under international law. See, e.g., United States v. MacAllister, 160 F.3d 1304, 1308 (11th Cir.1998), cert. denied, — U.S. -, 120 S.Ct. 318, 145 L.Ed.2d 114 (1999) (objective territorial principle); Vasquez-Velasco, 15 F.3d at 841 (objective territoriality principle, protective principle, and universality principle); United States v. Felix-Gutierrez, 940 F.2d 1200, 1205-1206 (9th Cir.1991), cert. denied, 508 U.S. 906, 113 S.Ct. 2332, 124 L.Ed.2d 244 (1993) (objective territoriality principle, protective principle, and passive personality principle); Benitez, 741 F.2d at 1316 (protective principle and passive personality principle); Pizzarusso, 388 F.2d at 11 (protective principle). The Bowman rule would appear to be most directly related to the protective principle, which, as noted, explicitly authorizes a state’s exercise" }, { "docid": "5726699", "title": "", "text": "of “any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws” of the United States, save in cases and under circumstances expressly authorized by the Constitution or Act of Congress. 18 U.S.C. § 1385. As suggested by the plain language of the statute, it clearly precludes the use of military personnel in civilian law enforcement. Defendants’ reliance on the Act under the present circumstances is misplaced, however. The Act expressly prohibits the Army and Air Force from enforcing civilian law, but not the Navy. See United States v. Yunis, 924 F.2d 1086, 1093 (D.C.Cir.1991) (reviewing the legislative history of the Posse Comitatus Act); Schowengerdt v. General Dynamics, 823 F.2d 1328 (9th Cir.1987). Moreover, the Act is inapplicable to on-base violations by civilians. United States v. Banks, 539 F.2d 14 (9th Cir.1976); United States v. Acosta-Cartagena, 128 F.Supp.2d 69 (D.Puerto Rico 2000). In view of the fact that pursuant to the charges, the Defen dants, all civilians, trespassed Camp Garcia, a military base under the control of the United States Navy, the Court finds that the Act is clearly inapplicable to them. Therefore, the dismissal and suppression of evidence requested by them is hereby denied. Ill THE NECESSITY DEFENSE The other issue raised by the Defendants is the applicability of the necessity defense. In short, the necessity defense requires a balancing test to determine whether a criminal act was committed to avoid a greater harm. The common elements of the necessity defense found in all common law and statutory definitions include the following: 1) the actor was faced with a choice of evils and chose the lesser evil; 2) the actor acted to avoid the most significant evil; 3) the remedy is not disproportionate to the evil sought to be avoided (ie., causal relationship between his acts and the harm to be averted); and 4) there were no adequate legal means or alternatives to escape the harm. See United States v. Maxwell, 254 F.3d 21, 27 (1st Cir.2001). The application of the necessity defense in the United States has been attempted in" }, { "docid": "10850989", "title": "", "text": "For these same reasons, appellants argue that the district court erred in refusing to exclude Major Held from the proceedings altogether. We cannot agree. The Posse Comitatus Act provides that whoever “willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall” commit an offense. 18 U.S.C. § 1385. Appellants would have this Court hold that Major Held’s “hybrid position constitutes the very merger of the civil laws and military authority that the Posse Comitatus Act prohibits.” Appellants’ Brief at 99-100. The legislative and judicial history of the Act, however, indicates that its purpose springs from an attempt to end the use of federal troops to police state elections in ex-Confederate states. United States v. Hartley, 486 F.Supp. 1348 (D.C. Fla.1980). In keeping sight of this original purpose, the Eighth Circuit has indicated that military involvement does not constitute a violation of the Act “unless it actually regulates, forbids, or compels some conduct on the part of those claiming relief.” Bissonette v. Haig, 776 F.2d 1384, 1390 (8th Cir.1985), adhered to on rehearing, 788 F.2d 494 (1986) (en banc), cert. granted, 479 U.S. 1083, 107 S.Ct. 1283, 94 L.Ed.2d 141 (1987); United States v. McArthur, 419 F.Supp. 186, 194 (D.N.D.), aff'd sub nom. United States v. Casper, 541 F.2d 1275 (8th Cir.1976), cert. denied, 430 U.S. 970, 97 S.Ct. 1654, 52 L.Ed.2d 362 (1977). It is not, however, necessary for this Court to determine whether the rule set out in Bissonette or some other form of guideline should be applicable to cases brought under the Posse Comitatus Act in this Circuit. Rather, we note that appellants have failed to recognize that the Act expressly provides an exception in “cases and under circumstances expressly authorized by the Constitution or Act of Congress.” Congress, by authorizing the appointment of Special Assistant United States Attorneys and • Assistant United States Attorneys to assist the Attorney General, has authorized Major Held’s appointment. 28 U.S.C. §§ 515, 543. This authorization contains no limitation on the persons whom the Attorney General may appoint, nor does" }, { "docid": "1420898", "title": "", "text": "the delay, (3) whether and how the defendant asserted his right to a speedy trial, and (4) the prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530-32, 92 S.Ct. 2182, 2191-93, 33 L.Ed.2d 101 (1972). If any of the first three factors does not weigh heavily against the government, the defendant must demonstrate actual prejudice from the delay. Davenport, 935 F.2d at 1239; United States v. Mitchell, 769 F.2d 1544, 1547 (11th Cir.1985). Although in the instant case the reasons for the delay do not weigh heavily against the government, see supra slip op. at 1476 n. 6, Greenberg makes no attempt to show actual prejudice. His claim for constitutional relief must therefore fail. See Davenport, 935 F.2d at 1239-40. C. Posse Comitatus Act Greenberg contends that the involvement of the United States Navy in his arrest constituted a violation of the Posse Comitatus Act that warranted dismissal of the indictment. The Posse Comitatus Act provides: Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as posse comitatus or otherwise to execute the law shall be fined not more than $10,000 or imprisoned not more than two years, or both. 18 U.S.C.A. § 1385 (West 1984). The Act by its own terms places no restrictions on Navy involvement with law enforcement agencies, accord United States v. Yunis, 924 F.2d 1086, 1093 (D.C.Cir.1991); Schowengerdt v. General Dynamics Corp., 823 F.2d 1328, 1339-40 (9th Cir.1987). Moreover, nothing in the Act’s legislative history suggests its application to naval operations. See H.R.Rep. No. 97-71 at 4, 1981 U.S.Code Cong. & Admin.News 1781, 1786 (Navy not bound by Posse Comitatus Act). Even if the Act were construed to apply to the Navy, see United States v. Ahumedo-Avendano, 872 F.2d 367, 372 n. 6 (11th Cir.1989) (citing in dicta circuit courts that have held that prohibitions of Act apply to Navy by implication or by executive act), the Act specifically excepts from its compass cases “expressly authorized by ... Act of Congress.” 18 U.S.C.A. § 1385." }, { "docid": "23666910", "title": "", "text": "this section shall be deemed guilty of a misdemeanor and on conviction thereof shall be punished by fine not exceeding $10,000 or imprisonment not exceeding two years or by both such fine and imprisonment. Provided, This section shall not be construed to apply to the District of Alaska.” The foregoing was originally a section inserted into an Army Appropriation Act as a backwash of the Reconstruction period following the Civil War. Its legislative history, as set forth in Lieber, The Use of the Army in Aid of the Civil Power, indicates that the immediate objective of the legislation was to put an end to the use of federal troops to police state elections in the ex-Confederate states where the civil power had been reestablished. In contrast to the criminal statute denouncing the crime of treason, this is the type of criminal statute which is properly presumed to have no extraterritorial application in the absence of statutory language indicating a contrary intent. See the quotation from United States v. Bowman, supra. Particularly, it would be unwarranted to assume that such a statute was intended to be applicable to occupied enemy territory, where the military power is in control and Congress has not set up a civil regime. Cf. Ex parte Milligan, 1866, 4 Wall. 2, 141, 142, 18 L.Ed. 281; MacLeod v. United States, 1913, 229 U.S. 416, 33 S.Ct. 955, 57 L.Ed. 1260; Hirabayashi v. United States, 1943, 320 U.S. 81, 93, 63 S.Ct. 1375, 87 L.Ed. 1774. The turning up of this obscure and all-but-fbrgotten statute is a credit to the industry of counsel; but'we know perfectly well that if the members of the Armed Forces who took Chandler into custody were prosecuted for a criminal offense under 10 U.S.C. A. § 15, such prosecution would surely fail. Counsel for appellant have not suggested any alternative procedure which in their view properly could have been employed to bring Chandler to trial; in fact, all their arguments involve the conclusion, which we deem unacceptable, that there was no way in which a court of the United States could obtain lawful" }, { "docid": "5726698", "title": "", "text": "FACTUAL BACKGROUND Pursuant to the information charged, on June 18, 2001, the Defendants entered Camp Garcia, a naval installation belonging to the United States Navy on the island of Vieques, Puerto Rico. They trespassed in protest against the military training operations that are periodically held there. Shortly after trespassing they were arrested and charged with unlawful entry into naval installation for any purpose prohibited by law, in violation of federal law. 18 U.S.C. § 1382. An initial appearance was held before a Magistrate Judge, who in turn set a bond for each. Defendants later presented several motions to dismiss (or suppress) in accordance to the Posse Comitatus Act (“the Act”). See 18 U.S.C. § 1385. Defendants also filed a motion announcing their intention of presenting the common law defense of necessity at trial. Hence, these are the two issues before the Court at this moment, and they shall be analyzed seriatim. II POSSE COMITATUS ACT The first issue raised by the Defendants’ is easily dismissed. Through the Act, Congress intended to prohibit the willful use of “any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws” of the United States, save in cases and under circumstances expressly authorized by the Constitution or Act of Congress. 18 U.S.C. § 1385. As suggested by the plain language of the statute, it clearly precludes the use of military personnel in civilian law enforcement. Defendants’ reliance on the Act under the present circumstances is misplaced, however. The Act expressly prohibits the Army and Air Force from enforcing civilian law, but not the Navy. See United States v. Yunis, 924 F.2d 1086, 1093 (D.C.Cir.1991) (reviewing the legislative history of the Posse Comitatus Act); Schowengerdt v. General Dynamics, 823 F.2d 1328 (9th Cir.1987). Moreover, the Act is inapplicable to on-base violations by civilians. United States v. Banks, 539 F.2d 14 (9th Cir.1976); United States v. Acosta-Cartagena, 128 F.Supp.2d 69 (D.Puerto Rico 2000). In view of the fact that pursuant to the charges, the Defen dants, all civilians, trespassed Camp Garcia, a military base under the control of" }, { "docid": "23594947", "title": "", "text": "(providing that motions alleging defects in instituting the prosecution and/or in the indictment “must be raised before trial”). Even absent waiver, he is not entitled to such a remedy. It is true that Federal Rule of Criminal Procedure 6(d)(1) narrowly limits who “may be present while the grand jury is in session,” and thus would have been violated by Captain Norris’s presence before the grand jury if he had not been properly appointed as an SAUSA. The Supreme Court, however, has adopted the harmless error standard of Federal Rule of Criminal Procedure 52(a) for violations of Rule 6(d), see United States v. Mechanik, 475 U.S. 66, 71-72, 106 S.Ct. 938, 89 L.Ed.2d 50 (1986), and there has been no assertion by Mr. Wooten on appeal that he was prejudiced by Captain Norris’s presence before the grand jury. See generally United States v. Fowlie, 24 F.3d 1059, 1066 (9th Cir.1994) (concluding the district court did not abuse its discretion by declining to dismiss the indictment based upon the unauthorized participation of an SAUSA in grand jury proceedings); United States v. Mendoza-Cecelia, 963 F.2d 1467, 1477 n. 9 (11th Cir.1992) (holding the PCA “provides no basis for the proposed remedy of dismissal of all charges”), abrogated on other grounds by Coleman v. Singletary, 30 F.3d 1420 (11th Cir.1994); United States v. Yunis, 924 F.2d 1086, 1093-94 (D.C.Cir.1991) (suggesting “dismissal of all charges against [defendant] might well be an inappropriate remedy if violations of the Posse Comita-tus Act were found”). Indeed, Mr. Wooten’s conviction by a trial jury effectively demonstrates there was probable cause to charge him with the offenses for which he was convicted. See United States v. Flores-Rivera, 56 F.3d 319, 328 (1st Cir.1995) (concluding the defendant’s conviction by a petit jury cured any alleged error before the grand jury). Finally, Mr. Wooten has not alleged, let alone explained, how the alleged deficiency in the appointment of Captain Norris adversely impacted the trial jury’s verdict. Although using Captain Norris as an SAU-SA in this case created a significant legal issue for Mr. Wooten, on the record presented there is no basis" }, { "docid": "15250278", "title": "", "text": "States v. Hartley, 796 F.2d 112, 115 (5th Cir.1986) (noting courts’ hesitation to adopt exclusionary rule for violations of Posse Comitatus Act); United States v. Roberts, 779 F.2d at 568 (refusing to adopt exclusionary rule). Nor is Yunis helped by 10 U.S.C. § 375 (1988), which requires the Secretary of Defense to issue regulations prohibiting “direct participation” by military personnel in a civilian “search, seizure, arrest, or other similar activity” unless expressly authorized by law. Reliance on this provision faces the same remedial hurdle as direct reliance on the Posse Comitatus Act: Under the Ker-Frisbie doctrine, outright dismissal of the charges against Yunis would not be an appropriate remedy for legal violations relating to his arrest. See United States v. Crews, 445 U.S. at 474, 100 S.Ct. at 1251. Nor would a violation of the regulations at issue amount to a constitutional violation, making application of an exclusionary rule or similar prophylactic measures inappropriate. See United States v. Caceres, 440 U.S. 741, 754-55, 99 S.Ct. 1465, 1472-73, 59 L.Ed.2d 733 (1979). In any event, we agree with the district court that no governmental illegality occurred. Regulations issued under 10 U.S.C. § 375 require Navy compliance with the restrictions of the Posse Comitatus Act, but interpret that Act as allowing “indirect assistance” to civilian authorities that does not “subject civilians to the exercise of military power that is regulatory, proscriptive, or compulsory in nature.” 32 C.F.R. § 213.10(a)(7) (1987). The regulations are consistent with judicial interpretations of the Posse Comitatus Act; in fact, they incorporate one of three tests employed to identify violations. See Yunis, 681 F.Supp. at 892 (setting out three tests); United States v. McArthur, 419 F.Supp. 186, 194 (D.N.D.1975) (“[T]he feared use which is prohibited by the posse comitatus statute is that which is regulatory, proscriptive or compulsory in nature ....”), aff'd sub nom. United States v. Casper, 541 F.2d 1275 (8th Cir.1976), cert. denied, 430 U.S. 970, 97 S.Ct. 1654, 52 L.Ed.2d 362 (1977). The district court found that Navy personnel played only a “passive” role in housing, transporting, and caring for Yunis while he was in" }, { "docid": "15250277", "title": "", "text": "(1986); see H.R. Rep. No. 71 at 4, U.S.Code Cong. & Admin.News 1786 (Navy “not legally bound” by Posse Comitatus Act). Furthermore, some courts have taken the view that the Posse Comitatus Act imposes no restriction on use of American armed forces abroad, noting that Congress intended to preclude military intervention in domestic civil affairs. See Chandler v. United States, 171 F.2d 921, 936 (1st Cir.1948), cert. denied, 336 U.S. 918, 69 S.Ct. 640, 93 L.Ed. 1081 (1949); D’Aquino v. United States, 192 F.2d 338, 351 (9th Cir.1951), cert. denied, 343 U.S. 935, 72 S.Ct. 772, 96 L.Ed. 1343 (1952). And even if these difficulties could be. overcome, a remedial problem would remain, as dismissal of all charges against Yunis might well be an inappropriate remedy if violations of the Posse Comitatus Act were found. See United States v. Cotten, 471 F.2d 744, 749 (9th Cir.) (rejecting dismissal as remedy for alleged violation of Posse Comitatus Act on Ker-Frisbie grounds), cert. denied, 411 U.S. 936, 93 S.Ct. 1913, 36 L.Ed.2d 396 (1973); see also United States v. Hartley, 796 F.2d 112, 115 (5th Cir.1986) (noting courts’ hesitation to adopt exclusionary rule for violations of Posse Comitatus Act); United States v. Roberts, 779 F.2d at 568 (refusing to adopt exclusionary rule). Nor is Yunis helped by 10 U.S.C. § 375 (1988), which requires the Secretary of Defense to issue regulations prohibiting “direct participation” by military personnel in a civilian “search, seizure, arrest, or other similar activity” unless expressly authorized by law. Reliance on this provision faces the same remedial hurdle as direct reliance on the Posse Comitatus Act: Under the Ker-Frisbie doctrine, outright dismissal of the charges against Yunis would not be an appropriate remedy for legal violations relating to his arrest. See United States v. Crews, 445 U.S. at 474, 100 S.Ct. at 1251. Nor would a violation of the regulations at issue amount to a constitutional violation, making application of an exclusionary rule or similar prophylactic measures inappropriate. See United States v. Caceres, 440 U.S. 741, 754-55, 99 S.Ct. 1465, 1472-73, 59 L.Ed.2d 733 (1979). In any event, we" }, { "docid": "23594943", "title": "", "text": "his appearance. Together, Captain Norris and Mr. Yancey prosecuted the case and obtained the conviction against Mr. Wooten. After trial, Mr. Wooten filed a motion to dismiss the criminal case against him on the grounds that Captain Norris’s participation in the prosecution of this case violated the PCA because a full-time military officer was used to prosecute a civilian in federal district court. The district court denied the motion to dismiss and Mr. Wooten now appeals that order. Generally, the court reviews the grant or denial of a motion to dismiss for an abuse of discretion. United States v. Giles, 213 F.3d 1247, 1248 (10th Cir.2000); United States v. Wood, 6 F.3d 692, 694 (10th Cir.1993). When, however, the dismissal involves issues of statutory interpretation, as is the case here, the court reviews the district court’s decision de novo. Giles, 213 F.3d at 1248-49; Wood, 6 F.3d at 694. The Posse Comitatus Act was enacted toward the end of the Reconstruction era after the Civil War “for the purpose of limiting the direct active use of federal troops by civil law enforcement officers to enforce the laws of this nation.” United States v. Hutchings, 127 F.3d 1255, 1257 (10th Cir.1997) (internal quotation omitted); see generally Mark David “Max” Maxwell, The Enduring Vitality of the Posse Comitatus Act of 1878, 37 Prosecutor 34, 34 (2003) (discussing the historical origins of the PCA). The PCA provides: Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both. 18 U.S.C. § 1385. It was intended “ ‘to prevent the use of the federal army to aid civil authorities in the enforcement of civilian laws.’ ” Nelson v. Geringer, 295 F.3d 1082, 1092 n. 11 (10th Cir.2002) (quoting Gilbert v. United States, 165 F.3d 470, 472 (6th Cir.1999)). There appears to be no dispute in this case that the United States Attorney for" }, { "docid": "15250274", "title": "", "text": "62, 65 (2d Cir.), cert. denied, 421 U.S. 1001, 95 S.Ct. 2400, 44 L.Ed.2d 668 (1975), and the Supreme Court has since reaffirmed the Ker-Frisbie doctrine, see Immigration and Naturalization Serv. v. Lopez-Mendoza, 468 U.S. 1032, 1039, 104 S.Ct. 3479, 3483, 82 L.Ed.2d 778 (1984); United States v. Crews, 445 U.S. 463, 474, 100 S.Ct. 1244, 1251, 63 L.Ed.2d 537 (1980). Even assuming, arguendo, that a district court could correctly dismiss a case otherwise properly before it for the reasons given in Toscanino, we find no merit in Yunis’ claim. In Yunis I, we reviewed the facts of Operation Goldenrod in some detail, including the deception used to arrest Yunis, his injuries and hardships while in custody, and the delay between his arrest and arraignment in the United States. The court sought to determine whether or not these circumstances voided Yunis’ waiver of Fifth and Sixth Amendment rights; we concluded that while the government’s conduct was neither “picture perfect” nor “a model for law enforcement behavior,” the “discomfort and surprise” to which appellant was subjected did not render his waiver invalid. Yunis I, 859 F.2d at 969. Similarly, we now find nothing in the record suggesting the sort of intentional, outrageous government conduct necessary to sustain appellant’s jurisdictional argument. Cf. Sami v. United States, 617 F.2d 755, 774 (D.C.Cir.1979) (finding “no shocking behavior characterized by abduction or brutality which would support an actionable constitutional claim”). B. Posse Comitatus Act Next, Yunis appeals from the district court’s denial of his motion to dismiss on the basis of the government’s alleged violation of the Posse Comitatus Act, 18 U.S.C. § 1385 (1988), which establishes criminal penalties for willful use of “any part of the Army or the Air Force” in law enforcement, unless expressly authorized by law. See United States v. Yunis, 681 F.Supp. 891 (D.D.C.1988). Despite the Posse Comitatus Act’s express limitation to the Army and Air Force, appellant seeks dismissal of the indictment on the grounds that the Navy played a direct role in Operation Goldenrod. We cannot agree that Congress’ words admit of any ambiguity. By its terms, 18" }, { "docid": "15250275", "title": "", "text": "did not render his waiver invalid. Yunis I, 859 F.2d at 969. Similarly, we now find nothing in the record suggesting the sort of intentional, outrageous government conduct necessary to sustain appellant’s jurisdictional argument. Cf. Sami v. United States, 617 F.2d 755, 774 (D.C.Cir.1979) (finding “no shocking behavior characterized by abduction or brutality which would support an actionable constitutional claim”). B. Posse Comitatus Act Next, Yunis appeals from the district court’s denial of his motion to dismiss on the basis of the government’s alleged violation of the Posse Comitatus Act, 18 U.S.C. § 1385 (1988), which establishes criminal penalties for willful use of “any part of the Army or the Air Force” in law enforcement, unless expressly authorized by law. See United States v. Yunis, 681 F.Supp. 891 (D.D.C.1988). Despite the Posse Comitatus Act’s express limitation to the Army and Air Force, appellant seeks dismissal of the indictment on the grounds that the Navy played a direct role in Operation Goldenrod. We cannot agree that Congress’ words admit of any ambiguity. By its terms, 18 U.S.C. § 1385 places no restrictions on naval participation in law enforcement operations; an earlier version of the measure would have expressly extended the bill to the Navy, but the final legislation was attached to an Army appropriations bill and its language was accordingly limited to that service. See H.R. Rep. No. 71, Part II, 97th Cong., 1st Sess. 4 (1981), reprinted in 1981 U.S.Code Cong. & Admin.News 1781, 1786 [hereinafter H.R. Rep. No. 71]; Note, The Posse Comitatus Act: Reconstruction Politics Reconsidered, 13 Am.Crim.L.Rev. 703, 709-10 (1976). Reference to the Air Force was added in 1956, consistent with reassignment of Army aviation responsibilities to that new branch of the military. See H.R. Rep. No. 71 at 4, 1981 U.S.Code Cong: & Admin.News 1786. Nothing in this history suggests that we should defy the express language of the Posse Comita-tus Act by extending it to the Navy, and we decline to do so. Accord United States v. Roberts, 779 F.2d 565, 567 (9th Cir.), cert. denied, 479 U.S. 839, 107 S.Ct. 142, 93 L.Ed.2d 84" }, { "docid": "1420916", "title": "", "text": "possession, manufacture, or distribution committed outside the territorial jurisdiction of the United States.\" See 46 U.S.C.A. § 1903(h); see also United States v. Riker, 670 F.2d 987, 988 (11th Cir.1982) (construing same language of predecessor statute to \"fairly shout[ ]\" Congress’ intent to reach extraterritorial acts of possession). For purposes of jurisdiction and arrest under the statute, it is sufficient that the Apache III was a vessel of United States registry. See 46 U.S.C.A. § 1903(c). . Greenberg nevertheless argues that 10 U.S.C.A. § 374 (West Supp.1992) bars naval personnel from operating naval equipment for law enforcement purposes without the express authorization of the Secretary of Defense. See id. This section, however, must be read within the context of the entire chapter. See United States v. Roberts, 779 F.2d 565, 567 (9th Cir.), cert. denied, 479 U.S. 839, 107 S.Ct. 142, 93 L.Ed.2d 84 (1986). In particular, section 374 must be considered in light of section 379, which expressly dictates that the Secretary of Defense “provide that there be assigned on board every appropriate surface naval vessel at sea in a drug interdiction area members of the Coast Guard who are trained in law enforcement and have powers ... including the power to make arrests and to carry out searches and seizures.” Id. . In any event) the Posse Comitatus Act provides no basis for the proposed remedy of dismissal of all charges. See United States v. Yunis, 924 F.2d 1086, 1093-94 (D.C.Cir.1991); United States v. Cotten, 471 F.2d 744, 749 (9th Cir.), cert. denied, 411 U.S. 936, 93 S.Ct. 1913, 36 L.Ed.2d 396 (1973). Alternatively, Greenberg argues that a violation of the Act warrants application of an exclusionary rule. This Circuit has declined to fashion an exclusionary rule until such time as widespread and repeated violations of the Posse Comitatus Act demonstrate a need for such sanction. United States v. Wolffs, 594 F.2d 77, 85 (5th Cir.1979); see United States v. Garcia, 672 F.2d 1349, 1368 n. 33 (11th Cir.1982); United States v. Hartley; 678 F.2d 961, 978 (11th Cir.1982). Recent alleged violations of the Act have been few," }, { "docid": "17203615", "title": "", "text": "to move to suppress the evidence or object to the introduction of the evidence obtained by military personnel and the testimony of military personnel in violation of the PCA, 10 U.S.C. § 375. Although the PCA forbids the use of only Army or Air Force personnel in non-military law enforcement activities, the Secretary of Defense has issued regulations, authorized by 10 U.S.C. § 375, prohibiting direct participation by all military personnel including members of the Navy in any civilian search, seizure, arrest, or other similar activity unless expressly authorized by law. The Government recognizes that the NCIS is the federal law enforcement agency which investigates those felony offenses that affect the interests of the Navy and Marines; consequently, they act as agents of the Navy and are bound by the provisions of the Posse Comitatus Act. Govt. Opp’n at 25; United States v. Yunis, 924 F.2d 1086, 1094 (D.C.Cir.1991). Yunis squarely held that “[rjegulations issued under 10 U.S.C. § 375 require Navy compliance with the restrictions of the Posse Comitatus Act....” 924 F.2d at 1094. However, even though that Act clearly restricts military involvement in civilian law enforcement, it is not the intent of the PCA to limit the military from investigating criminal activities committed by its own members whether such activities occur on or off a military base. Applewhite v. U.S. Air Force, 995 F.2d 997, 1001 (10th Cir.1993); United States v. Griley, 814 F.2d 967, 976 (4th Cir.1987). There can be no question that the Defendant, an Ensign in the Navy, was on active duty with the United States Navy in April 2007, the date of this offense. Given that fact, NCIS had an independent military purpose for participating in the investigation of Defendant’s activities. The cases cited by Defendant are distinguishable from this case because they all involved defendants who were not in the military, but were the subject of criminal investigation which did involve the participation of investigators who were members of the military. That is precisely the conduct prohibited by the Posse Comitatus Act. For these reasons, Defendant’s trial counsel was not ineffective in failing" }, { "docid": "17203614", "title": "", "text": "Under the Sixth Amendment, trial counsel is held to “an objective standard of reasonableness,” i.e., following the “prevailing professional norms.” Strickland v. Washington, 466 U.S. 668, 691, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Applying this standard, the Court cannot conclude that trial counsel’s failure to make an argument under the Speedy Trial Act for which there was no supporting precedent in our circuit, fell below an objective standard of reasonableness. Second, Defendant argues that trial counsel’s performance prejudiced his defense, i.e., that there is a reasonable probability that but for counsel’s unprofessional errors, the result would have been different. Strickland, 466 U.S. at 687, 693-94, 104 S.Ct. 2052. Defendant cannot demonstrate any prejudice. It cannot be said that there was a “reasonable probability” that if defense counsel had made a Speedy Trial Act Motion based upon a new theory for which there was no supporting case law in our Circuit, that he would have prevailed. B. Defendant’s Posse Comitatus Act Claim Defendant argues that trial counsel rendered ineffective assistance of counsel because he failed to move to suppress the evidence or object to the introduction of the evidence obtained by military personnel and the testimony of military personnel in violation of the PCA, 10 U.S.C. § 375. Although the PCA forbids the use of only Army or Air Force personnel in non-military law enforcement activities, the Secretary of Defense has issued regulations, authorized by 10 U.S.C. § 375, prohibiting direct participation by all military personnel including members of the Navy in any civilian search, seizure, arrest, or other similar activity unless expressly authorized by law. The Government recognizes that the NCIS is the federal law enforcement agency which investigates those felony offenses that affect the interests of the Navy and Marines; consequently, they act as agents of the Navy and are bound by the provisions of the Posse Comitatus Act. Govt. Opp’n at 25; United States v. Yunis, 924 F.2d 1086, 1094 (D.C.Cir.1991). Yunis squarely held that “[rjegulations issued under 10 U.S.C. § 375 require Navy compliance with the restrictions of the Posse Comitatus Act....” 924 F.2d at 1094." }, { "docid": "1420899", "title": "", "text": "uses any part of the Army or the Air Force as posse comitatus or otherwise to execute the law shall be fined not more than $10,000 or imprisoned not more than two years, or both. 18 U.S.C.A. § 1385 (West 1984). The Act by its own terms places no restrictions on Navy involvement with law enforcement agencies, accord United States v. Yunis, 924 F.2d 1086, 1093 (D.C.Cir.1991); Schowengerdt v. General Dynamics Corp., 823 F.2d 1328, 1339-40 (9th Cir.1987). Moreover, nothing in the Act’s legislative history suggests its application to naval operations. See H.R.Rep. No. 97-71 at 4, 1981 U.S.Code Cong. & Admin.News 1781, 1786 (Navy not bound by Posse Comitatus Act). Even if the Act were construed to apply to the Navy, see United States v. Ahumedo-Avendano, 872 F.2d 367, 372 n. 6 (11th Cir.1989) (citing in dicta circuit courts that have held that prohibitions of Act apply to Navy by implication or by executive act), the Act specifically excepts from its compass cases “expressly authorized by ... Act of Congress.” 18 U.S.C.A. § 1385. The National Drug Interdiction Improvement Act of 1986 created such an exception, providing for members of the Coast Guard to be assigned to duty on board naval vessels in drug interdiction areas for performance of law enforcement functions. See 10 U.S.C.A. § 379 (West Supp.1992); see also United States v. Borrego, 885 F.2d 822, 824 n. 1 (11th Cir.1989) (holding in dicta that § 379 constitutes exception to Posse Comitatus Act). In the case at bar, the Coast Guard did the actual boarding, arrest, interrogation, and ensuing investigation of all criminal matters. Consequently, the passive participation of the Navy in the arrest of the crew of the Apache III did not implicate the Posse Comitatus Act. D. Request for Jury Instruction Greenberg next argues that the district court committed reversible error by refusing to offer an instruction that purportedly summarized his theory of the case. His instruction stated in relevant part: It is the theory of the Defendant that at the time of his arrest that the vessel known as the Apache III was not" }, { "docid": "23666909", "title": "", "text": "133, 36 S.Ct. 290, 60 L.Ed. 562. In the case at bar, however, the situation does not remotely resemble that in the Rauscher case, for here Chandler was not taken into custody and returned to the United States pursuant to the extradition treaty between the United States and Germany. His arrest by our occupying forces was wholly outside the treaty, and not in violation of any international undertaking either expressed or implied in the treaty. We need refer only briefly to the argument based upon alleged violation of a provision of the Act of June 18, 1878, 20 Stat. 152, which, in its present form, reads as follows, 10 U.S.C.A. § 15: “It shall not be lawful to employ any part of the Army of the United States, as a posse comitatus, or otherwise, for the purpose of executing the laws, except in such cases and under such circumstances as such employment of said force may be expressly authorized by the Constitution or by act of Congress; and any person willfully violating the provisions of this section shall be deemed guilty of a misdemeanor and on conviction thereof shall be punished by fine not exceeding $10,000 or imprisonment not exceeding two years or by both such fine and imprisonment. Provided, This section shall not be construed to apply to the District of Alaska.” The foregoing was originally a section inserted into an Army Appropriation Act as a backwash of the Reconstruction period following the Civil War. Its legislative history, as set forth in Lieber, The Use of the Army in Aid of the Civil Power, indicates that the immediate objective of the legislation was to put an end to the use of federal troops to police state elections in the ex-Confederate states where the civil power had been reestablished. In contrast to the criminal statute denouncing the crime of treason, this is the type of criminal statute which is properly presumed to have no extraterritorial application in the absence of statutory language indicating a contrary intent. See the quotation from United States v. Bowman, supra. Particularly, it would be unwarranted" }, { "docid": "15250276", "title": "", "text": "U.S.C. § 1385 places no restrictions on naval participation in law enforcement operations; an earlier version of the measure would have expressly extended the bill to the Navy, but the final legislation was attached to an Army appropriations bill and its language was accordingly limited to that service. See H.R. Rep. No. 71, Part II, 97th Cong., 1st Sess. 4 (1981), reprinted in 1981 U.S.Code Cong. & Admin.News 1781, 1786 [hereinafter H.R. Rep. No. 71]; Note, The Posse Comitatus Act: Reconstruction Politics Reconsidered, 13 Am.Crim.L.Rev. 703, 709-10 (1976). Reference to the Air Force was added in 1956, consistent with reassignment of Army aviation responsibilities to that new branch of the military. See H.R. Rep. No. 71 at 4, 1981 U.S.Code Cong: & Admin.News 1786. Nothing in this history suggests that we should defy the express language of the Posse Comita-tus Act by extending it to the Navy, and we decline to do so. Accord United States v. Roberts, 779 F.2d 565, 567 (9th Cir.), cert. denied, 479 U.S. 839, 107 S.Ct. 142, 93 L.Ed.2d 84 (1986); see H.R. Rep. No. 71 at 4, U.S.Code Cong. & Admin.News 1786 (Navy “not legally bound” by Posse Comitatus Act). Furthermore, some courts have taken the view that the Posse Comitatus Act imposes no restriction on use of American armed forces abroad, noting that Congress intended to preclude military intervention in domestic civil affairs. See Chandler v. United States, 171 F.2d 921, 936 (1st Cir.1948), cert. denied, 336 U.S. 918, 69 S.Ct. 640, 93 L.Ed. 1081 (1949); D’Aquino v. United States, 192 F.2d 338, 351 (9th Cir.1951), cert. denied, 343 U.S. 935, 72 S.Ct. 772, 96 L.Ed. 1343 (1952). And even if these difficulties could be. overcome, a remedial problem would remain, as dismissal of all charges against Yunis might well be an inappropriate remedy if violations of the Posse Comitatus Act were found. See United States v. Cotten, 471 F.2d 744, 749 (9th Cir.) (rejecting dismissal as remedy for alleged violation of Posse Comitatus Act on Ker-Frisbie grounds), cert. denied, 411 U.S. 936, 93 S.Ct. 1913, 36 L.Ed.2d 396 (1973); see also United" }, { "docid": "1420917", "title": "", "text": "naval vessel at sea in a drug interdiction area members of the Coast Guard who are trained in law enforcement and have powers ... including the power to make arrests and to carry out searches and seizures.” Id. . In any event) the Posse Comitatus Act provides no basis for the proposed remedy of dismissal of all charges. See United States v. Yunis, 924 F.2d 1086, 1093-94 (D.C.Cir.1991); United States v. Cotten, 471 F.2d 744, 749 (9th Cir.), cert. denied, 411 U.S. 936, 93 S.Ct. 1913, 36 L.Ed.2d 396 (1973). Alternatively, Greenberg argues that a violation of the Act warrants application of an exclusionary rule. This Circuit has declined to fashion an exclusionary rule until such time as widespread and repeated violations of the Posse Comitatus Act demonstrate a need for such sanction. United States v. Wolffs, 594 F.2d 77, 85 (5th Cir.1979); see United States v. Garcia, 672 F.2d 1349, 1368 n. 33 (11th Cir.1982); United States v. Hartley; 678 F.2d 961, 978 (11th Cir.1982). Recent alleged violations of the Act have been few, see Ahumedo-Avendano, 872 F.2d at 372-73 (1989); Borrego, 885 F.2d at 824 (1989); United States v. Bacon, 851 F.2d 1312 (11th Cir.1988); Hartley, 678 F.2d at 978 (1982), and we find no basis in the present case to justify the creation of an exclusionary rule. Accord United States v. Griley, 814 F.2d 967, 976 (4th Cir.1987); United States v. Hartley, 796 F.2d 112, 115 (5th Cir.1986); see also United States v. Roberts, 779 F.2d 565, 568 (9th Cir.1986) (exclusionary rule not warranted for violation of Navy regulations and 10 U.S.C. §§ 371-78). . Greenberg also argues that the sentencing court clearly erred by refusing to give him a two-level reduction for acceptance of responsibility. The decision of the sentencing court “ ‘is entitled to great deference on review and should not be disturbed unless it is without foundation.'\" United States v. Ignancio Munio, 909 F.2d 436, 439 (11th Cir.1990), cert. denied, — U.S. —, 111 S.Ct. 1393, 113 L.Ed.2d 449 (1991) (quoting U.S.S.G. § 3E1.1 comment n. 5). A defendant’s admission of guilt does not" }, { "docid": "5353707", "title": "", "text": "in a search of Charles’ pickup truck and seized several items of evidence from that vehicle. In addition, shortly after his arrest, Charles stated that he would have to admit the marijuana was his because he was caught with it. The trial evidence included testimony by Guardsmen, identification of the appellants based on their surveillance, marijuana, garbage bags, the pocket knives, copper wire, hunting packs, the seized firearms and ammunition, Charles’ statements, and photographs. All this evidence was discovered, seized, or otherwise obtained, in part, by members of the Kentucky National Guard who were at the scene. The Posse Comitatus Act, on which appellants base their claim that the arrests and ensuing seizure of their belongings and acquisition of Charles’ statement were unlawful ; provides: Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined not more than $10,000 or imprisoned not more than two years, or both. 18 U.S.C. § 1385. The purpose of this statute is to prevent use of the federal army to aid civil authorities in the enforcement of civilian laws. Congress adopted the Act’s precursor in 1878 in response to abuses resulting from such use in former Confederate States after the Civil War. See generally United States v. Hartley, 486 F.Supp. 1348, 1356 (M.D.Fla.1980). The Act reflects a concern, which antedates the Revolution, about the dangers to individual freedom and liberty posed by use of a standing army to keep civil peace. See David E. Engdahl, Soldiers, Riots and Revolution: The Law and History of Military Troops in Civil Disorders, 57 Iowa L.Rev. 1 (1971). By its own terms, the Act applies to the Army and Air Force. United States v. Yunis, 924 F.2d 1086, 1093 (D.C.Cir.1991) (Act inapplicable to the Navy); Schowengerdt v. General Dynamics Corp., 823 F.2d 1328, 1340 (9th Cir.1987) (same). See also United States v. Roberts, 779 F.2d 565, 567 (9th Cir.1986) (Act extended by Executive Order to include the Navy.)" } ]

[ { "docid": "5328509", "title": "", "text": "in deciding the case before us, however, that the Supreme Court has held that a court of appeals should, on its own initiative, take steps to protect an absent party through consideration of the Rule 19 issue, even when that issue was not presented to the district court nor raised by the parties to the appeal. Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 111, 88 S.Ct. 733, 19 L.Ed.2d 936 (1968). In addressing the issue raised by amici we will assume that they are parties who, within the terms of Rule 19(a)(2), claim an interest in the subject of this action and who are so situated that the disposition of this action in their absence may impair or impede their ability to protect that interest in the District of Columbia litigation. Furthermore, it is self-evident that the non-joinder of the requesters has left the Commission subject to a substantial risk of incurring inconsistent obligations with respect to the disclosure of the TV-related accident data. Nonetheless, we emphasize that the Supreme Court has made it clear that in deciding the Rule 19 issue when first raised on appeal the reviewing court must consider the fact that a judgment binding on the parties has already been reached after extensive litigation. See Provident Bank, supra, 390 U.S. at 109, 88 S.Ct. 733. Viewing the interests served by Rule 19 as they apply to this case “entirely from an appellate perspective,” id., we conclude that amici’s contention must be rejected. Here, as in Provident Bank, the plaintiffs’ interest in having a forum has been greatly enhanced by “a strong additional interest in preserving [their] judgment.” Id. 11Q, 88 S.Ct. 738. Were this Court to vacate the permanent injunction entered by the district court solely because of the requesters’ non-joinder, that interest would be destroyed. Second, we may assume that consideration of the Commission’s interest in avoiding the possibility that the relief granted the manufacturers in this suit will be inconsistent with the judgment eventually entered in the District of Columbia litigation has been foreclosed by the Commission’s failure to assert" } ]

[ { "docid": "21192101", "title": "", "text": "judgment rendered in the person’s absence might be prejudicial to the person or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person’s absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for non-joinder. Fed.R.Civ.P. 19(b). The Supreme Court has summarized these four factors as follows: (1) whether the party sought to be joined has an interest in having a forum and whether a satisfactory alternate forum exists; (2) the interest of the party seeking joinder in avoiding “multiple litigation, or inconsistent relief, or sole responsibility for a liability he shares with another”; (3) “the interest of the outsider whom it would have been desirable to join”; and (4) “the interest of the courts and the public in complete, consistent, and efficient settlement of controversies.” Holland v. Fahnestock & Co., Inc., 210 F.R.D. 487, 494 (S.D.N.Y.2002) (quoting Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 109-11, 88 S.Ct. 733, 19 L.Ed.2d 936 (1968)). If the court ultimately determines that the party is indispensable, then the court must dismiss the action pursu ant to Rule 19(b). Viacom, 212 F.3d at 725 (citing ComTech Dev. Co. v. Univ. of Conn. Educ. Properties, Inc., 102 F.3d 677, 681-82 (2d Cir.1996) (citing Provident, 390 U.S. at 108-25, 88 S.Ct. 733)). The party moving for dismissal for failure to join an indispensable party “has the burden of producing evidence showing the nature of the interest possessed by an absent party and that the protection of that interest will be impaired by the absence.” Holland, 210 F.R.D. at 495 (quoting Citizen Band Potawatomi Indian Tribe v. Collier, 17 F.3d 1292, 1293 (10th Cir.1994)). In deciding the motion, the court may consider matters outside the pleadings. Holland, 210 F.R.D. at 495 (citing cases and other authority). 2. Analysis Defendants contend that Capstar is an indispensable party on the ground that it is at least a joint employer of" }, { "docid": "6328985", "title": "", "text": "“a single entity with a single management team,” that they co-operate in all areas, and — of signal importance — that they exchange all relevant business information. Pis.’ Opp’n Br. at 12:6-12; Vapnek Decl. in Supp. of Opp’n, Ex. 22 at p. 47; id., Ex. 23. On this basis, the Court finds, prima facie, that defendant .companies are within the scope of its specific jurisdiction. D. Motion to dismiss for failure to join indispensable parties 1. Legal standard A person claiming an interest in the subject of a civil action shall, if subject to service and unless joinder of the person would deprive the court of jurisdiction, be joined to the action if those already parties cannot be accorded complete relief in the person’s absence, or if the person’s interest in the matter may be prejudiced by the outcome, or if non-joinder of the person would expose another party to a substantial risk of multiple or inconsistent obligations. Fed.R.Civ.P. 19(a). If the person has not been joined, the court shall order that the person be made a party. Id. Such a person is considered a “necessary” party ' to the action. Temple v. Synthes Corp., 498 U.S. 5, 111 S.Ct. 315, 112 L.Ed.2d 263 (1990). If the person cannot be joined, the court must determine whether “equity and good conscience” will permit the action to proceed. Fed. R.Civ.P. 19(a). If not, the person is considered to be an “indispensable” party to the action. Id.; Temple, 498 U.S. at 7, 111 S.Ct. at 816. Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 118-19, 88 S.Ct. 733, 742-43, 19 L.Ed.2d 936 (1968). A litigation must be dismissed if an indispensable party cannot be joined. Fed.R.Civ.P. 12(b)(7). Determination of this issue thus proceeds by a two-part inquiry. When a court has found that a party is “necessary” and should be joined “if feasible,” but that joinder is not possible, it must then decide whether to dismiss or to proceed without that party. Provident Tradesmens Bank, 390 U.S. at 118-19, 88 S.Ct. at 742-43. Thus, the decision to proceed is a" }, { "docid": "23510676", "title": "", "text": "joinder would be desirable for a just adjudication of the action . . . .” Wright & Miller, Federal Practice and Procedure: Civil § 1604, at 32 (1972). Rule 19(a) is applicable when (1) failure to join an absentee would prevent complete relief or (2) where an absentee “claims an interest relating to the subject of the action and is so situated” that its absence will impair its ability to protect that interest or will leave any of the parties subject to multiple or inconsistent obligations, and the risk of the latter is substantial. See, e. g., Morgan Guaranty Trust Co. v. Martin, 466 F.2d 593, 598 & n. 6 (7th Cir. 1972); FTC v. Manager Retail Credit Co., 357 F.Supp. 347, 354 (D.D.C.1973); hut see Window Glass Cutters League of America, AFL-CIO v. American St. Gobain Corp., 47 F.R.D. 255, 258 (W.D.Pa.1969), aff’d, 428 F.2d 353 (3d Cir. 1970). The practical, and not the theoretical, controls. See Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 106-107, 110, 88 S.Ct. 733, 19 L.Ed.2d 936 (1968). The As sociation has claimed no interest relating to this action. The possibility of harm to the Association, see Zwack v. Kraus Bros. & Co., 93 F.Supp. 963 (S. D.N.Y.1950), or the risk of multiple obligations has not been demonstrated. The mere fact that a decision in this case could conceivably affect the Association does not automatically require its joinder. See, e. g., Provident Tradesmens Bank, supra, 390 U.S. at 110, 88 S.Ct. 733; ACLU v. Board of Public Works, 357 F.Supp. 877, 884 (D.Md. 1972); Hoots v. Commonwealth of Pennsylvania, 359 F.Supp. 807, 822 (W. D.Pa.1973), appeal dismissed, 495 F.2d 1095 (3d Cir. 1974). If it later appears that joinder is desirable or necessary, it can then be effectuated. See Advisory Committee’s Note to Rule 19, reprinted in 39 F.R.D. 89, 93 (1966); ACLU v. Board of Public Works, supra, 357 F. Supp. at 885. Cases holding that a union which has negotiated a collective bargaining agreement with an employer is an indispensable party in a suit by an employee against" }, { "docid": "633663", "title": "", "text": "Tacoma, 717 F.2d 1251 (9th Cir.1983), cert. denied, 465 U.S. 1049, 104 S.Ct. 1324, 79 L.Ed.2d 720 (1984). In deciding this issue, we are guided by the Supreme Court’s decision in Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 109-11, 88 S.Ct. 733, 737-39, 19 L.Ed.2d 936 (1968). The Court examined Rule 19(b) as follows: Rule 19(b) suggests four “interests” that must be examined in each case to determine whether, in equity and good conscience, the court should proceed without a party whose absence from the litigation is compelled. * * * First, the plaintiff has an interest in having a forum. * * * Second, the defendant may properly wish to avoid multiple litigation, or inconsistent relief, or sole responsibility for a liability he shares with another. * * * Third, there is the interest of the outsider whom it would have been desirable to join. * * * Fourth, there remains the interest of the courts and the public in complete, consistent, and efficient settlement of controversies. The Court noted that: “Whether a person is ‘indispensable’, that is, whether a particular lawsuit must be dismissed in the absence of that person, can only be determined in the context of particular litigation. * * * [A] court does not know whether a particular person is ‘indispensable’ until it has examined the situation to determine whether it can proceed without him.” Id. at 118-19, 88 S.Ct. at 742-43. We followed this four-part test in Fetzer v. Cities Service Oil Co., 572 F.2d 1250, 1253 (8th Cir.1978), and stated that “the Supreme Court [in Provident Tradesmens ] rejected an inflexible and formulistie approach to joinder problems. The Court made it clear that Rule 19(b) requires a district court to undertake a ‘practical examination of the circumstances,’ 390 U.S. at 119-20, n. 16, 88 S.Ct. 733 [743, n. 16] in order to determine whether it must dismiss the action or may ‘in equity and good conscience’ proceed without an absent party.” We therefore turn to an examination of the four factors as expressed in Provident Tradesmens. The first factor" }, { "docid": "11820815", "title": "", "text": "102, 118, 88 S.Ct. 733, 742, 19 L.Ed.2d 936 (1967); Haas v. Jefferson National Bank, 442 F.2d 394, 398 (1971). Moreover, regardless of the proper characterization of the injury to Challenge, we conclude that Lowell Kramer is not an indispensable party under Rule 19. Rule 19 states a two-part test for determining whether a party is indispensable. First, the court must ascertain under the standards of Rule 19(a) whether the person in question is one who should be joined if feasible. If the person should be joined but cannot be (because, for example, joinder would divest the court of jurisdiction) then the court must inquire whether, applying the factors enumerated in Rule 19(b), the litigation may continue. See, e.g., Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 88 S.Ct. 733, 19 L.Ed.2d 936 (1967). Our first step in analyzing the ease at bar, therefore, is to decide whether Lowell Kramer is a person who should be joined if feasible under Rule 19(a). In making this decision, “pragmatic concerns, especially the effect on the parties and the litigation,” control. Smith, supra at 405. See Provident Tradesmens, supra. Rule 19(a) states in relevant part: (a) Persons to be Joined if Feasible. A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence, complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the act in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. Viewing these factors in light of “pragmatic concerns,” we conclude that Lowell Kramer is not a person who should be joined if feasible. As to the first factor, the only" }, { "docid": "633662", "title": "", "text": "the allottees and damages paid. They claim no substantial risk of inconsistent obligations, because the United States has refused to sue on behalf of the allottees, thus making its position clear. Judge Bogue held the United States to be an indispensable party, requiring dismis sal of the entire action with prejudice pursuant to Fed.R.Civ.P. 19(b). Appellants, however, urge the following definition of indispensable party: An indispensable party is one who has such an interest in the subject-matter of the controversy that a final decree cannot be rendered between the other parties to the suit without radically and injuriously affecting his interest, or without leaving the controversy in such a situation that its final determination may be inconsistent with equity and good conscience. Silver King Coalition Mines Co. of Nevada v. Silver King Consolidated Mining Co. of Utah, 204 F. 166, 169 (8th Cir.1913). Appellants argue that under this standard, an action to protect trust land may be brought in “equity and good conscience” without involving the United States. See Puyallup Indian Tribe v. Port of Tacoma, 717 F.2d 1251 (9th Cir.1983), cert. denied, 465 U.S. 1049, 104 S.Ct. 1324, 79 L.Ed.2d 720 (1984). In deciding this issue, we are guided by the Supreme Court’s decision in Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 109-11, 88 S.Ct. 733, 737-39, 19 L.Ed.2d 936 (1968). The Court examined Rule 19(b) as follows: Rule 19(b) suggests four “interests” that must be examined in each case to determine whether, in equity and good conscience, the court should proceed without a party whose absence from the litigation is compelled. * * * First, the plaintiff has an interest in having a forum. * * * Second, the defendant may properly wish to avoid multiple litigation, or inconsistent relief, or sole responsibility for a liability he shares with another. * * * Third, there is the interest of the outsider whom it would have been desirable to join. * * * Fourth, there remains the interest of the courts and the public in complete, consistent, and efficient settlement of controversies. The Court noted" }, { "docid": "22595123", "title": "", "text": "principle simply does not apply when the district serves as a unit of residence rather than a unit of voting. Dallas County v. Reese, 421 U.S. 477, 95 S.Ct. 1706, 44 L.Ed.2d 312 (1975) (per curiam). See J. Nowak, R. Rotunda & J. Young, Constitutional Law 662 (1978). Unfortunately, such is not the case here. . An appellate court may address joinder issues sua sponte. Provident Tradesmen’s Bank & Trust Co. v. Patterson, 390 U.S. 102, 106-08, 88 S.Ct. 733, 736-37, 19 L.Ed.2d 936 (1968); GTE Sylvania, Inc. v. Consumer Prods. Safety Comm’n, 598 F.2d 790, aff’d on other grounds, 447 U.S. 102, 100 S.Ct. 2051, 64 L.Ed.2d 766 (1980); Haby v. Stanolind Oil & Gas, 225 F.2d 723, 724 (5th Cir.1955). . Rule 19 states in part: (a) Persons to be Joined if Feasible. A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party____ (b) Determination by Court Whenever Joinder not Feasible. If a person as described in subdivision (a)(l)-(2) hereof cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court include: first, to what extent a judgment rendered in the person’s absence might be prejudicial to him or those" }, { "docid": "23386917", "title": "", "text": "102, 100 S.Ct. 2051, 64 L.Ed.2d 766 (1980). We must, however, consider the fact that a judgment binding on the parties has already been reached after extensive litigation. Provident Tradesmens Bank, 390 U.S. at 111; GTE Sylvania, 598 F.2d at 798. Refrigerated has made no showing that failure to join the remaining seventeen Lakes shareholders will prevent complete relief from being granted in this contract action, or that the absentee shareholders’ rights will be prejudiced if not joined. Moreover, Refrigerated has not shown how it or the court will be subject to multiple litigation if the absentee shareholders are not joined. The district court’s order requiring Refrigerated to make payments on the three notes will prevent subsequent litigation, since all Lakes shareholders will receive payment on their note. We are persuaded the factors outlined in Rule 19(a), F.R.Civ.P., do not require that the remaining seventeen shareholders be joined in the present suit. VI. Refrigerated next contends that the district court erred in concluding that plaintiffs Bowes, Millner, and Rodgers did not breach a fiduciary duty by acting as counsel to Refrigerated, the purchaser, while holding a financial interest in Fleetwood, the selling company. Refrigerated argues that the attorneys advanced their own financial interests at the expense of the Kroblin companies, and therefore should be required to disgorge any money paid to them from Refrigerated. Review of this issue is plenary. Universal Minerals, 669 F.2d at 102. Refrigerated suggests three ways in which the Bowes, Millner firm breached its fiduciary duty to Refrigerated. First, although Bowes, Millner advised Allen Krob-lin of its interest in Fleetwood when he retained them in 1976, the firm made no continuing disclosure of the conflicts of interest that developed over the ensuing months; second, Millner drew on confidential information in proposing that Kroblin personally guarantee the ACE transaction; and, third, Rodgers and Millner were intimately involved in the negotiation and drafting of critical documents. A. It is well settled in Pennsylvania that an attorney involved in a transaction with a client owes a duty of good faith and full disclosure. The attorney-client relationship calls for the" }, { "docid": "23194930", "title": "", "text": "186 F.2d 816, 821 (4th Cir. 1951). As noted, the modern function of Rule 17 is to prevent the defendant from being subjected to subsequent suits. In Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 88 S.Ct. 733, 19 L.Ed.2d 936 (1968), the Court stated that one of the primary considerations under Rule 19 in whether to allow a suit to continue where a party cannot be joined is the protection of a defendant from multiple litigation, or inconsistent relief. 390 U.S. at 10, 88 S.Ct. 733. In view of this overlap between Rule 17 and Rule 19, we think the emphasis in a case such as this should be on whether under Rule 19 the action should be allowed to continue without joinder of the absent party. That an absent person who cannot be joined is a real party in interest does not conclude the matter — the court must determine whether, in equity and good conscience, the action should proceed without the person. III. It is clear that a partial subrogee is a person to be joined if feasible under Fed.R.Civ.P. 19(a). United States v. Aetna Casualty & Surety Co., 338 U.S. 366, 381-382, 70 S.Ct. 207, 94 L.Ed. 171 (1949). However, here the partial subrogee, INA, cannot be joined without destroying diversity jurisdiction, and Rule 19 by its own terms exhibits concern that the courts not be deprived of jurisdiction by unnecessary joinder. Fed.R.Civ.P. 19(a). In such a case the court must consider the four factors enumerated in Rule 19(b) to determine whether in equity and good conscience the action should proceed, or should be dismissed, the absent person being regarded as indispensable. “Whether a person is ‘indispensable,’ that is, whether a particular lawsuit must be dismissed in the absence of that person, can only be determined in the context of particular litigation.” Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 118, 88 S.Ct. 733, 742, 19 L.Ed.2d 936 (1968). A review of the four interests which must be considered by the district court in its discretion demonstrates that the court" }, { "docid": "21601276", "title": "", "text": "Trust Co. v. Patterson, 390 U.S. 102, 88 S.Ct. 733, 19 L.Ed.2d 936 (1968). In that case, the Third Circuit had dismissed a diversity action arising from an automobile accident for want of subject matter jurisdiction on the basis that the owner of the automobile, not named as a defendant in the case, was an indispensable party within the meaning of rule 19(b), thus destroying diversity. Provident Tradesmens Bank & Trust Co. v. Lumbermens Mut. Casualty Co., 365 F.2d 802 (3d Cir.1966) (in banc), rev’d sub nom. Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 88 S.Ct. 733, 19 L.Ed.2d 936 (1968). The Supreme Court reversed. The Court noted that “[t]he optimum solution, an adjudication ... that would be binding on all interested persons, was not ‘feasible’ [see the captions of subdivisions (a) and (b) of rule 19], for [the owner of the vehicle] could not be made a defendant without destroying diversity.” 390 U.S. at 108, 88 S.Ct. at 737. The Court then framed and decided the resulting issue as follows: Hence the problem was the one to which Rule 19(b) appears to address itself: in the absence of a person who “should be joined if feasible,” should the court dis miss the action or proceed without him? Since this problem emerged for the first time in the Court of Appeals, there were also two subsidiary questions. First, what was the effect, if any, of the failure of the defendants to raise the matter in the District Court? Second, what was the importance, if any, of the fact that a judgment, binding on the parties although not binding on [the absent defendant], had already been reached after extensive litigation? The three questions prove, on examination, to be interwoven. We conclude, upon consideration of the record and applying the “equity and good conscience” test of Rule 19(b), that the Court of Appeals erred in not allowing the judgment to stand. Id. at 108-09, 88 S.Ct. at 737. The Court went on to emphasize that at the appellate stage of a litigation, successful plaintiffs’ “interest in preserving a" }, { "docid": "23217121", "title": "", "text": "to be joined as an indispensable party. Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 88 S.Ct. 733, 19 L.Ed.2d 936 (1968). “It is settled that failure of the district court to acquire jurisdiction over indispensable parties to an action deprives “the court of jurisdiction to proceed in the matter and render a judgment.” Schuckman v. Rubenstein, 164 F.2d 952, 957 (6 Cir. 1947). In approaching the dispositive question whether Rule 19 required the join-der of Glueck, we begin with the formulation of Shields v. Barrow, 58 U.S. (17 How.) 130, 139, 15 L.Ed. 158 (1854). Indispensable parties were defined as [pjersons who not only have an interest in the controversy, but an interest of such a nature that a final decree cannot be made without either affecting that interest, or leaving the controversy in such a condition that its final termination may be wholly inconsistent with equity and good conscience. As Mr. Justice Harlan declared in Provident Tradesmens Bank & Trust Co. v. Patterson, supra, 390 U.S. 102, 124, 88 S.Ct. 733, 746, 19 L.Ed.2d 936, the generalizations of Shields “are still valid today, and they are consistent with the requirements of Rule 19. * * * Indeed, the * * * Shields definition states, in rather different fashion, the criteria for decision announced in Rule 19(b).” It is essential, however, to bear in mind that the broad statements in Shields “are not a substitute for the analysis required by that Rule.” Id. Fed.R.Civ.Pro. 19, as amended in 1966, provides: parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. * * * (a) Persons to be Joined if Feasible. A person who is subject to service o,f process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated" }, { "docid": "182013", "title": "", "text": "of an issue on trial in the federal action. Both actions could go forward at the same time, with application of res judicata if raised in the later pending action.”). 2. There are no necessary or indispensable parties absent. On a motion under Rule 12(b)(7), the court initially will determine if the absentee should be joined as a party in accordance with the criteria set forth in Rule 19(a). If it decides in the affirmative, ... [and if] the absentee cannot be joined, the court must then determine, by analyzing the factors described in Rule 19(b), whether to proceed without him or to dismiss the action. Federal courts are extremely reluctant to grant motions to dismiss based on non-joinder and, in general, dismissal will be ordered only when the defect cannot be cured and serious prejudice or inefficiency will result. 7 Wright and Miller, Federal Practice and Procedure § 1609 at 83 (1972) (footnotes omitted). See also Provident Tradesmens Bank and Trust Co. v. Patterson, 390 U.S. 102, 118, 88 S.Ct. 733, 742, 19 L.Ed.2d 936 (1968). The Shors are not necessary parties for this' suit. A. F.R.C.P. 19(a): Necessary Parties. Under Rule 19(a), an absentee is a “person [ ] to be joined if feasible” or a “necessary party” if at least one of two elements exist: if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the Court shall order that he be made a party. The Shors are not indispensable parties to plaintiffs’ claim herein. B. F.R.C.P. 19(b): Indispensable Parties. Rule 19(b) provides: (b) DETERMINATION BY COURT WHENEVER JOINDER NOT FEASIBLE. If a person as described in" }, { "docid": "23386916", "title": "", "text": "payments on the Lakes note, we hold that the district court did not err in concluding that these plaintiffs had standing to sue under the Lakes note. Compare Kauffman v. Dreyfus Fund, Inc., 434 F.2d 727, 732 (3d Cir.1970) (shareholder does not have standing where primary injury was inflicted on the corporation and only injury to shareholder was the indirect harm consisting of diminution in value of his corporate shares). Refrigerated argues now for the first time that if Doyle and Ortbring had standing, the district court should have ra-quired joinder of the remaining seventeen Lakes shareholders as indispensable parties, as they all were joint payees on the Lakes note. See Restatement (Second) of Contracts § 298 comment b (1979). The issue of failure to join an indispensable party may be raised for the- first time on appeal. Provident Tradesmens Bank and Trust Co. v. Patterson, 390 U.S. 102, 109, 88 S.Ct. 733, 737, 19 L.Ed.2d 936 (1968); GTE Sylvania, Inc. v. Consumer Product Safety Commission, 598 F.2d 790, 798 (3d Cir.1979), aff'd, 447 U.S. 102, 100 S.Ct. 2051, 64 L.Ed.2d 766 (1980). We must, however, consider the fact that a judgment binding on the parties has already been reached after extensive litigation. Provident Tradesmens Bank, 390 U.S. at 111; GTE Sylvania, 598 F.2d at 798. Refrigerated has made no showing that failure to join the remaining seventeen Lakes shareholders will prevent complete relief from being granted in this contract action, or that the absentee shareholders’ rights will be prejudiced if not joined. Moreover, Refrigerated has not shown how it or the court will be subject to multiple litigation if the absentee shareholders are not joined. The district court’s order requiring Refrigerated to make payments on the three notes will prevent subsequent litigation, since all Lakes shareholders will receive payment on their note. We are persuaded the factors outlined in Rule 19(a), F.R.Civ.P., do not require that the remaining seventeen shareholders be joined in the present suit. VI. Refrigerated next contends that the district court erred in concluding that plaintiffs Bowes, Millner, and Rodgers did not breach a fiduciary duty" }, { "docid": "16260193", "title": "", "text": "estopped from claiming a defense based on that breach. If the Moreaus cannot claim shareholder status, the Oppenheims, who never fulfilled their part of the agreement as to contributive share either, can hardly claim this status. It is a well-established rule of equity that one who by his conduct has induced another to act in a particular manner should not be permitted to adopt an inconsistent position and thereby cause loss or injury to the other. IV. Indispensable parties. The Oppenheims claim error in the district court’s failure to require the joinder of Florence and Sylvie Moreau-Sipiere. The Oppenheims claim that these two individuals were owners of two of the horses and were indispensable parties to Alduro-Raynes’ declaratory action for title to the horses. The district court below denied the Oppenheims’ motion to dismiss for lack of indispensable parties. Assuming that the Oppenheims are correct and that these two individuals do have an ownership interest in the horses, the appellants’ reliance on Rule 19, Fed.R. Civ.P., is misplaced. Under the flexible federal joinder rules, “pragmatic concerns rather than conclusory labels now control.” Wright & Miller, Federal Practice & Procedure: Civil § 1612 (1972). See also Provident Tradesmens Bank & Trust Co. v. Pat terson, 390 U.S. 102, 118-19, 88 S.Ct. 733, 742-743, 19 L.Ed.2d 936 (1968). Cases under Rule 19 stress the equities of a particular case, not conelusory classifications of property rights. Rule 19 permits courts to retain jurisdiction “where the interests of substantial justice require it,” Rippey v. Denver United States National Bank, 260 F.Supp. 704, 708 (D.Colo.1966), and this means, as the rule itself states, that an interest in disputed property does not make a party indispensable unless in his absence relief is impossible or the absent person is likely to be prejudiced or his absence will lead to multiple litigation. See, e. g., Hansen v. Peoples Bank of Bloomington, 594 F.2d 1149 (7th Cir. 1979); Wright & Miller, Federal Practice & Procedure : Civil § 1609 (1972). The Oppenheims do not and presumably cannot argue that the absentees were prejudiced by the judgment actually rendered, and" }, { "docid": "22595122", "title": "", "text": "every U.S. congressional district in Florida regardless of the number of registered Republicans in the district. . See supra note 7. . Florida has not so provided at any time relevant to this appeal. In Florida, selection of delegates to the national nominating conventions of political parties is governed by Fla. Stat.Ann. § 103.101 (1982 & Supp.1983). The provisions touching most closely on this issue are those in § 103.101(8) which permit delegates to be allotted either on a winner-take-all or a proportional basis. This statute does not mandate any statewide election. In fact, this law assumes delegate selection will occur at both the statewide and congressional district levels, as is now the practice. . In other words, the delegate selection process would occur on a statewide level, but three delegates would still have to come from each congressional district. If National Rule 31®, which allows state-wide election of the three delegates residing in each congressional district, were applicable, there would be no constitutional issue at all in this case. The one person, one vote principle simply does not apply when the district serves as a unit of residence rather than a unit of voting. Dallas County v. Reese, 421 U.S. 477, 95 S.Ct. 1706, 44 L.Ed.2d 312 (1975) (per curiam). See J. Nowak, R. Rotunda & J. Young, Constitutional Law 662 (1978). Unfortunately, such is not the case here. . An appellate court may address joinder issues sua sponte. Provident Tradesmen’s Bank & Trust Co. v. Patterson, 390 U.S. 102, 106-08, 88 S.Ct. 733, 736-37, 19 L.Ed.2d 936 (1968); GTE Sylvania, Inc. v. Consumer Prods. Safety Comm’n, 598 F.2d 790, aff’d on other grounds, 447 U.S. 102, 100 S.Ct. 2051, 64 L.Ed.2d 766 (1980); Haby v. Stanolind Oil & Gas, 225 F.2d 723, 724 (5th Cir.1955). . Rule 19 states in part: (a) Persons to be Joined if Feasible. A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence" }, { "docid": "11820814", "title": "", "text": "suit was dismissed without prejudice for failure to allege the citizenship of the individual defendants. Challenge filed an amended complaint mak ing the requisite citizenship allegations, but eliminating as a party defendant Lowell Kramer, whose joinder would have destroyed diversity of citizenship and divested the court of its jurisdiction under 28 U.S.C. § 1332. The appellees then filed a motion to dismiss, alleging in part that Lowell was an indispensable party under Rule 19. II. The Indispensability of Lowell Kramer Both parties have vigorously argued whether the breach of fiduciary duty alleged in this case is a tort or a breach of contract under Florida law. We decline to reach this issue, however, because Rule 19 was enacted “to eliminate formalistic labels that restricted many courts from an examination of the practical factors of individual cases.” Smith v. State Farm Fire & Casualty Co., 633 F.2d 401, 405 (5th Cir. 1980) (quoting 7 Wright and Miller, Federal Practice & Procedure: Civil § 1601 (1972)). See Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 118, 88 S.Ct. 733, 742, 19 L.Ed.2d 936 (1967); Haas v. Jefferson National Bank, 442 F.2d 394, 398 (1971). Moreover, regardless of the proper characterization of the injury to Challenge, we conclude that Lowell Kramer is not an indispensable party under Rule 19. Rule 19 states a two-part test for determining whether a party is indispensable. First, the court must ascertain under the standards of Rule 19(a) whether the person in question is one who should be joined if feasible. If the person should be joined but cannot be (because, for example, joinder would divest the court of jurisdiction) then the court must inquire whether, applying the factors enumerated in Rule 19(b), the litigation may continue. See, e.g., Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 88 S.Ct. 733, 19 L.Ed.2d 936 (1967). Our first step in analyzing the ease at bar, therefore, is to decide whether Lowell Kramer is a person who should be joined if feasible under Rule 19(a). In making this decision, “pragmatic concerns, especially the effect on" }, { "docid": "23386915", "title": "", "text": "Company, the conduct of Refrigerated and the Lakes shareholders plainly evidence a contractual relationship between these parties. By agreeing to purchase Fleetwood, Refrigerated assumed the Lakes note. Pri- or to signing the purchase agreement, Allen Kroblin negotiated a payment plan for the Lakes note directly with the Lakes shareholders. In a letter to Kroblin, Doyle laid out a payment schedule on the note that was approved by the Lakes shareholders. App. at 626. This schedule included payments both before and after the purchase, and gave each shareholder an option as to repayment ten years after the purchase. Kroblin agreed to the terms of this letter. Id. at 627. Indeed, Kroblin recognized he was dealing with the Lakes shareholders as individuals when he stated in an ICC application that the Lakes note was “owed by A.C.E. to the individual shareholders of Great Lakes Express Co.” and that the Lakes note had been “assigned to the shareholders of Great Lakes Express Co.” Id. at 672, 666. Since Refrigerated directly injured the Lakes shareholders by refusing to continue payments on the Lakes note, we hold that the district court did not err in concluding that these plaintiffs had standing to sue under the Lakes note. Compare Kauffman v. Dreyfus Fund, Inc., 434 F.2d 727, 732 (3d Cir.1970) (shareholder does not have standing where primary injury was inflicted on the corporation and only injury to shareholder was the indirect harm consisting of diminution in value of his corporate shares). Refrigerated argues now for the first time that if Doyle and Ortbring had standing, the district court should have ra-quired joinder of the remaining seventeen Lakes shareholders as indispensable parties, as they all were joint payees on the Lakes note. See Restatement (Second) of Contracts § 298 comment b (1979). The issue of failure to join an indispensable party may be raised for the- first time on appeal. Provident Tradesmens Bank and Trust Co. v. Patterson, 390 U.S. 102, 109, 88 S.Ct. 733, 737, 19 L.Ed.2d 936 (1968); GTE Sylvania, Inc. v. Consumer Product Safety Commission, 598 F.2d 790, 798 (3d Cir.1979), aff'd, 447 U.S." }, { "docid": "18590021", "title": "", "text": "otherwise inconsistent liability.” Fed.R. Civ.P. 19 advisory committee note. Viewed practically, there is a substantial risk that Samuel might face double liability as a result of this lawsuit. Samuel may, if the federal litigation is allowed to proceed, be forced to pay twice for the same alleged misconduct causing the same harm. Except for one claim in the federal suit, all Carol’s individual harms stem from her stock ownership. If, therefore, the state court allows recovery in the derivative action, Carol will receive the benefit of damages awarded the corporation and, if the federal suit is allowed to proceed, Carol may be awarded damages individually for the same harm already compensated by the derivative recovery. In such an event, Samuel will be liable for both judgments. We therefore hold that Lillian and Susan are persons to be joined if feasible under Rule 19(a). B. Once we have determined that Lillian and Susan are persons to be joined if feasible and that their joinder would destroy diversity jurisdiction, we must, using Rule 19(b), “determine whether in equity and good conscience the action should proceed among the parties before [us], or should be dismissed, the absent person[s] being thus regarded as indispensable.” Thus, we must assess the factors set out in Rule 19(b), seeking to avoid manifest injustice while taking full cognizance of the practicalities involved. In Provident Tradesmen’s Bank & Trust Co. v. Patterson, 390 U.S. 102, 109-11, 88 S.Ct. 733, 737-38, 19 L.Ed.2d 936 (1968), the Supreme Court has stated that the factors enumerated in Rule 19(b) may be delineated as the interests that affect four categories of persons: the plaintiff, the defendant, the absentees and the public. First to be considered is the plaintiff’s interest in a federal forum, second, the defendant’s interest in avoiding “multiple litigation, or inconsistent relief, or sole responsibility for a liability he shares with another,” third, the absentees’ interest in avoiding prejudice from the proceeding, and fourth, the interest of the courts and the public in complete, consistent, and efficient settlement of controversies. Id. Analyzing these interests in this case, Carol’s interest in the" }, { "docid": "16866744", "title": "", "text": "be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party. If he should join as a plaintiff but refuses to do so, he may be made a defendant, or, in a proper case, an involuntary plaintiff. If the joined party objects to venue and his joinder would render the venue of the action improper, he shall be dismissed from the action. The question of whether or not a party is indispensable is to be determined by the court on a case by case basis. See, Provident Tradesmen’s Bank and Trust Co. v. Patterson, 390 U.S. 102, 88 S.Ct. 733, 19 L.Ed.2d 936 (1968); Schutten v. Shell Oil Co., 421 F.2d 869 (5th Cir.1970). The rule is one that must be given practical application and not be used to direct attention exclusively to the technical or abstract character of the rights of the parties. Fed.R.Civ.P. 19 advisory committee note. In determining whether a party is indispensable the court must consider whether the action can proceed without him. Provident Tradesmen’s Bank and Trust Co. v. Patterson, 390 U.S. 102, 120, 88 S.Ct. 733, 743, 19 L.Ed.2d 936 (1968). Moreover, for purposes of defendants’ Rule 12(b)(7) motion to dismiss for failure to join parties needed for just adjudication, the well-pleaded factual allegations contained in the amended complaint are accepted as true. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); McCann v. Pierson, 78 F.R.D. 347 (E.D.Pa.1978). Initially, we must determine if the oil venture shareholders and the Belleroche stockholders fit" }, { "docid": "16866745", "title": "", "text": "court on a case by case basis. See, Provident Tradesmen’s Bank and Trust Co. v. Patterson, 390 U.S. 102, 88 S.Ct. 733, 19 L.Ed.2d 936 (1968); Schutten v. Shell Oil Co., 421 F.2d 869 (5th Cir.1970). The rule is one that must be given practical application and not be used to direct attention exclusively to the technical or abstract character of the rights of the parties. Fed.R.Civ.P. 19 advisory committee note. In determining whether a party is indispensable the court must consider whether the action can proceed without him. Provident Tradesmen’s Bank and Trust Co. v. Patterson, 390 U.S. 102, 120, 88 S.Ct. 733, 743, 19 L.Ed.2d 936 (1968). Moreover, for purposes of defendants’ Rule 12(b)(7) motion to dismiss for failure to join parties needed for just adjudication, the well-pleaded factual allegations contained in the amended complaint are accepted as true. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); McCann v. Pierson, 78 F.R.D. 347 (E.D.Pa.1978). Initially, we must determine if the oil venture shareholders and the Belleroche stockholders fit the description “persons to be joined if feasible” under Rule 19(a) based on the applicable criteria contained therein. For the reasons which follow we find they do not and believe that full relief can be accorded those already parties to the lawsuit as required by Rule 19(a)(1). In considering the Belleroche stockholders, it is unclear from the facts presented that they have any interest in the oil ventures or are involved in any way with the agreement between Madison and the oil venture shareholders. The plaintiffs have challenged the alleged improper issuance by Madison of its shares in exchange for interests in the oil ventures. It appears the Belleroche stockholders acquired their Madison stock in a separate transaction for different consideration. We find no reason to consider the Belleroche stockholders indispensable to the plaintiff’s cause of action. The fact that the Belleroche stockholders own stock in a corporation does not make them indispensable parties to a lawsuit challenging an unrelated stock issue. Accordingly, it has not been demonstrated that the Belleroche stockholders have an interest" } ]

[ { "docid": "8935178", "title": "", "text": "aided and abetted Amaranth’s manipulation of natural gas futures through J.P. Futures’s services as Amaranth’s futures commission merchant and clearing broker. The district court (Scheindlin, J.), in October 6, 2008 and April 27, 2009 orders, concluded that both Plaintiffs-Appellants’ complaint and amended complaint failed to state claims against J.P. Morgan. Plaintiffs-Appellants argue on appeal that the district court did not apply the correct standard for evaluating the sufficiency of their amended complaint and likewise failed to recognize the amended complaint’s well-pleaded allegations that J.P. Futures aided and abetted Amaranth’s manipulation within the meaning of Section 22 of the CEA, 7 U.S.C. § 25(a). We conclude that the district court did not err in concluding that Plaintiffs-Appellants’ amended complaint failed to state a claim against J.P. Futures. Because we conclude that this is so even under the pleading standards that Plaintiffs-Appellants argue should apply, we do not decide whether the district court’s application of a more stringent standard was error. BACKGROUND 1. Commodity Futures Trading The CEA prohibits manipulation of the price of any commodity or commodity future. See 7 U.S.C. §§ 9(1), 13(a)(2). While the CEA itself does not define the term, a court will find manipulation where “(1) Defendants possessed an ability to influence market prices; (2) an artificial price existed; (3) Defendants caused the artificial prices; and (4) Defendants specifically intended to cause the artificial price.” Hershey v. Energy Transfer Partners, L.P., 610 F.3d 239, 247 (5th Cir. 2010). This case is about the alleged manipulation of natural gas futures traded on the New York Mercantile Exchange (“NYMEX”). The alleged manipulative scheme, however, also involved a second standardized energy contract: natural gas swaps traded on the Intercontinental Exchange (“ICE”), an electronic exchange based in Atlanta, Georgia. A full understanding of Plaintiffs-Appellants’ allegations requires background on both of these financial instruments and their respective exchanges. A. NYMEX Natural Gas Futures NYMEX is a futures and options exchange based in New York City. N.Y. Mercantile Exch. v. IntercontinentalExchange, Inc., 497 F.3d 109, 110 (2d Cir.2007). We have previously described the basic features of commodity futures trading: A commodities futures contract" } ]

[ { "docid": "12308697", "title": "", "text": "prices; and (4) Defendants specifically intended to cause the artificial price.” In re Amaranth Nat. Gas Commodities Litig., 730 F.3d at 173 (quoting Hershey v. Energy Transfer Partners, L.P., 610 F.3d 239, 247 (5th Cir. 2010)). Because Plaintiffs’ allegations relative to intent, artificiality, and causation are interrelated, a separate discussion of each element is something of an artificial exercise. See, e.g., Wilson, 27 F.Supp.3d at 535 (noting how the elements of CEA manipulation claims occasionally overlap, such that they may be factually and legally interdependent (citations omitted)). In the interest of clarity, however, the Court will address each element in turn. With respect to the first element, Defendants do not dispute that Plaintiffs have adequately pleaded that each of the Fixing Members possessed the ability to manipulate the silver futures market by virtue of its role as a market maker and participant in the Fixing auction. With regard to artificiality, viewing the allegations in the light most favorable to Plaintiffs, the Court finds that Plaintiffs have adequately pleaded the existence of artificial prices around the Silver Fixing. “An artificial price is a price that ‘does not reflect basic forces of supply and demand.’ ” Parnon, 875 F.Supp.2d at 246 (quoting In re Soybean Futures Litig., 892 F.Supp. 1025, 1044 (N.D. Ill. 1995)). “When determining if artificial prices exist, a court may consider the underlying commodity’s normal market forces, historical prices, supply and demand factors, price spreads, and also the cash market for the commodity at issue.” In re Commodity Exch., Inc., Silver Futures & Options Trading Litig. (Silver I), No. 11-md-2213 (RPP), 2012 WL 6700236, at *12 (S.D.N.Y. Dec. 21, 2012) (citing In re Sumitomo Copper Litig., 182 F.R.D. 85, 90 n.6 (S.D.N.Y. 1998)). Plaintiffs allege that a dysfunction in silver pricing dynamics is reflected in a 7-year pattern of sharp downward price swings accompanied by a spike in highly predictive futures trading and price volatility occurring frequently (and uniquely) around the Silver Fixing. SAC ¶¶ 120-24 & Figs. 1-3, 140-54 & Figs. 14-20 The Fixing Members counter that this pattern is consistent with “the forces of supply and demand" }, { "docid": "4829540", "title": "", "text": "of an agreement among Defendants. c. Antitrust Standing Given the above bases for dismissal of Plaintiffs’ antitrust claim, this Court declines to address the parties’ arguments regarding antitrust standing at this time. V. CEA Claim The CEA prohibits any person from “manipulatfing] or attempt[ing] to manipulate the price of any commodity....” 7 U.S.C. § 13. While the term “manipulate” is undefined, “[t]he [CFTC] and the courts have developed the following four-factor test to determine whether a [defendant] has manipulated prices: (1) [t]he [defendant] had the ability to influence market prices; (2) [t]he [defendant] specifically intended to do so; (3) [t]he ‘artificial’ prices existed; and (4) [t]he [defendant] caused the artificial prices.” In the Matter of DiPlacido, CFTC No. 01-23, 2008 WL 4831204, at *25 (C.F.T.C. Nov. 5, 2008); accord In re Amaranth Natural Gas Commodities Litig., 587 F.Supp.2d 513, 530 (S.D.N.Y.2008) (describing the elements of a “market manipulation” claim); see also Frey v. Commodity Futures Trading Comm’n, 931 F.2d 1171, 1175 (7th Cir.1991) (adopting the elements promulgated by the CFTC). Defendants argue that the Complaint fails to adequately plead facts supporting each element of a manipulation claim. a. Scienter “[I]n order to prove the intent element of a manipulation” claim, a defendant must have acted “with the purpose ... of causing ... a price or price trend in the [particular] market that did not reflect the legitimate forces of supply and demand .... ” Indiana Farm Bureau Cooperative Ass’n, Inc., CFTC No. 75-14, 1982 WL 30249, at *7 (CFTC Dec. 17, 1982); accord U.S. Commodity Futures Trading Comm’n v. Amaranth Advisors, L.L.C., 554 F.Supp.2d 523, 532 (S.D.N.Y.2008). According to Plaintiffs, the Complaint alleges the intent to manipulate prices because it “plead[s] that the CFTC Order both finds and concludes that Defendant Pia had specific intent to manipulate.” (Pis. Opp’n at 17.) Similarly, Plaintiffs argue that this Court should accord Chevron deference to the CFTC’s findings concerning the intent element of a manipulation claim. Because this Court has stricken from the Complaint all references to the CFTC Order, these arguments fail. The only remaining allegations suggesting an intent to manipulate prices" }, { "docid": "15352607", "title": "", "text": "wheat, we anticipate the futures curve will begin to flatten, reducing the profitability of wheat storage, thereby reducing the commercial wheat basis to Kraft.” Id. This directly supports Ploss’s allegation—that as a result of obtaining a large long December 2011 futures position, Kraft intended that the Toledo cash market would be left with a wheat surplus. Rather than storing the extra wheat, the Toledo market reduced the cash wheat prices, and Kraft took advantage. With all this, Ploss has adequately pled scienter and all of the elements of a manipulation claim under Section 6(c)(1). The Court denies Kraft’s motion to dismiss this count. 3. Section 9(a)(2) Manipulation Count One is also a claim for manipulation based on the long wheat futures scheme detailed above, but under Section 9(a)(2) of the CEA. Remember, Section 9(a)(2) makes it unlawful for any trader to “manipulate or attempt to manipulate the price of any commodity in interstate commerce, or for future delivery on or subject to the rules of any registered entity ....” 7 U.S.C. § 13(a)(2). The related regulation includes the same prohibition. 17 C.F.R. § 180.2 (“It shall be unlawful for any person, directly or indirectly, to manipulate or attempt to manipulate the price of any swap, or of any commodity in interstate commerce, or for future delivery on or subject to the rules of any registered entity,”). Because the new Dodd-Frank provisions were not intended to affect Section 9(a)(2), the four-part test that courts have adopted for Section 9(a)(2) still stands. 7 C.F.R. § 180.1(c) (“Nothing in this section shall affect, or be construed to affect, the applicability of Commodity Exchange Act section 9(a)(2).”). That test requires a plaintiff to allege four elements: “(1) the defendant] possessed the ability to influence prices; (2) an artificial price existed; (3) the defendant caused the artificial price; and (4) the defendant specifically intended to cause the artificial price.” In re Dairy Farmers of Am., Inc. Cheese Antitrust Litig., 801 F.3d 758, 764-65 (7th Cir.2015). The Court concludes that Ploss has alleged each of these elements. These four elements overlap some, but the Court will" }, { "docid": "4829541", "title": "", "text": "fails to adequately plead facts supporting each element of a manipulation claim. a. Scienter “[I]n order to prove the intent element of a manipulation” claim, a defendant must have acted “with the purpose ... of causing ... a price or price trend in the [particular] market that did not reflect the legitimate forces of supply and demand .... ” Indiana Farm Bureau Cooperative Ass’n, Inc., CFTC No. 75-14, 1982 WL 30249, at *7 (CFTC Dec. 17, 1982); accord U.S. Commodity Futures Trading Comm’n v. Amaranth Advisors, L.L.C., 554 F.Supp.2d 523, 532 (S.D.N.Y.2008). According to Plaintiffs, the Complaint alleges the intent to manipulate prices because it “plead[s] that the CFTC Order both finds and concludes that Defendant Pia had specific intent to manipulate.” (Pis. Opp’n at 17.) Similarly, Plaintiffs argue that this Court should accord Chevron deference to the CFTC’s findings concerning the intent element of a manipulation claim. Because this Court has stricken from the Complaint all references to the CFTC Order, these arguments fail. The only remaining allegations suggesting an intent to manipulate prices concern the deletion of emails by certain of the Moore Defendants. However, this Court cannot conclude that such allegations alone give rise to an inference of manipulative intent. Accordingly, the Complaint fails to allege that any of the Defendants acted with requisite intent to manipulate the prices of platinum and palladium futures contracts. b. Remaining Elements of the CEA Claim For the reasons stated above, this Court declines to address the parties’ arguments regarding price artificiality, causation, and the ability to affect prices. This Court also declines to address Defendants’ void for vagueness challenge to § 25(a)(1)(D) of the CEA because it was not squarely presented to the Court. (See Letter from the United States Department of Justice to the Court dated July 8, 2011 at 1 (declining to intervene because “it does not appear that there is a direct challenge to the CEA’s constitutionality at this juncture in the proceedings”).) c. Aiding and Abetting Liability Section 25 of the CEA establishes liability for any person who aids and abets a violation of the CEA." }, { "docid": "10154689", "title": "", "text": "Instead, the court pointed out that “[u]n-der the CEA, actionable manipulation must be directed at ‘the price of the commodity underlying such contract.’” Id. (quoting 7 U.S.C. § 25(a)(1)(D)). Thus, the court concluded, the plaintiffs “must allege that Defendants specifically intended, to manipulate the underlying of that contract,” in other words, “the spot price at the Henry Hub.” Id. A plain reading of the CEA requires the plaintiffs to allege intentional'manipulation of the commodity underlying the individual contracts for which the plaintiffs claim damages. The plaintiffs have failed to do so. As the Fifth Circuit Court of Appeals plainly put it: “[I]ntentionality and inevitability are not legally equivalent.” Id. at 248. The CAC does not allege facts that would allow a plausible inference that the defendants acted “with the purpose or conscious object of’ manipulating prices at the Henry Hub. Silver Futures-, 560 Fed.Appx. at 87. The clear purpose of the defendants’ allegedly manipulative trading was to affect index prices for physical natural gas at the individual regional hubs in ways “that were intended to benefit TGPNA’s related financial positions,” CAC ¶ 73. . The plaintiffs argue, relying on LIBOR H, that they have adequately pleaded intent by alleging that the defendants acted “with reckless disregard for the potential impact of their trading on natural gas prices” generally, such that their manipulation was not only directed at the [regional] hubs, but also at the Henry Hub.” CAC ¶251. íhose allegations are insufficient and implausible. The court in LIBOR II concluded that the plaintiffs had adequately pleaded scienter through “conscious misbehavior or recklessness” because they had adequately pleaded “that the ‘danger’ of submitting artificial LIBOR quotes—’the manipulation of the price of Eurodollar futures contracts—was either known to the defendant banks or ,so obvious that théy must have been aware of it.” 27 F.Supp.3d at 469, 470. In other words, the plaintiffs plausibly alleged that the defendants knew or recklessly disregarded that submitting false LIBOR quotes would result in manipulation of prices of the Eurodollar futures contracts purchased by the, plaintiffs, which are priced with reference to LIBOR. Id. at 470. As" }, { "docid": "12308696", "title": "", "text": "Shaar Fund, Ltd., 493 F.3d 87, 102 (2d Cir. 2007), where the complaint must simply specify “what manipulative acts were performed, which defendants performed them, when the manipulative acts were performed, and what effect the scheme had on the market for the securities at issue.” In re Nat. Gas Commodity Litig., 358 F.Supp.2d 336, 343 (S.D.N.Y. 2005) (citation and internal quotations omitted); see also In re Amaranth Nat. Gas Commodities Litig. (Amaranth I), 587 F.Supp.2d 513, 535 (S.D.N.Y. 2008). While scienter “may be alleged generally,” Fed. R. Civ. P. 9(b), Plaintiffs must allege facts that “give rise to a strong inference of scienter.” In re Amaranth Nat. Gas Commodities Litig. (Amaranth II), 612 F.Supp.2d 376, 384 (S.D.N.Y. 2009) (quoting Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322-23, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007) (emphasis in Amaranth II)). To establish a claim for price manipulation under the CEA, Plaintiffs must allege that: “(1) Defendants possessed an ability to influence market prices; (2) an artificial price existed; (3) Defendants caused the artificial prices; and (4) Defendants specifically intended to cause the artificial price.” In re Amaranth Nat. Gas Commodities Litig., 730 F.3d at 173 (quoting Hershey v. Energy Transfer Partners, L.P., 610 F.3d 239, 247 (5th Cir. 2010)). Because Plaintiffs’ allegations relative to intent, artificiality, and causation are interrelated, a separate discussion of each element is something of an artificial exercise. See, e.g., Wilson, 27 F.Supp.3d at 535 (noting how the elements of CEA manipulation claims occasionally overlap, such that they may be factually and legally interdependent (citations omitted)). In the interest of clarity, however, the Court will address each element in turn. With respect to the first element, Defendants do not dispute that Plaintiffs have adequately pleaded that each of the Fixing Members possessed the ability to manipulate the silver futures market by virtue of its role as a market maker and participant in the Fixing auction. With regard to artificiality, viewing the allegations in the light most favorable to Plaintiffs, the Court finds that Plaintiffs have adequately pleaded the existence of artificial prices around the" }, { "docid": "12291610", "title": "", "text": "730 F.3d at 173 (quoting Hershey v. Energy Transfer Partners, L.P., 610 F.3d 239, 247 (5th Cir. 2010)). Because Plaintiffs’ allegations relative to intent, artificiality, and causation are interrelated, a separate discussion of each element is something of an artificial exer cise. See, e.g., Wilson, 27 F.Supp.3d at 535 (noting how the elements of CEA manipulation claims occasionally overlap, such that they may be factually and legally interdependent (citations omitted)). In the interest of clarity, however, the Court will address each element in turn. With respect to the first element, the Fixing Banks’ only basis for disputing that they possessed the ability to manipulate the gold futures market is that, although Plaintiffs allege manipulation by collective action, they fail plausibly to allege the existence of a conspiracy. Defs.’ Mem. at 45 (citing Apex Oil Co. v. DiMauro, 822 F.2d 246, 261 (2d Cir. 1987)). Because the Court finds, for the reasons stated supra, that Plaintiffs have plausibly alleged a conspiracy, and because the Fixing Banks were able to manipulate the gold futures market by virtue of their respective roles as market makers and participants in the Fixing auction, this element has been satisfied. With regard to artificiality, viewing the allegations in the light most favorable to Plaintiffs, the Court finds that Plaintiffs have adequately pled the existence of artificial prices around the PM Fixing. “An artificial price is a price that ‘does not reflect basic forces of supply and demand.’ ” Parnon, 875 F.Supp.2d at 246 (quoting In re Soybean Futures Litig., 892 F.Supp. 1025, 1044 (N.D. Ill. 1995)). “When determining if artificial prices exist, a court may consider the underlying commodity’s normal market forces, historical prices, supply and demand factors, price spreads, and also the cash market for the commodity at issue.” In re Commodity Exch., Inc., Silver Futures & Options Trading Litig. (Silver I), No.11-md-2213 (RPP), 2012 WL 6700236, at *12 (S.D.N.Y. Dec. 21, 2012) (citing In re Sumitomo Copper Litig., 182 F.R.D. 85, 90 n.6 (S.D.N.Y. 1998)). Here, while it is possible that the alleged seven-year pattern of downward price movement around the PM Fixing could be" }, { "docid": "4829539", "title": "", "text": "(1) an agreement or concerted action among the defendants in the (2) unreasonable restraint of trade.” In re Currency Conversion Fee Antitrust Litig., 773 F.Supp.2d 351, 366 (S.D.N.Y.2011). “While a plaintiff is not required to show the existence of a written agreement to prove a § 1 claim, ‘it is generally believed that an express, manifested agreement involving actual, verbalized communication, must be proved in order for a price-fixing conspiracy to be actionable under the Sherman Act.’ ” In re Currency Conversion, 773 F.Supp.2d at 366 (quoting In re High Fructose Com Syrup Antitrust Litig., 295 F.3d 651, 654 (7th Cir.2002)). Here, Plaintiffs’ central argument is that the agreement among Defendants to manipulate the prices of platinum and palladium futures contracts is “[ejvideneed [b]y [t]he CFTC’s [f]indings.” (Pis.’ Br. at 33.) Indeed, the allegations potentially giving rise to an inference of an agreement quote extensively from the CFTC Order. (See Compl. ¶¶ 79-91.) Because those allegations have been stricken, Plaintiffs’ antitrust claim is dismissed for the independent reason that it fails to allege the existence of an agreement among Defendants. c. Antitrust Standing Given the above bases for dismissal of Plaintiffs’ antitrust claim, this Court declines to address the parties’ arguments regarding antitrust standing at this time. V. CEA Claim The CEA prohibits any person from “manipulatfing] or attempt[ing] to manipulate the price of any commodity....” 7 U.S.C. § 13. While the term “manipulate” is undefined, “[t]he [CFTC] and the courts have developed the following four-factor test to determine whether a [defendant] has manipulated prices: (1) [t]he [defendant] had the ability to influence market prices; (2) [t]he [defendant] specifically intended to do so; (3) [t]he ‘artificial’ prices existed; and (4) [t]he [defendant] caused the artificial prices.” In the Matter of DiPlacido, CFTC No. 01-23, 2008 WL 4831204, at *25 (C.F.T.C. Nov. 5, 2008); accord In re Amaranth Natural Gas Commodities Litig., 587 F.Supp.2d 513, 530 (S.D.N.Y.2008) (describing the elements of a “market manipulation” claim); see also Frey v. Commodity Futures Trading Comm’n, 931 F.2d 1171, 1175 (7th Cir.1991) (adopting the elements promulgated by the CFTC). Defendants argue that the Complaint" }, { "docid": "12291609", "title": "", "text": "acts were performed, which defendants performed them, when the manipulative acts were performed, and what effect the scheme had on the market for the securities at issue.” In re Nat. Gas Commodity Litig., 358 F.Supp.2d 336, 343 (S.D.N.Y. 2005) (citation and internal quotations omitted); see also In re Amaranth Nat. Gas Commodities Litig. (Amaranth I), 587 F.Supp.2d 513, 535 (S.D.N.Y. 2008). While scienter “may be alleged generally,” Fed. R. Civ. P. 9(b), Plaintiffs must allege facts that “give rise to a strong inference of scienter.” In re Amaranth Nat. Gas Commodities Litig. (Amaranth II), 612 F.Supp.2d 376, 384 (S.D.N.Y. 2009) (quoting Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322-23, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007) (emphasis in Amaranth II)). To establish a claim for price manipulation under the CEA, Plaintiffs must allege that: “(1) Defendants possessed an ability to influence market prices; (2) an artificial price existed; (3) Defendants caused the artificial prices; and (4) Defendants specifically intended to cause the artificial price.” In re Amaranth Nat. Gas Commodities Litig., 730 F.3d at 173 (quoting Hershey v. Energy Transfer Partners, L.P., 610 F.3d 239, 247 (5th Cir. 2010)). Because Plaintiffs’ allegations relative to intent, artificiality, and causation are interrelated, a separate discussion of each element is something of an artificial exer cise. See, e.g., Wilson, 27 F.Supp.3d at 535 (noting how the elements of CEA manipulation claims occasionally overlap, such that they may be factually and legally interdependent (citations omitted)). In the interest of clarity, however, the Court will address each element in turn. With respect to the first element, the Fixing Banks’ only basis for disputing that they possessed the ability to manipulate the gold futures market is that, although Plaintiffs allege manipulation by collective action, they fail plausibly to allege the existence of a conspiracy. Defs.’ Mem. at 45 (citing Apex Oil Co. v. DiMauro, 822 F.2d 246, 261 (2d Cir. 1987)). Because the Court finds, for the reasons stated supra, that Plaintiffs have plausibly alleged a conspiracy, and because the Fixing Banks were able to manipulate the gold futures market by virtue" }, { "docid": "10154685", "title": "", "text": "See LIBOR I, 962 F.Supp.2d at 620-21 (plaintiffs failed plausibly to allege economic injury where they failed to identify specific financial positions that lost value “despite the fact that plaintiffs indisputably have access to their own Eurodollar futures contract trading records”); cf. ForEx II, 2016 WL 5108131, at *20 (concluding that “because Plaintiffs lack information to identify the specific transactions on which they were injured, they need not plead them in order to state a CEA claim”). The failure to include any specific transactions is fatal'here because the alleged manipulation was “varying in direction” compared to prices' at Henry Hub. In re LIBOR-Based Fin. Instruments Antitrust Litig. (“LIBOR II”), 27 F.Supp.3d 447, 461 (S.D.N.Y. 2014). Thus, “there may be some days when plaintiffs were actually helped, rather than harmed, by the alleged artificiality, depending on their.position in the market.” Id. Thus, if Henry Hub (and thus NYMEX) prices were allegedly “being manipulated in different directions on different days and plaintiffs fail to provide details of their own positions in the market,” their alleged damages are “merely ‘conceivable’—and thus insufficiently pled.” LIBOR II, 27 F.Supp.3d at 461 (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). The plaintiffs have therefore failed to allege plausibly that they have suffered “actual damages,” and their claims in Counts One and Two of the CAC must be dismissed. LIBOR I, 962 F.Supp.2d at 620 (quoting 7 U.S.C. § 25(a)(1)). Moreover, because the plaintiffs failed to state a claim under the CEA in Counts One and Two of the CAC, their claims for aiding and abetting and principal-agent liability, Counts Three and Four, also fail. See 7 U.S.C. § 2(a)(1)(B); In re Platinum and Palladium Commodities Litig., 828 F.Supp.2d 588, 599 (S.D.N.Y. 2011). In sum, Counts One through Four must be dismissed because the plaintiffs have not plausibly alleged actual damages and thus cannot state a claim for manipulation under the CEA. B. The CEA claims must also be dismissed because the CAC fails to allege plausibly that TGPNA “specifically intended to cause the artificial price” of physical or financial instruments purchased by the plaintiffs. Amaranth" }, { "docid": "10154675", "title": "", "text": "560 Fed.Appx. 84, 86 (2d Cir. 2014) (summary order) (quoting 7 U.S.C. § 13(a)(2)). “While the CEA itself does not define the term, a court will find manipulation where (1) Defendants possessed an ability to influence market prices; (2) an artificial price existed; (3) Defendants caused the artificial prices; and (4) Defendants specifically intended to cause the artificial price.” In re Amaranth Natural Gas Commodities Litig., (“Amaranth III”) 730 F.3d 170, 173 (2d Cir. 2013) (quotation marks omitted). In order to avoid dismissal, the plaintiffs “not only must allege the elements of a commodities manipulation claim, but also must show that they have standing to sue.” In re LIBOR-based Fin. Instruments Antitrust Litig. (“LIBOR I”), 962 F.Supp.2d 606, 620 (S.D.N.Y. 2013). “Under section 22(a) of the CEA, a plaintiff has standing to bring a commodities manipulation action only if he has suffered ‘actual damages’ as a result of defendant’s manipulation.” Id (quoting 7 U.S.C. § 25(a)(1)). “The term ‘actual damages’ has been applied by courts in a straightforward manner to require a showing of actu al injury caused by the violation.” Id. (quotation marks omitted). The CAC does not plead facts' that would allow the Court to draw a reasonable inference that the plaintiffs suffered any economic injury as a result of the defendants’ alleged manipulation of monthly index prices of physical natural gas at the regional hubs. See Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. The plaintiffs’ theory of damages is as follows: The defendants “manipulated monthly index settlement prices of [physical] natural gas” at the four regional hubs. CAC ¶ 1. According to the allegations in the FERC R & R on which the plaintiffs rely, the defendants engaged in 1,182 trades that are alleged to have been made in an attempt to manipulate index prices at those four hubs. FERC R & R p. 95 n.440. The plaintiffs transacted in instruments priced not with reference to the index prices at those regional hubs, but rather with reference to “NY-MEX prices or other instruments tied to the Henry Hub.” Plaintiffs’ Mem. in Opp, to Mot. p. 14." }, { "docid": "12308692", "title": "", "text": "of defendants’ alleged ... manipulative conduct, and that the artificiality was adverse to their position.” Id. at 622. The Fixing Members argue that Plaintiffs lack CEA standing because Plaintiffs fail to allege that they transacted in the “moments immediately before and after the Silver Fix.” Defs.’ Mem. at 45. But Plaintiffs allege that the effects of Defendants’ manipulation persisted beyond the Fixing window. SAC ¶¶ 173-76 & Figs. 33-34. While the Fixing Members correctly point out that Plaintiffs’ allegations of “persistence” are in tension with their allegations that the Fixing marked a uniquely dysfunctional period of the trading day, Defs.’ Mem. at 45, they are not necessarily incompatible. Viewing the allegations in the light most favorable to the Plaintiffs, the Court could find that the Plaintiffs have adequately alleged that, on days that Defendants engaged in manipulation, the Fixing marked an abrupt downward aberration in pricing, which abated gradually, but perhaps not completely, over time. Under such circumstances, allegations that Plaintiffs sold a particular quantity of silver futures on specifically identified dates when Defendants are alleged to have artificially suppressed the Fix Price are sufficient for CEA standing purposes. Compare In re Amaranth Nat. Gas Commodities Litig., 269 F.R.D. 366, 379-80 (S.D.N.Y. 2010) (in the context of CEA class certification, “case law suggests that because plaintiffs transacted at artificial prices, injury may be presumed”) with LI-BOR II, 962 F.Supp.2d at 620-21 (no standing where Plaintiffs failed plausibly to allege that they transacted on days on which prices were artificial or that the alleged artificiality was adverse to their positions). VII. Plaintiffs Adequately Allege Price Manipulation Plaintiffs assert claims under CEA Section 9(a)(2), 7 U.S.C. § 13(a)(2), which makes it unlawful for “any person to manipulate or attempt to manipulate the price of any commodity in interstate commerce.” Although manipulation claims that sound in fraud may be evaluated under the more stringent pleading requirements of Fed. R. Civ. P. 9(b), In re Amaranth Nat. Gas Commodities Litig., 730 F.3d 170, 180-81 (2d Cir. 2013) (reserving question of whether Rule 9(b) applies to market manipulation claims based on fraud), courts in this" }, { "docid": "10154687", "title": "", "text": "III, 730 F.3d at 173 (quotation marks omitted). “The CEA provides a private right of action against individuals ‘who purchased or sold a [futures] contract’ if those individuals ‘manipulated] the price of any such contract or the price of the commodity underlying such contract.’ ” Hershey v. Energy Transfer Partners, L.P., 610 F.3d 239, 246 (5th Cir. 2010) (quoting 7 U.S.C. § 25(a)(1)(D)). Thus, to state a claim under the CEA the plaintiffs must plausibly allege that the defendants specifically intended to manipulate the price of the commodity underlying the contracts they entered into. See Amaranth III, 730 F.3d at 183 (“Plaintiffs-Appellants were required to allege that ... Amaranth specifically intended to manipulate the price of NYMEX natural gas futures.”). The plaintiffs argue that the “commodity underlying” the contracts the plaintiffs purchased is natural gas generally, and that it is therefore unnecessary to allege that the defendants intended to manipulate the price of physical natural gas at the Henry Hub or of derivatives contracts tied to the Henry Hub. Plaintiffs’ Mem. in Opp. to Mot. p. 21. They contend that allegations of intent to manipulate prices at the four regional hubs is sufficient. Hershey, which was cited by the Second Circuit Court of Appeals in Amaranth III, is directly on point and disposes of the plaintiffs’ argument. In Hershey, as here, the plaintiffs were purchasers of NY-MEX natural gas futures contracts. 610 F.3d at 240. The plaintiffs there alleged manipulation of natural gas futures and options prices based on the defendants’ alleged manipulation of physical natural gas prices at the Houston Ship Channel hub. Id. at 241. As here, the plaintiffs argued that “prices of physical natural gas, wherever bought or sold, directly affect NYMEX natural gas futures contract prices.” Id. at 247. The Fifth Circuit Court of Appeals affirmed dismissal of the complaint and rejected the plaintiffs’ argument—also made here—that “the interconnected nature of the industry necessitates a finding that natural gas generally is the underlying commodity [of a futures contract] because the fungible commodity at any hub is ‘inextricably linked’ with the NYMEX natural gas futures price.” Id." }, { "docid": "23265797", "title": "", "text": "Commodity Exchange Act”); Valencia, 394 F.3d at 353 (considering allegations defendant manipulated natural gas market, by reporting false trades, in violation of § 13(a)(2)); United States v. Radley, 659 F.Supp.2d 803, 806 (S.D.Tex.2009) (stating “natural gas” was “the commodity at issue in the case”); Reed, 481 F.Supp.2d at 1196 (finding allegations “Defendant attempted to manipulate the price of natural gas, a commodity that travels in interstate commerce” covered by CEA); Atha, 420 F.Supp.2d at 1377-78 (stating “[njatural gas is a commodity”); Bradley, 408 F.Supp.2d at 1220 (“It is undisputed that natural gas constitutes a ‘commodity’ under the CEA.”); Johnson, 408 F.Supp.2d at 264-65 (finding allegations defendants falsely reported natural gas trades stated a claim under § 13(a)(2)). Hershey v. Energy Transfer Partners, L.P., 610 F.3d 239 (5th Cir.2010), does not contradict this reading. In that case, the Court considered whether private plaintiffs had a cause of action based on allegations that the defendants were manipulating the price of natural gas at hubs other than Henry Hub. Id. at 243-49. The private plaintiffs’ standing to sue was premised on their holding NYMEX futures contracts. Id. at 240. The CEA, however, provides a right of action for holders of a futures contract for manipulation of that contract or “the price of the commodity underlying such contract.” See 7 U.S.C. § 25(a)(1)(D). Consequently, as the plaintiffs had not alleged manipulation of the Henry Hub natural gas price, which price underlay their security, they had no cause of action against manipulation of the price of natural gas which had no affect on their security. See Hershey, 610 F.3d at 241, 247 (stating “[t]he modifier ‘underlying’ has an important effect on ‘commodity— the ‘underlying commodity’ of a futures contract is a specific good, governed by the terms of the futures contract”; holding “the underlying commodity of a NYMEX natural gas futures contract is not natural gas wherever bought and sold, but the specific natural gas delivered at Henry Hub”). Hershey, however, never questioned whether natural gas was a commodity subject to § 13(a)(2). Accordingly, we find that natural gas, whether at Henry Hub or at" }, { "docid": "12291605", "title": "", "text": "alleged ... manipulative conduct, and that the artificiality was adverse to their position.” Id. at 622. The Fixing Banks argue that Plaintiffs lack CEA standing because Plaintiffs fail to allege that they “engaged in a transaction at a time during which prices were artificial.” Defs.’ Mem. at 48 (citing LIBOR II, 962 F.Supp.2d at 622 (emphasis added)). But Plaintiffs allege that the effects of Defendants’ manipulation persisted beyond the PM Fixing window. SAC ¶ 222 & chart. While Plaintiffs’ allegations of “persistence” are potentially in tension with their allegations that the PM Fixing marked a uniquely dysfunctional period of the trading day, they are not necessarily incompatible. Viewing the allegations in the light most favorable to Plaintiffs, the Court could find that Plaintiffs have adequately alleged that, on days on which Defendants engaged in manipulation, the Fixing marked an abrupt downward aberration in pricing, which abated gradually, but perhaps not completely, over time. Under such circumstances, allegations that Plaintiffs sold gold futures on specifically identified dates on which Defendants are alleged to have artificially suppressed the Fix Price are sufficient for CEA standing purposes. Compare In re Amaranth Natural Gas Commodities Litig., 269 F.R.D. 366, 379-80 (S.D.N.Y. 2010) (in the context of CEA class certification, “case law suggests that because plaintiffs transacted at artificial prices, injury may be presumed”) with LIBOR II, 962 F.Supp.2d at 620-21 (no standing where Plaintiffs failed plausibly to allege that they transacted on days on which prices were artificial or that the alleged artificiality was adverse to their positions). VI. Plaintiffs Adequately Allege Price Manipulation Plaintiffs assert claims under CEA Sections 9(a)(2) and 6(c)(3), 7 U.S.C. §§ 9(3), 13(a)(2), and CFTC Rule 180.2, which makes it unlawful for “any person to manipulate or attempt to manipulate the price of any commodity in interstate commerce.” Although manipulation claims that sound in fraud are evaluated under the more stringent pleading requirements of Fed. R. Civ. P. 9(b), In re Amaranth Nat. Gas Commodities Litig., 730 F.3d 170, 180-81 (2d Cir. 2013), courts in this District have generally found that “fraud is not a necessary element of a" }, { "docid": "10154686", "title": "", "text": "“merely ‘conceivable’—and thus insufficiently pled.” LIBOR II, 27 F.Supp.3d at 461 (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). The plaintiffs have therefore failed to allege plausibly that they have suffered “actual damages,” and their claims in Counts One and Two of the CAC must be dismissed. LIBOR I, 962 F.Supp.2d at 620 (quoting 7 U.S.C. § 25(a)(1)). Moreover, because the plaintiffs failed to state a claim under the CEA in Counts One and Two of the CAC, their claims for aiding and abetting and principal-agent liability, Counts Three and Four, also fail. See 7 U.S.C. § 2(a)(1)(B); In re Platinum and Palladium Commodities Litig., 828 F.Supp.2d 588, 599 (S.D.N.Y. 2011). In sum, Counts One through Four must be dismissed because the plaintiffs have not plausibly alleged actual damages and thus cannot state a claim for manipulation under the CEA. B. The CEA claims must also be dismissed because the CAC fails to allege plausibly that TGPNA “specifically intended to cause the artificial price” of physical or financial instruments purchased by the plaintiffs. Amaranth III, 730 F.3d at 173 (quotation marks omitted). “The CEA provides a private right of action against individuals ‘who purchased or sold a [futures] contract’ if those individuals ‘manipulated] the price of any such contract or the price of the commodity underlying such contract.’ ” Hershey v. Energy Transfer Partners, L.P., 610 F.3d 239, 246 (5th Cir. 2010) (quoting 7 U.S.C. § 25(a)(1)(D)). Thus, to state a claim under the CEA the plaintiffs must plausibly allege that the defendants specifically intended to manipulate the price of the commodity underlying the contracts they entered into. See Amaranth III, 730 F.3d at 183 (“Plaintiffs-Appellants were required to allege that ... Amaranth specifically intended to manipulate the price of NYMEX natural gas futures.”). The plaintiffs argue that the “commodity underlying” the contracts the plaintiffs purchased is natural gas generally, and that it is therefore unnecessary to allege that the defendants intended to manipulate the price of physical natural gas at the Henry Hub or of derivatives contracts tied to the Henry Hub. Plaintiffs’ Mem. in Opp. to Mot." }, { "docid": "8935208", "title": "", "text": "he wishe[d] to bring about, that he [sought] by his action to make it succeed.” Peoni, 100 F.2d at 402. Thus, in sum, the standard for aiding and abetting liability under 7 U.S.C. § 25 is the same as for criminal aiding and abetting under 18 U.S.C. § 2. The best articulation of this standard is that found in Peoni. Inherent in Peoni’s articulation is a relationship between a defendant’s knowledge, intent, and the nature of assistance given. Accordingly, in evaluating a complaint alleging the aiding and abetting of a violation of the CEA, allegations about the defendant’s knowledge, intent, and actions should not be evaluated in isolation, but rather in light of the complaint as a whole. 3. Analysis Commodities manipulation requires “that (1) Defendants possessed an ability to influence market prices; (2) an artificial price existed; (3) Defendants caused the artificial prices; and (4) Defendants specifically intended to cause the artificial price.” Hershey, 610 F.3d at 247; see also DiPlacido v. CFTC, 364 Fed. Appx. 657, 661 (2d Cir.2009). There is thus no manipulation without intent to cause artificial prices. Accordingly (and because aiding and abetting requires knowledge of the primary violation and an intent to assist it), Plaintiffs-Appellants were required to allege that J.P. Futures knew that Amaranth specifically intended to manipulate the price of NYMEX natural gas futures and that J.P. Futures intended to help. Looking at the amended complaint as a whole, we conclude that Plaintiffs-Appellants’ allegations of such knowledge and intent, considered in connection with the routine services that J.P. Futures allegedly provided to Amaranth, fail to state a claim for aiding and abetting manipulation under the CEA. As stated earlier, Plaintiffs-Appellants allege that Amaranth manipulated the price of NYMEX natural gas futures in two ways: (1) the accumulation of large open positions that artificially propped up natural gas calendar spreads; and (2) its “slamming the close” trades. Plaintiffs-Appellants allege that J.P. Futures had knowledge of these manipulative schemes because it had information on Amaranth’s daily trading activity and open positions on NYMEX and ICE. This information also meant that J.P. Futures knew when" }, { "docid": "12601678", "title": "", "text": "and plain statement of the claim” and that all pleadings “shall be simple, concise and direct,” rather than arguing that the CCAC lacks sufficient information to provide notice of a claim. Fed.R.Civ.P. 8. (emphasis added). Defendants argue that the Court must dismiss the manipulation claim because the Complaints inadequately allege the elements of that claim under the CEA. This argument raises several issues, including what the elements of a manipulation claim are, whether a plaintiff must plead all of those elements in a complaint, and, if so, whether Plaintiffs here did so adequately. Courts have disagreed on the exact prerequisites of a manipulation claim under Section 9(a) of the CEA. Many have adopted the following four elements: (1) the defendant possessed an ability to influence market prices; (2) an artificial price existed; (3) the defendant caused the artificial price; and (4) the defendant specifically intended to cause the artificial price. See In re Soybean Futures Litig., 892 F.Supp. at 1045; Grossman v. Citrus Assocs. of the New York Cotton Exch., Inc., 706 F.Supp. 221, 231 (S.D.N.Y.1989). Other courts have rephrased the elements as: (1) manipulative conduct; (2) a specific intent to create an artificial price; (3) a causal relationship between the defendant’s manipulative conduct and the resulting price; and (4) an artificial price. See Transnor (Bermuda) Ltd. v. BP North America Petroleum, 738 F.Supp. 1472, 1493 (S.D.N.Y.1990). See also, In re Sumitomo Copper Litig., 182 F.R.D. 85, 89-90 (S.D.N.Y.1998) (“To prevail on a cause of action for commodities manipulation under the CEA, plaintiffs must establish the following elements: (1) the existence of an artificial price, (2) an intent to cause an artificial price, and (3) causation of the artificial price by the defendants.”). Defendants, relying on the elements as stated in Soybean Futures and Grossman, argue that the complaints must be dismissed because Plaintiffs failed to adequately allege that the Defendants possessed market power. Paragraph 67 of the CCAC states that “Defendants, as major participants in the physical natural gas market, had the ability through their reporting of physical natural gas transactions to influence the price of NYMEX gas futures.”" }, { "docid": "18176037", "title": "", "text": "2009, and May 2010. Plaintiffs’ claims based on contracts entered into during Period 2, between May 30, 2008, and April 14, 2009, may or may not be barred, though we will not dismiss them at this stage. Finally, plaintiffs may move to amend their complaint to include allegations based on information derived from the Barclays settlements, provided that any such motion addresses the concerns raised herein and is accompanied by a proposed second amended complaint. 3. Pleading Commodities Manipulation Finally, defendants argue that plaintiffs have inadequately pleaded their primary claim for commodities manipulation and their secondary claims for vicarious liability for and aiding and abetting commodities manipulation. For the reasons discussed below, we disagree. a. Legal Standard Section 9(a) of the CEA makes it a crime for any person “to manipulate or attempt to manipulate the price of any commodity in interstate commerce, or for future delivery on or subject to the rules of any registered entity, or of any swap .... ” 7 U.S.C. § 13(a)(2). In DiPlacido v. Commodity Futures Trading Commission, 364 Fed.Appx. 657 (2d Cir.2009), the Second Circuit established a four-part test for pleading manipulation under the CEA: plaintiff must show “(1) that [defendant] had the ability to influence market prices; (2) that [he] specifically intended to do so; (3) that artificial prices existed; and (4) that [defendant] caused the artificial prices.” Id. at 661 (quoting In re Cox, No. 75-16, 1987 WL 106879, at *3 (C.F.T.C. July 15, 1987)); see also In re Platinum & Palladium Commodities Litig., 828 F.Supp.2d 588, 598 (S.D.N.Y.2011). “[T]o determine whether an artificial price has occurred, one must look at the aggregate forces of supply and demand and search for those factors which are extraneous to the pricing system, are not a legitimate part of the economic pricing of the commodity, or are extrinsic to that commodity market.” In re Sumitomo Copper Litig., 182 F.R.D. 85, 91 (S.D.N.Y.1998) (quoting In re Indiana Farm Bureau Coop. Ass’n, Inc., No. 75-14, 1982 WL 30249, at *39 n. 2 (C.F.T.C. Dec. 17, 1982)), (internal quotation marks and emphasis omitted). Whether plaintiffs are required" }, { "docid": "10154674", "title": "", "text": "2 of the Sherman Act, 15 U.S.C. § 2. CAC ¶ 344. The CAC alleges that the defendants reported “excessive trading volumes of uneconomic trades and maintained an excessively high market share during bidweek” at the four regional hubs, “which impacted and controlled the reported monthly index settlement prices” at those hubs. Id. ¶ 346. The CAC further alleges that the plaintiffs— who traded natural gas derivatives “whose prices were inextricably linked to the price of natural gas” at the four regional hubs— “were deprived of normal, competitive trading patterns” and suffered financial losses as a consequence. Id. ¶ 351. The plaintiffs seek treble damages under § 4 of the Clayton Act, 15 U.S.C. § 15, as well as punitive and actual damages, costs, and fees. III. A. The defendants move to dismiss the CEA claims, Counts One through Four, for failure plausibly to allege damages. “The CEA prohibits any person from ‘manipulating] or attempting] to manipulate the price of any commodity.’” In re Commodity Exchange, Inc. Silver Futures and Options Trading Litig. (“Silver Futures”) 560 Fed.Appx. 84, 86 (2d Cir. 2014) (summary order) (quoting 7 U.S.C. § 13(a)(2)). “While the CEA itself does not define the term, a court will find manipulation where (1) Defendants possessed an ability to influence market prices; (2) an artificial price existed; (3) Defendants caused the artificial prices; and (4) Defendants specifically intended to cause the artificial price.” In re Amaranth Natural Gas Commodities Litig., (“Amaranth III”) 730 F.3d 170, 173 (2d Cir. 2013) (quotation marks omitted). In order to avoid dismissal, the plaintiffs “not only must allege the elements of a commodities manipulation claim, but also must show that they have standing to sue.” In re LIBOR-based Fin. Instruments Antitrust Litig. (“LIBOR I”), 962 F.Supp.2d 606, 620 (S.D.N.Y. 2013). “Under section 22(a) of the CEA, a plaintiff has standing to bring a commodities manipulation action only if he has suffered ‘actual damages’ as a result of defendant’s manipulation.” Id (quoting 7 U.S.C. § 25(a)(1)). “The term ‘actual damages’ has been applied by courts in a straightforward manner to require a showing of actu" } ]

[ { "docid": "16242978", "title": "", "text": "President till the meeting of the stockholders in March, 1943, and was elected President then. It was also found that Houghton while President had controversies with the Insurance Commissioner of Texas, and there had 'been serious differences between him and the stockholders and the Board of Directors; but the court expressly left out of consideration these matters and held that because the position was not a simple employment,- but an elective position that must be filled by election under the charter of the corporation and the insurance laws of the State, the court had no authority to interfere and that judgment must go for the defendant. We do not think so. The pertinent words of Section 8 of the Selective Service Act, as amended, 50 U.S.C.A.Appendix, § 308, are quoted in the margin. They are, as the district court said, to be liberally construed in the veteran’s favor. The service which Houghton left to go into service was “a position, other than a temporary position, in the em ploy of an employer.” Being merely a ■director of a corporation, or its president ■without special duties or compensation, would probably not be such, but the evidence plainly shows, though the by-laws .and charter which must have fixed duties .and compensation were not introduced in evidence, that Houghton had executive and managerial duties, and was paid a salary of $4,800 per year. His employment was not temporary, though limited in time to one year, and continuance thereafter was conditioned on reelection. The job itself was a permanent one and is still in existence. So far as the laws of Texas have a bearing, ■they provide that “The affairs of any insurance company organized under the laws ■of this State shall be managed by not fewer than seven directors, all of whom shall be -stockholders in the company” (Vernon’s 'Civil Statutes Art. 4708), and “The directors shall choose by ballot from their own number a president and such other officers .as the by-laws require, who shall perform ■such duties, receive such compensation and give such security as the by-laws may require” (Art. 4711)," } ]

[ { "docid": "5577517", "title": "", "text": "belt. The loader was equipped with water sprays to wet down the coal and reduce dust. While on duty Phillips refused to continue his work because in his opinion the water sprays on the loader were not working properly. The foreman disagreed with the petitioner’s opinion and directed him to resume work. When Phillips refused to obey the foreman discharged him. Pursuant to the contract between the petitioner’s Union, the United Mine Workers, and the company, the matter of the petitioner’s discharge was submitted to binding arbitration. The grievance submitted by the Union on behalf of the petitioner alleged that he had been wrongfully discharged. After hearing testimony from both company and Union witnesses the umpire rendered his final and binding decision. He held, in pertinent part: Under the Management of Mines clause of the contract the management of the mine, the direction of the working force, is vested exclusively in the operator. The only justifiable reason • a miner would have to refuse to obey a direct order to continue to perform his normal duties, is that such an order would put him in danger of immediate personal injury of danger to his life. Such danger did not exist in this case. The grievant in this case was not working continuously near the face of the coal where he complained of excessive dust. The only time he was there was when he was waiting to, have his buggy loaded or his buggy was actually being loaded. The men who were working on the equipment at the face of the coal were there continuously during their shift. They continued on with their work and did not walk off the job. There is no showing in this case that the grievant was in any immediate danger of great physical harm or danger to his life by continuing to carry out his duties as the other employees of this section continued to do. It has in all cases known to this umpire been held that failure to carry out an order to perform duties assigned to a miner is a violation of" }, { "docid": "22373159", "title": "", "text": "remains, however, whether petitioners’ “rights secured” under Title I were “infringed” by the termination of their union employment. Petitioners, as union members, had a right under §§ 101(a)(1) and (2) to campaign for Brown and to vote in the union election, but they were not prevented from exercising those rights. Rather, petitioners allege only an indirect interference with their membership rights, maintaining that they were forced to “choos[e] between their rights of free expression . . . and their jobs.” See Retail Clerks Union Local 648 v. Retail Clerks International Assn., 299 F. Supp. 1012, 1021 (DC 1969). We need not decide whether the retaliatory discharge of a union member from union office — even though not “discipline” prohibited under § 609 — might ever give rise to a cause of action under § 102. For whatever limits Title I places on a union’s authority to utilize dismissal from union office as “part of a purposeful and deliberate attempt... to suppress dissent within the union,” cf. Schonfeld v. Penza, 477 F. 2d 899, 904 (CA2 1973), it does not restrict the freedom of an elected union leader to choose a staff whose views are compatible with his own. Indeed, neither the language nor the legislative history of the Act suggests that it was intended even to address the issue of union patronage. To the contrary, the Act’s overriding objective was to ensure that unions would be democratically governed, and responsive to the will of the union membership as expressed in open, periodic elections. See Wirtz v. Hotel Employees, 391 U. S. 492, 497 (1968). Far from being inconsistent with this purpose, the ability of an elected union president to select his own administrators is an integral part of ensuring a union administration’s responsiveness to the mandate of the union election. Here, the presidential election was a vigorous exercise of the democratic processes Congress sought to protect. Petitioners — appointed by the defeated candidate — campaigned openly against respondent Leu, who was elected by a substantial margin. The Union’s bylaws, adopted, and subject to amendment, by a vote of the union" }, { "docid": "9681132", "title": "", "text": "the promotion. There was no need to apply for promotion or indicate any interest in it. The person next in line (in terms of job seniority) was automatically to be asked. The bag catcher position, historically assigned to women, and the chute loader position, historically assigned to men, both fed into the baler position as of the merger of the lines of progression in the Grocery Bag Department in 1974. When a baler vacancy occurred, the most senior bag catcher or chute loader should have been promoted to baler, unless someone was already working as a temporary baler and was therefore entitled to preference. In September, 1976, seventeen men were promoted to permanent baler positions. Fifteen of these were temporary balers and so properly given priority in promotion. However, two of the promotions were given to men whose job seniority entitled them to no preference over appellants. One had temporary seniority as a “broke handler” dating back to January 30, 1976. He had moved into broke handling from chute loading and had mill seniority only as of July, 1975. The other had temporary seniority as a “bypass rich and joyce for broke” and had mill seniority as of July, 1975. He had also been a permanent chute loader when placed in his temporary position. Appellants all had job seniority as bag catchers dating back to September, 1970. None was offered a baler position at the relevant time. As these men had neither temporary seniority as baler entitling them to preference in promotion nor sufficient job seniority as chute loaders to entitle them to promotion over appellants, appellants have clearly made out a prima facie case of discrimination in promotion falling within the limitations period. The majority acknowledges the evidence presented by appellants to demonstrate that the two baler promotions were dis-criminatorily made, but fails to accord it any significance, saying only: “Taking the evidence regarding this issue on the whole, the district court’s finding on this issue was not clearly erroneous.” Majority Op. at 1461. I cannot understand the majority’s approach to this issue. The district court did not discuss" }, { "docid": "9631037", "title": "", "text": "by the Petitioner that Putnam and Sutfin had been replaced. Clearly an employer who has replaced striking workers in order to keep his plant functioning is not required to discharge the workers he employed as replacements once the strike is over. N. L. R. B. v. Mackay Radio & Tel. Co., 304 U.S. 333, 345-346, 58 S.Ct. 904, 910, 82 L.Ed. 1381 (1938): “Nor was it an unfair labor practice to replace the striking employes with others in an effort to carry on the business. Although § 13 provides, ‘Nothing in this Act shall be construed so as to interfere with or impede or diminish in any way the right to strike,’ it does not follow that an employer, guilty of no act denounced by the statute, has lost the right to protect and continue his business by supplying places left vacant by strikers. And he is not bound to discharge those hired to fill the places of strikers upon the election of the latter to resume their employment, in order to create places for them. The assurance by respondent to those who accepted employment during the strike that if they so desired their places might be permanent was not an unfair labor practice nor was it such to reinstate only so many of the strikers as there were vacant places to be filled.” However, the record is clear that no one was employed to replace either Putnam or Sutfin. As we read the record no one was ever assigned or hired to fill the position of Putnam. Sutfin’s position was filled by another employee who was simply moved into Sutkin’s position. There is no evidence in this record that anyone was hired to fill the position of the individual who was promoted to Sutfin’s work. The Petitioner relies upon N. L. R. B. v. Union Carbide Corporation, 440 F.2d 54 (4th Cir., 1971). But in Union Carbide the Court held that workers who had honored the picket line of another union were entitled to the same status as economic strikers including the right to reinstatement if replacement had not" }, { "docid": "16242977", "title": "", "text": "Houghton and by the Actuary of the Company, which is in no material conflict, and there were introduced Houghton’s written application to the annual stockholders meeting on March 12, 1946; and also the resolution of the Board of Directors, on April 15, 1946, in which, because of the Company’s changed circumstances, they declined to restore him to the Presidency, but offered to pay a full year’s salary for the year which had begun March, 1942, if he would withdraw his present application; but if not, declaring they would defend in court against his application for reinstatement as President. The court’s opinion found as facts that Houghton was a Director and President of the Company at an annual salary of $4,800 when ordered into the service in April, 1942, that he continued in the service till Dec. 15, 1945, when he obtained a certificate of completion of duty; that he made in due time the application above described and was refused, and that he refused the offer of a year’s salary; that Vice-President Smith acted as President till the meeting of the stockholders in March, 1943, and was elected President then. It was also found that Houghton while President had controversies with the Insurance Commissioner of Texas, and there had 'been serious differences between him and the stockholders and the Board of Directors; but the court expressly left out of consideration these matters and held that because the position was not a simple employment,- but an elective position that must be filled by election under the charter of the corporation and the insurance laws of the State, the court had no authority to interfere and that judgment must go for the defendant. We do not think so. The pertinent words of Section 8 of the Selective Service Act, as amended, 50 U.S.C.A.Appendix, § 308, are quoted in the margin. They are, as the district court said, to be liberally construed in the veteran’s favor. The service which Houghton left to go into service was “a position, other than a temporary position, in the em ploy of an employer.” Being merely a" }, { "docid": "23090136", "title": "", "text": "to unionize petitioner’s men, and that petitioner deliberately refused to bargain collectively points to a record teeming with unmistakable evidences of petitioner’s opposition to, and apprehension of the forming union. Particularly it points to petitioner’s system of espionage over union activities, including its efforts to have LaVell, before his election to the presidency of the Local, to act as a lookout and contact man for it, to keep it advised of the union’s progress; its having the chief of police pick up Henderson, the union organizer, and the fact if the reskit not of causal, but of casual coincidence, that of the seven men whose discharge is complained of, four were the chief officers of the Local, and the other three were active in it. Finally, it points to the settled and firm position petitioner took throughout the trial, that the coming of the union had slackened efficiency among its men. That it has insisted and intends to insist, upon its right to apply its disciplinary methods individually to its men, in order to bring up their efficiency, and that it insisted throughout the hearing, and insists in the briefs, that the only conditions under which it will put men at and lay them off from work are tests of their willingness to work efficiently, individually applied to each worker, wholly without regard to the attitude or point of view of the Union as a Union, or of their membership in it. . As opposed to petitioners insistence that it did not refuse to bargain collectively, and that it never has so refused, the Board points to the fact that though the organization had been trying for more than six months before the hearing to make itself felt in bettering the working conditions of the men, and had made overt and positive efforts to institute negotiations to that end, the record is bare of evidence that petitioner or any of its agents or officers have ever, except by the sitting in of its agent in the completely futile and abortive negotiations with the Maritime Association, recognized or dealt with the" }, { "docid": "22149053", "title": "", "text": "IEC was heard. Counsel was allowed to present argument and read from depositions of Freeman and Geary with respect to the IP’s good faith in revoking the charter. After supplemental briefs were filed, the IEC, on September 30, affirmed the IP’s order in every particular, holding “beyond question” that the IP had conducted himself properly in revoking the charter. The District Court refused to find that the IEC was prejudiced. The reinstitution of legal action by Local 28 followed on October 18. Local 24 During July, before the revocation, International Representative Terry remained in Baltimore making himself available to the members of Local 28 to explain the position of the International with regard to the strike. On August 27 a charter was granted to Local 24. The initial membership, numbering about 30, adopted bylaws and elected temporary officers. It included a number of Local 28 members who had been supervisory personnel and officers of key members of the Chapter, but who had resigned their offices in their companies. When permanent officers were elected, however, several hundred men had joined Local 24. In September, an agreement was reached between Local 24 and the Maryland Chapter for a 25^ wage increase for each of two years. This agreement originally contained the continuous “yellow sheet” Council clause, but it was deleted by IP Freeman who testified that he did so to make the contract accord with the court’s earlier ruling. On October 27, Freeman wrote to each member of Local 28 stating the IBEW position that members transferring to Local 24 would not lose their interest in the funds of 28. As of March 31, 1962, Local 24, which was an open union accepting all applications for membership from qualified electricians, had some 1300 members, of whom 240 had transferred from Local 28. Local 28 was a “closed union,” limiting membership to increase the employment opportunities of its members. II. LEGAL DISCUSSION Although courts are generally reluctant to interfere in internal union matters, at common law they have, nevertheless, established various norms to determine the legality and fairness of union disciplinary action. Professor," }, { "docid": "22128532", "title": "", "text": "to them. The result should be the same if [petitioner] had promised to retain them if it did not settle with the union and if it were not ordered to reinstate strikers.” Ibid. If petitioner had not settled in this case and the strike was later adjudicated to have been an economic one, petitioner might have been free to retain respondents and to refuse to reinstate the strikers. The record suggests that petitioner hired respondents on a permanent basis in order to continue business operations. See ante, at 494-495. It is difficult to imagine, however, how a conditional offer like the one described by the Court could be construed as an offer of permanent employment. Under the terms of the Court’s conditional offer, the employer is simply saying that he will retain the replacements unless he decides, or is ordered, to reinstate the strikers. As the Court notes, ante, at 501, the Board requires an employer to “show that the men [and women] who replaced the strikers were regarded by themselves and the [employer] as having received their jobs on a permanent basis.” Georgia Highway Express, Inc., 165 N. L. R. B. 514, 516 (1967), aff’d sub nom. Truck Drivers and Helpers Local No. 728 v. NLRB, 131 U. S. App. D. C. 195, 403 F. 2d 921 (1968). See also Covington Furniture Mfg. Corp., 212 N. L. R. B. 214, 220 (1974), enf’d, 514 F. 2d 995 (CA6 1975) (“While an employer may hire permanent replacements during the course of the strike in order to protect and continue his business, and need not discharge those permanent replacements in order to create vacancies for economic (as distinct from unfair labor practice) strikers who wish to return to work, . . . the employer’s hiring offer must include a commitment that the replacement position is permanent and not merely a temporary expedient subject to cancellation if the employer so chooses”). It seems clear that the conditional offer endorsed by the Court could not reasonably be construed to give rise to an understanding that the replacements had received their jobs on a" }, { "docid": "8650472", "title": "", "text": "the position he had held with the Corporation prior to his induction into service or to a position of like seniority, status and pay. The respondent raised several defenses, among them that the reinstatement of these petitioners would be in violaion of the collective bargaining agreements in effect in the plants involved and contrary to the Act, that the petitioners were temporary employees and as such not entitled to the protection of the Act, and that the respondent’s circumstances have so changed as to make it impossible and unreasonable for it to restore the petitioners to their respective positions or to positions of like seniority, status and pay. The respondent impleaded the union involved, International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, C.I.O., and its Local 669, and by counterclaim sought a declaratory judgment against the petitioners and the union asking for an adjudication of •the rights and liabilities of all parties under the Act and the collective bargaining agreements. The four cases were consolidated for trial. At the trial two additional veteran employees, Emil F. Tlusty and Mark J. Fitzpatrick, were impleaded by order of the district court on the theory that their rights were involved in the original proceedings. The collective bargaining agreements referred to in the first defense were entered into by the respondent and the union during the period when the petitioners were in military service and they made certain changes in the prevailing rules governing seniority to be observed in laying off and rehiring employees in periods of slack work. The change made by the agreement of October 1, 1943 was to add union stewards to the list of union officials given top seniority during their term of office without regard to the actual time they were employed by the respondent. The agreement of December 4, 1945 specified that the top seniority thus given applied during lay-off periods only. The latter agreement also provided that an employee’s seniority rights were limited to the last occupation in which he was classified upon the company’s records and to those previous occupations in which he" }, { "docid": "8650471", "title": "", "text": "MARIS, Circuit Judge. These are cross appeals from an order of the United States District Court for the District of New Jersey which adjudicated the rights of the petitioners under Section 8(e) of the Selective Training and Service Act of 1940, as amended, 50 U.S.C.A.Appendix, § 308(e). They present the same general question as that involved in the case of Gauweiler v. Elastic Stop Nut Corporation of America, 3 Cir., 162 F.2d 448. This court decides in that case that an employee absent in war service is bound by collective bargaining agreement made between the bargaining agent of the employees and the employer, provided the agreement is nondiscriminatory as to veterans. The court holds in the Gauweiler case that a returning veteran employee has no right to displace a nonveteran union official of less service seniority who has top seniority by reason of the agreement. Each of the original petitioners in the present case, James W. Payne, Anthony Frank, Michael J. Grinnan and Rocco Roy Pompeo, sought reinstatement by the respondent, Wright Aeronautical Corporation, to the position he had held with the Corporation prior to his induction into service or to a position of like seniority, status and pay. The respondent raised several defenses, among them that the reinstatement of these petitioners would be in violaion of the collective bargaining agreements in effect in the plants involved and contrary to the Act, that the petitioners were temporary employees and as such not entitled to the protection of the Act, and that the respondent’s circumstances have so changed as to make it impossible and unreasonable for it to restore the petitioners to their respective positions or to positions of like seniority, status and pay. The respondent impleaded the union involved, International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, C.I.O., and its Local 669, and by counterclaim sought a declaratory judgment against the petitioners and the union asking for an adjudication of •the rights and liabilities of all parties under the Act and the collective bargaining agreements. The four cases were consolidated for trial. At the trial two additional" }, { "docid": "9601685", "title": "", "text": "66 S.Ct. 1105, 90 L.Ed. 1230. And the offer of a year’s salary without working would not accord to the veteran the opportunity to reacquire skills and business habits which appears to be the purpose of the Act. See Kay v. General Cable Corp., D.C.N.J. 1945, 59 F.Supp. 358, 360. Nor do we find any merit in respondent’s argument that petitioner should look to his mother for reemployment rather than the corporation. The court below found that petitioner had a contractual relationship with the corporation as an employee. That being so the change in. stock ownership would not affect petitioner’s reemployment rights against the corporate employer. See The Trailmobile Co. v. Whirls, 6 Cir., 1946, 154 F.2d 866, 871, reversed on other grounds, 328 U.S. 831, 66 S.Ct. 1364, 90 L.Ed. 1607; Sullivan v. Milner Hotel Co., D.C.E.D.S.D. Mich. 1946, 66 F.Supp. 607, 610; Karas v. Klein, D.C.D. Minn. 1947, 70 F.Supp. 469; Selective Service Handbook § 305.6. In its final assignment of error the respondent argues that since it is both unreasonable and beyond the terms of the Act to order petitioner’s reemployment in the elective offices of president, director and general manager, it was error for the court to order reemployment in only a segment of petitioner’s former activities with the corporation. There is no doubt that a veteran who held only an elective office with a corporate employer is not entitled to the benefits of the Selective Training and Service Act. See Trusteed Funds, Inc., v. Dacey, supra, 160 F.2d at page 422; Houghton v. Texas State Life Ins. Co., D.C.N.D. Tex. 1946, 68 F.Supp. 21, 23; McClayton v. W. B. Cassell Co., D.C.D. Md. 1946, 66 F.Supp. 165, 171 et seq. But that is not to say that where such officer is also employed in a separate capacity (one to which he would be entitled to be restored under the Act were it the only position that he had held), he is not entitled to be restored at least to that position which is within the purview of the Act. See Parker v. Boyce, Inc., D.C.," }, { "docid": "9681110", "title": "", "text": "paying job in the machine line. All six appellants worked in the multi-wall department until 1970. In mid-1970, all the employees in the multi-wall department were laid off and given the option of applying for temporary and permanent assignments in other areas of the mill. Under the transfer procedure set forth under the collective bargaining agreement in effect at the time of the multi-wall department closing, as well as during the actionable period, an employee seeking transfer to another department submitted a written request to the personnel department. It was not required that a vacancy in the job desired exist at the time of the request. When a vacancy occurred, the employee who had submitted a transfer request, was minimally qualified, and had the greatest mill seniority was offered the position. Appellants contend that they and other women were told at the time of the multi-wall layoffs that their only options of transfer were the grocery bag department and the tissue converting department. In any event, each appellant requested and was granted a transfer to the position of bag catcher in the grocery bag department pursuant to the transfer procedure outlined above. Effective June 1, 1974, a collective bargaining agreement was entered into which merged the two lines of progression in the grocery bag department and made all job titles gender neutral. This agreement was the one in effect during the charge-filing period. As a result of the merger, bag catchers could either (1) move up through the catcher quality line; or (2) transfer to the machine line above the position of chute loader. Thus, women employees could move up through the latter line of progression without having to work at the entry level position of chute loader. This action apparently was an effort to remove any barrier that the entry level position of chute loader, with its possibly prohibitive physical demands, created to women desiring to move into the machine line of progression. In 1975 and early 1976, Hudson and the various employee unions negotiated two major changes in the 1974-77 collective bargaining agreement. The first, tentatively agreed to" }, { "docid": "8650474", "title": "", "text": "had at least six months of actual service as determined from the company’s occupational records. While the prior agreements had stipulated for plant-wide seniority the actual practice in the plant had been to recognize such seniority only with respect to occupations in which the employee did have prior experience. Whether the practice in the plant prior to the 1945 agreement was to recognize such experience if of less than six months duration is not made clear by the evidence. The district court dismissed the defenses that the petitioners were temporary employees and that it would be a hardship to reemploy them. It also dismissed the counterclaim. The court ruled, however, that the agreement giving union stewards at times of lay-off top seniority effective during their terms of office was inapplicable to the petitioners by reason of the rights which the' Act accorded them as veterans. It concluded, therefore, that as veterans the petitioners were entitled to displace union stewards who were junior to them in point of service despite the respondent’s agreement with the union giving stewards top seniority and that this right extended to all occupations in which the veterans were qualified. There was no intimation by the court that a petitioner’s qualification was to be tested by his classification on the company’s occupational records. The court also ruled, however, that it would order the reinstatement of a veteran in preference to a union steward only if the veteran had greater seniority than others, whether veterans or nouveterans, who were waiting for reinstatement in the same occupation. Because of this ruling the court did not actually order any of the four original petitioners to be reinstated. It awarded money damages to Payne and Frank with respect to a past period during which it found that they should have been assigned to work. All of the award to Payne and part of the award to Frank was based upon the court’s finding that these petitioners should have displaced ului-on stewards during the prior period. $413.14 of the award to Frank, however, is conceded by the respondent to be correct and" }, { "docid": "21011383", "title": "", "text": "candidate nor was he reelected, and another secretary-treasurer was elected each following year. If the plaintiff had returned during his term of office he would have been entitled to re-instatement, as he had not resigned but was granted a leave of absence. It cannot be said that such leave could be granted for more than the unexpired term to which he was elected unless the by-laws of the local Union and the constitution of the International Union with reference to the provisions for election of officers and particularly in this case, the office of Secretary-Treasurer, was amended. This was not done and there is nothing in the Selective Training and Service Act to provide for nullifying the by-laws and the constitution in this regard. The resolution adopted by the defendant Union only assured reinstatement to the plaintiff if he returned from the service during the term of office to which he was elected, and the evidence does not support the contention of the plaintiff that such action, in granting leave, constituted a waiver and estoppel of the defense that the plaintiff here was not bound by the by-laws of the local Union and the constitution of the International Union. The plaintiff’s position was a temporary one, subject to election each year and in the instant case the plaintiff’s rights are limited and are to be determined by the bylaws and constitution. Even if the contract of reemployment could be construed as extending to future years, beyond the next election, such a contract would be without force and effect because it would be contrary to the by-laws. It can also be said that under the by-laws the plaintiff is now ineligible to liold office in the defendant, local Union, through voluntarily transferring his membership to another local. Counsel for the defendants will prepare the necessary findings of fact, conclusions of law, and judgment, to conform with this opinion, and present the same to the Court for its approval, after having served copy of same on opposing counsel." }, { "docid": "7677317", "title": "", "text": "* * * Nor was it an unfair labor practice to replace the striking employees with others in an effort to carry on the business. * * * ” On or prior to October 21, 1935, all of the striking employees had been reinstated in petitioner’s service except Fillinger, Hudson, and the four employees in question here. Fillinger and Hudson were reinstated prior, to the hearing of this cause before the Examiner. It seems settled that at that time petitioner was under no obligation to discharge the men who had been employed to take the place of the strikers merely to make room for them. It was so held in National Labor Relations Board v. MacKay, etc., Co., supra, where the court, on page 345 of 304 U.S., on page 911 of 58 S.Ct., 82 L.Ed. 1381, said: “ * * * And he is not bound to discharge those hired to fill the places of strikers, upon the election of the latter to resume their employment, in order to create places for them. The assurance by respondent to those who accepted employment during the strike that if they so desired their places might be permanent was not an unfair labor practice, nor was it such to reinstate only so many of the strikers as there were vacant places to be filled.” The claim was advanced there, as it is here, that the men were refused reinstatement solely because they were active in the affairs of the Union. If so, it plainly comes within the inhibition of the Act. Referring to these six employees, the Board found: “They were distinguished for their outstanding Union activities.” This finding, if accepted, must be largely upon the testimony of one, Ray Kelsay, International Vice-President of the Union, who testified “they were the Union’s most active members and had assisted in creating and fostering it.” It appears the Union was organized in 1933 and that Kelsay came in contact with the local only occasionally subsequent to its organization. It will be seen his testimony in this respect is a matter of opinion rather than" }, { "docid": "22263704", "title": "", "text": "Id., at 436; see also Reed v. Transportation Union, ante, at 325; Sadlowski, supra, at 112. We considered this basic objective in Finnegan, where several members of a local union who held staff positions as business agents were discharged by the local’s newly elected president. The business agents had been appointed by the incumbent president and had openly supported him in his unsuccessful reelection campaign. They subsequently sought relief under § 102 of the LMRDA, claiming that discharge from their appointed positions constituted an “infringement” of their free speech and equal voting rights as guaranteed by Title I. We held that the business agents could not establish a violation of § 102 because their claims were inconsistent with the LMRDA’s “overriding objective” of democratic union governance. 456 U. S., at 441. Permitting a victorious candidate to appoint his own staff did not frustrate that objective; rather, it ensured a union’s “responsiveness to the mandate of the union election.” Ibid. We thus concluded that the LMRDA did not “restrict the freedom of an elected union leader to choose a staff whose views are compatible with his own.” Ibid. In rejecting the business agents’ claim, we did not consider whether the retaliatory removal of an elected official violates the LMRDA and, if so, whether it is significant that the removal is carried out under a validly imposed trusteeship. It is to these questions that we now turn. A Petitioners argue that Lynn’s Title I rights were not “infringed” for purposes of § 102 because Lynn, like other members of the Local, was not prevented from attending the special meeting, expressing his views on Hawkins’ dues proposal, or casting his vote, and because he remains a member of the Local. Under this view, Lynn’s status as an elected, rather than an appointed, official is essentially immaterial and the loss of union employment cannot amount to a Title I violation. This argument is unpersuasive. In the first place, we acknowledged in Finnegan that the business agents’ Title I rights had been interfered with, albeit indirectly, because the agents had been forced to choose between" }, { "docid": "9604467", "title": "", "text": "LINDLEY, Circuit Judge. Petitioner, Whiting Corporation, who has its main office and plant in the Northern District of Illinois but operates a branch in Norwalk, California, at which some 36 men are employed, seeks a review of an order entered May 14, 1952 by the National Labor Relations Board directing it to' bargain with the International Brotherhood of Boilermakers, Iron Shipbuilders and Helpers of America, Local Number 92, A. F. of L., hereinafter referred to as the union, as the bargaining representative of the production and maintenance employees at the branch. In its; order, the Board determined that on February 16, 1951 arid all times thereafter the union was. the employees’ authorized bargaining representative. The propriety of this finding, in turn, - depends upon the Board’s subordinate finding that the union had been legally selected as the bargaining agent for the employees at an election on October 18, 1950, at which it had been reported that 18 votes had been cast for and 17 against the union. Petitioner, after the intermediate report in this case, filed a motion to reopen the representation proceedings and to have a further hearing therein for the purpose of determining the eligibility of John Norgard to vote at the election, which petitioner had challenged. This motion having been allowed and the rehearing had, the presiding officer concluded, and the Board in its order of May 14, 1952 agreed, that Norgard was eligible. His vote made the majority. Therefore, the Board found that the union had been properly certified as the representative of the employees for collective bargaining, and, further, that' petitioner, having refused to bargain with the union, was guilty of an unfair labor practice. It is this feature of the record with which we are concerned, namely, the question as to whether Norgard was eligible to participate in the election, for, if he was not, the union did not receive a majority, while if he was qualified, the union did prevail. If, upon the scrutiny of the record prescribed by the Act and discussed in N. L. R. B. v. Universal Camera Corp., 340" }, { "docid": "9601686", "title": "", "text": "the terms of the Act to order petitioner’s reemployment in the elective offices of president, director and general manager, it was error for the court to order reemployment in only a segment of petitioner’s former activities with the corporation. There is no doubt that a veteran who held only an elective office with a corporate employer is not entitled to the benefits of the Selective Training and Service Act. See Trusteed Funds, Inc., v. Dacey, supra, 160 F.2d at page 422; Houghton v. Texas State Life Ins. Co., D.C.N.D. Tex. 1946, 68 F.Supp. 21, 23; McClayton v. W. B. Cassell Co., D.C.D. Md. 1946, 66 F.Supp. 165, 171 et seq. But that is not to say that where such officer is also employed in a separate capacity (one to which he would be entitled to be restored under the Act were it the only position that he had held), he is not entitled to be restored at least to that position which is within the purview of the Act. See Parker v. Boyce, Inc., D.C., S.D. Cal.1946, 74 F.Supp. 581. We do not think that because the veteran held an elective office in addition to his other work hfe should therefore be deprived of all of his reemployment rights.* Otherwise the remedial nature of this statute might be severely curtailed. Whether or not this veteran did hold the position of salesmanager, or whether his position as “the whole works” comprehended a position of much larger scope, are questions of fact to be decided by the trial court. After having ascertained what position, other than an elective one, the petitioner held prior to his entry into the armed forces, it is again the function of the trial court to decide on the facts as presented to it whether “the employer’s circumstances have so changed as to make it impossible or. unreasonable to” restore the veteran “to such position or to a position of like seniority, status and pay.” Petitioner on the other hand assigns as errors the court’s findings that the veteran was under a duty to mitigate his damages; that" }, { "docid": "21011382", "title": "", "text": "CLARK, District Judge. The plaintiff seeks reemployment under the terms of the Selective Training and Service Act, 50 U.S.C.A.Appendix, § 308. He was Secretary-Treasurer of Local Union No. 74 of Bakery & Confectionery Workers International Union of America; holding that position by virtue of an election held in January 1942. The term of office to which he was elected expired in January 1943. He enlisted in the United States Naval forces on July 29, 1942. At the time of his enlistment he was granted a leave of absence effective as of the date of enlistment and the President and three of the Trustees passed a resolution pledging his reinstatement on his return from the military service. This resolution was approved at the next regular meeting of the Union, and a temporary secretary was appointed to fill the vacancy. The by-laws of the defendant Union provide for an election at the first meeting of January of each year. The term of office to which the plaintiff was elected expired in January 1943. He was not a candidate nor was he reelected, and another secretary-treasurer was elected each following year. If the plaintiff had returned during his term of office he would have been entitled to re-instatement, as he had not resigned but was granted a leave of absence. It cannot be said that such leave could be granted for more than the unexpired term to which he was elected unless the by-laws of the local Union and the constitution of the International Union with reference to the provisions for election of officers and particularly in this case, the office of Secretary-Treasurer, was amended. This was not done and there is nothing in the Selective Training and Service Act to provide for nullifying the by-laws and the constitution in this regard. The resolution adopted by the defendant Union only assured reinstatement to the plaintiff if he returned from the service during the term of office to which he was elected, and the evidence does not support the contention of the plaintiff that such action, in granting leave, constituted a waiver and estoppel" }, { "docid": "22373160", "title": "", "text": "1973), it does not restrict the freedom of an elected union leader to choose a staff whose views are compatible with his own. Indeed, neither the language nor the legislative history of the Act suggests that it was intended even to address the issue of union patronage. To the contrary, the Act’s overriding objective was to ensure that unions would be democratically governed, and responsive to the will of the union membership as expressed in open, periodic elections. See Wirtz v. Hotel Employees, 391 U. S. 492, 497 (1968). Far from being inconsistent with this purpose, the ability of an elected union president to select his own administrators is an integral part of ensuring a union administration’s responsiveness to the mandate of the union election. Here, the presidential election was a vigorous exercise of the democratic processes Congress sought to protect. Petitioners — appointed by the defeated candidate — campaigned openly against respondent Leu, who was elected by a substantial margin. The Union’s bylaws, adopted, and subject to amendment, by a vote of the union membership, grant the president plenary authority to appoint, suspend, discharge, and direct the Union’s business agents, who have sig nificant responsibility for the day-to-day conduct of union affairs. Nothing in the Act evinces a congressional intent to alter the traditional pattern which would permit a union president under these circumstances to appoint agents of his choice to carry out his policies. No doubt this poses a dilemma for some union employees; if they refuse to campaign for the incumbent they risk his displeasure, and by supporting him risk the displeasure of his successor. However, in enacting Title I of the Act, Congress simply was not concerned with perpetuating appointed union employees in office at the expense of an elected president’s freedom to choose his own staff. Rather, its concerns were with promoting union democracy, and protecting the rights of union members from arbitrary action by the union or its officers. We. therefore conclude that petitioners have failed to establish a violation of the Act. Accordingly, the decision of the Court of Appeals is Affirmed. See," } ]

[ { "docid": "9628734", "title": "", "text": "CLARK, Circuit Judge. Plaintiffs, maintenance employees in defendant’s thirteen-story building in New York City, rented to some thirty-five tenants, brought this action for the recovery of overtime wages, liquidated damages, and counsel fees under § 16(b) of the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 216(b). The District Court ruled that, since “with minor exceptions the building was used by tenants for offices and showrooms,” with “no manufacturing or processing” carried on at the building, plaintiffs were not within the coverage of the Act. Accordingly it dismissed the action, and plaintiffs have appealed. The ten plaintiffs include passenger elevator operators, a freight elevator operator, a porter, a relief elevator operator, watchmen, and firemen. The District Court found that a substantial number of the tenants in the building who occupy offices, storerooms, and showrooms take orders for «goods manufactured elsewhere and sell them to customers within and without the state and are thus clearly engaged in interstate commerce. But this doesliot mean that the plaintiffs, too, are engaged in interstate commerce, for their activities are not “actually in or so closely related to the movement of the commerce as to be a part of it.” McLeod v. Threlkeld, 319 U.S. 491, 497, 63 S.Ct. 1248, 1251, 87 L.Ed. 1538. The Fair Labor Standards Act, however, regulates wages and hours not only of employees who are “engaged in commerce,” but also of those engaged “in the production of goods for commerce.” §§ 6, 7, 29 U.S.C.A. §§ 206, 207. We must ascertain, therefore, whether or not the plaintiffs here are covered by virtue of this latter phrase. The Supreme Court has held that service employees of a building occupied by tenants engaged in manufacturing are in an occupation necessary to the production of goods for commerce and therefore within the coverage of the Act. A. B. Kirschbaum Co. v. Walling, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638. In Callus v. 10 East Fortieth Street Building, Inc., 2 Cir., 146 F.2d 438, this court interpreted the Kirschbaum case to imply coverage of maintenance employees of a building of which" } ]

[ { "docid": "19066838", "title": "", "text": "306 U.S. 601, 59 S. Ct. 668, 83 L.Ed. 1014. Also the fact that activities are intrastate in character, does not prevent those activities from “affecting commerce.” N. L. R. B. v. J. L. Hudson Co., 6 Cir., 135 F.2d 380, certiorari denied 320 U.S. 740, 64 S.Ct. 40, 88 L.Ed. 439; N. L. R. B. v. Vulcan Forging Co., 6 Cir., 188 F.2d 927, 930. In the Vulcan Forging Co. case we said: “Activities, intrastate in character when separately considered, fall within the ambit of control by Congress, if so closely and substantially related to interstate commerce that their control is essential or appropriate for its protection from burden or obstruction.” Compare: Kirschbaum v. Walling, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638; Borden Co. v. Bor ella, 325 U.S. 679, 65 S.Ct. 1223, 89 L.Ed. 1865. In our opinion, the work of respondent’s employees, although local in nature, had such a relationship to the interstate business of the tenants as to affect commerce. A labor dispute involving such employees would tend to burden or obstruct the free flow of commerce of the tenants therein. Respondent relies upon 10 East 40th St. Bldg. v. Callus, 325 U.S. 578, 65 S.Ct. 1227, 89 L.Ed. 1806, which in distinguishing but not overruling Kirschbaum v. Walling, supra, held that running an office building, exclusively devoted to the purpose of housing all the usual miscellany of offices, had many practical differences from operating a manufacturing building such as was involved in the Kirschbaum case. It pointed out that in each case it was a question of degree in determining whether the particular activities were necessary to the production of goods for commerce. See: Martino v. Michigan Window Cleaning Co., 327 U.S. 173, 66 S.Ct. 379, 90 L.Ed. 603, which was decided subsequent to the decision in the Callus case. The Callus case involved the Fair Labor Standards Act, not the National Labor Relations Act. Jurisdiction under the Fair Labor Standards Act is dependent upon an employee engaging “in the production of goods for commerce”. Sections 206, 207, Title 29, U.S.C.A. Under the" }, { "docid": "6172494", "title": "", "text": "absence, in view of the remoteness of plaintiff’s work from the actual production of the goods for commerce, and in view of his employment by an independent contractor and the essentially local nature of restaurants and cafeterias generally, we must hold his work to be local in nature, even though there is one factor in his favor, that of employment solely in the same building where the production is carried on. Congress might have considered that hour and wage conditions throughout such a building should meet a common minimum and have so provided. That has not, however, been made the criterion, but rather whether the work is “necessary to the production” or “local”. The combination of factors here seems better to fit the “local” label. Judgment may be entered for the defendant, dismissing the action. There may be a question whether the 1947 Amendments to the Act, 29 U.S. C.A. § 216, permit only recovery of unpaid overtime, without liquidated damages, etc., in such a “windfall” ease, where both parties in good faith thought the Act not applicable, and the total pay would have been sufficient to more than meet the minimum requirements of the Act had hours and hourly rates been set with the Act in mind. Kirschbaum Oo. v. Walling, Adm’r, 1942, 316 U.S. 517, 62 S.Ct. 1116, 1121, 86 L.Ed. 1638. Roland Electrical Co. v. Walling, Adm’r, 1946, 326 U.S. 657, 66 S.Ct. 413, 90 L.Ed. 383. Kirschbaum Co. v. Walling, Adm’r, supra, n. 2; Martino v. Michigan Window Cleaning Co., 1946, 327 U.S. 173, 66 S.Ct. 379, 90 L.Ed. 603; Borden Co. v. Borella, 1945, 325 U.S. 679, 65 S. Ct. 1223, 89 L.Ed. 1865, 161 A.L.R. 1258; 10 East 40th St. Building, Inc. v. Callus, 1945, 325 U.S. 578, 65 S.Ct 1227, 89 L.Ed. 1806, 161 A.L.R. 1263; D. A. Schulte, Inc. v. Gangi et al., 1946, 328 U.S. 108, 66 S.Ct. 925, 90 L.Ed. 1114, 167 A.L.R. 208. Consolidated Timber Co. v. Womack, 9 Cir., 1942, 132 F.2d 101; Hanson v. Lagerstrom, 8 Cir., 1943, 133 F.2d 120; Kuhn v. Canteen, D.C.N.D.Ill.W.D., Nov. 25," }, { "docid": "19120633", "title": "", "text": "F.2d 385, certiorari denied 328 U.S. 858, 66 S.Ct. 1351, 90 L.Ed. 1629; Fleming v. Hawkeye Pearl Button Co., 8 Cir., 113 F.2d 52; Lofther v. First National Bank of Chicago, 7 Cir., 138 F.2d 299; Fox v. Summit King Mines, 9 Cir., 143 F. 2d 926; Walling v. Consumers Co., 7 Cir., 149 F.2d 626. No fixed and unyielding rule has been blueprinted for determining in every case whether an employee is engaged in the production of goods for commerce, within the meaning of the Act. Each case must depend upon its own facts. But there are certain general guides. It is not necessary that the employee come in actual physical contact with the goods produced. It is enough if his work constitutes an essential or useful part of an integrated effort by which goods are produced for commerce. It meets the requirements of the Act if the work of the employee has such “close and immediate tie with the process of production for commerce” that it is in effect a part of it. The criterion is-necessarily one of degree. Kirschbaum v. Walling, 316 U. S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638; Warren-Bradshaw Drilling Co. v. Hall, 317 U.S. 88, 63 S.Ct. 125, 87 L.Ed. 83; Walton v. Southern Package Corp., 320 U.S. 540, 64 S.Ct. 320, 88 L.Ed. 298; Armour & Co. v. Wantock, 323 U.S. 126, 65 S.Ct. 165, 89 L. Ed. 118; Borden Co. v. Borella, 325 U.S. 679, 65 S.Ct. 1223, 89 L.Ed. 1865, 161 A.L. R. 1258; Roland Elec. Co. v. Walling, 326 U.S. 657, 66 S.Ct. 413, 90 L.Ed. 383; Mid-Continent Pipe Line Co. v. Hargrave, 10 Cir., 129 F.2d 665; Rucker v. First National Bank of Miami, 10 Cir., 138 F.2d 699, certiorari denied 321 U.S. 769, 64 S.Ct. 524, 88 L.Ed. 1065; Walling v. Amidon, 10 Cir., 153 F.2d 159. Here, certain agricultural commodities are produced on land irrigated with water furnished by the irrigation company. The agricultural commodities are processed and the finished products move in the channels of interstate commerce. Irrigation of the land is necessary in order" }, { "docid": "14110626", "title": "", "text": "with salvaged material received from Modern. It is not at all clear that material sold by Modem was ever resold to New Haven Board and Carton Company. Certainly, we cannot assume that critical fact. Second, the Secretary failed to show that any of the use-plaintiffs ever collected the salvaged cardboard and waste paper or made delivery thereof to Bohager & Sons. Proof of employment of the use-plaintilfs in the production of goods for commerce was clearly absent. (c) Were Their Employments “Closely Related” and “Directly Essential” to the Production of Goods for Commerce? Whether the use-plaintiffs in these suits were “engaged in any closely related process or occupation directly essential to the production of goods for commerce” is the principal issue in this case. Relying upon testimony describing inconveniences and possible work stoppages anticipated by six of Modern’s customers if trash removal service were not available on a regular basis, the District Court found that the use-plaintiffs were engaged in work “closely related” and “directly essential” to the production of goods for commerce and held them within the coverage of the Act. Consideration of the facts of record in the light of cases interpreting the language of the Act convinces us that the trial judge erred in this holding and that the coverage of the Act should not be extended to include these employees. Basic to consideration and determination of this phase of the present case are three decisions in which the Supreme Court applied the language of section 3(j) of the Act prior to its amendment in 1949: Kirschbaum Co. v. Walling, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638 (1942); Borden Co. v. Borella, 325 U.S. 679, 65 S.Ct. 1223, 89 L.Ed. 1865 (1945); and 10 East 40th St. Co. v. Callus, 325 U.S. 578, 65 S.Ct. 1227, 89 L.Ed. 1806 (1945). In Kirschbaum the meaning of the phrase “necessary to the production [of goods for commerce].” was examined and it was held that coverage under the Act extended to employees of the owner of a loft building who were engaged in operation and maintenance thereof, where" }, { "docid": "21852701", "title": "", "text": "necessary to interstate commerce than the supplying of fuel. The cases most controlling and analogous appear to be in accord with this view. The Supreme Court, in Kirschbaum v. Walling, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638, held the Act applicable to employees of an employer who merely rented his building to tenants who produced garments which were sold and distributed outside the State. These employees had nothing directly to do with the production of these goods, nor with the movement of them into interstate commerce. These employees had the sole function of maintaining the building in which these garments were produced. The employees in question were elevator operators, watchmen, porters, carpenters and engineers. The Supreme Court held that such employees were providing an important of goods for commerce. It said: “Without light and heat and power the tenants could not engage * * * in the production of goods for interstate commerce. “The maintenance of a safe, habitable building is indispensable to that activity.” In that case the employees were providing services important to those involved in interstate commerce. Likewise in our case here the employees were providing an important service to those involved in interstate commerce. In our ease, the important service is the delivery of the fuel which enables these people to carry on their interstate activities which, as mentioned earlier, were and are numerous. A case similar to Kirschbaum is Schulte Inc. v. Gangi, 328 U.S. 108, 66 S.Ct. 925, 90 L.Ed. 1114. The Supreme Court, dealing with similar facts as in Kirschbaum, held that the maintenance employees were covered by the Act. A third Supreme Court case is Alstate Construction Co. v. Durkin, 345 U.S. 13, 73 S.Ct. 565, 97 L.Ed. 745. In that case, defendant produced a road building material called amesite. This substance was used in building interstate roads, highways, and railways. The Defendant’s employees produced this amesite, delivered it to necessary locations and used it in repairing the roads, etc. The District Court held that all these employees were engaged in the production of goods for commerce, including the employees" }, { "docid": "10436923", "title": "", "text": "moored at the pier. It is therefore immaterial that Slover did none of the actual repair work. His acknowledged duties as watchman for Patapsco’s premises were so closely related to Patapsco’s business of repairing barges that he must be considered as being “engaged in the production of goods for commerce” within the meaning of the Act. In Walling v. Sondock, 5 Cir., 132 F.2d 77, certiorari denied 318 U.S. 772, 63 S.Ct. 769, Circuit Judge Holmes ably discusses the application of the Act to watchmen. At page 78 of 132 F.2d, he states: “Whether or not the Act, 29 U.S.C.A. § 151 et seq., is applicable in a given instance depends upon the character of the duties performed by the employee; and, if the work of the employee has such close and immediate connection with the process of production for commerce as to be an essential part of it, such employee is engaged in the production of goods for commerce within the meaning of the Act. Similarly, if an employee’s services are part of and contribute materially to the consummation of transactions in interstate commerce, the employee is engaged in commerce as defined by the Act. Upon these principles, those watchmen charged with the protectection and preservation of the buildings and machinery used to produce goods for commerce perform duties having an essential relationship to the process of producing and distributing goods in interstate commerce.” Innumerable other cases also hold that watchmen who are employed to guard and protect property for employers engaged in the production of goods for commerce come within the provisions of the Act. See A. B. Kirschbaum Co. v. Walling, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638; Mid-Continent Pipe Line Corp. v. Hargrave, 10 Cir., 129 F.2d 655; Johnson v. Phillips-Buttorff Co., 1942, 178 Tenn. 559, 160 S.W.2d 893, certiorari denied 317 U.S. 648, 63 S.Ct. 43; Wood v. Central Sand & Gravel Co., D.C., 33 F.Supp. 40; Holland, Adm’r v. Amoskeag Mach. Co., D.C., 44 F.Supp. 884; Lefevers v. General Export, Iron & Metal Co., D.C., 36 F.Supp. 838; Reeves v. Howard County" }, { "docid": "1495630", "title": "", "text": "255(a). . The district court did not specifically determine what proportion of the policyholders of Daniel Insurance Company were out-of-state residents during the suit period, other than to denominate it as “substantial.” The only testimony on this matter indicated that approximately one-seventh of the policyholders were non-Arkansas residents. It is settled, and defendant does not contest, that an insurance company which conducts a substantial portion of its business transactions across state lines is engaged in commerce within the meaning of the Fair Labor Standards Act. United States v. South-Eastern Underwriters Association, 322 U.S. 533, 64 S.Ct. 1162, 88 L.Ed. 1440 (1944) ; Wirtz v. First State Abstract & Insurance Co., 362 F.2d 83 (8th Cir. 1966). . The district court also included in its single establishment definition a third corporation wholly owned by Mrs. Julia Mae Daniel and her daughter, Daniel Monument Company, Inc., whose sales office and display yard is located approximately one mile from the funeral home building in Searcy. The parties agree, however, that consideration of the monument company in the definition of the establishment for purposes of this appeal is immaterial, since its stipulated gross annual income is so small in comparison to that of the funeral home and insurance company as to have no mathematical effect on the critical 75 percent retail sales or services test of 29 U.S.C. § 213(a) (2). . Plaintiffs Gilreath and Johnson were held to be covered under the Act for the reason that their services — the custodial care and cleaning of the insurance company’s separate workroom — bore a dose and essential relationship to the functioning of the insurance company in which productive operations for commerce were carried on. See Borden Co. v. Borella, 325 U.S. 679, 65 S.Ct. 1223, 89 L.Ed. 1865 (1945) ; A. B. Kirschbaum Co. v. Walling, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638 (1942) ; Union National Bank of Little Rock, Ark. v. Durkin, 207 F.2d 848 (8th Cir. 1953) ; Darr v. Mutual Life Insurance Company of New York, 169 F.2d 262 (2d Cir.), cert. denied, 335 U.S. 871, 69" }, { "docid": "2874473", "title": "", "text": "and 6.5% of such area was occupied by concerns carrying on physical production of goods for commerce in the building. In Borden Co. v. Borella, 325 U.S. 679, 65 S.Ct. 1223, 89 L.Ed. 1865 (1945), it was held that custodial and service employees of an office building principally occupied by the executive offices of a concern which owned the building and which carried on extensive production of goods for commerce elsewhere were engaged in the production of goods for commerce. In D. A. Schulte Co. v. Gangi, 328 U.S. 108, at page 118, 66 S.Ct. 925, at page 930, 90 L.Ed. 1114 (1946), the Court, though dealing with a different problem, said: “ * * * While the Wage-Hour Act covers employees engaged in the production of goods for commerce, a maintenance employee working for a building corporation which furnishes loft space to tenants can hardly be so engaged unless an adequate proportion of the tenants of that building are so engaged. Kirschbaum [Co.] v. Walling, 316 U.S. at page 524 [62 S.Ct. 1116, 86 L.Ed. 1638]; Walling v. Jacksonville Paper Co., 317 U.S. 564, 572 [63 S.Ct. 332, 87 L.Ed. 460].” Prom these cases we conclude that building employees are, by virture of the nature of the work carried on in the building, engaged in the production of goods for commerce (1) if a sufficiently large portion of the space in the building is used for the physical production of goods for commerce (Kirschbaum) or (2) if a sufficiently large portion of the space in the building is occupied by the offices of a concern which owns the building and which is engaged elsewhere in the physical production of goods for commerce (Borden Co.). But we also conclude that building employees are not engaged in the production of goods for commerce if the building is occupied by a miscellany of tenants even though a substantial portion of the space is occupied by offices of tenants which are engaged elsewhere in the production of goods for commerce (Callus). In the instant case, defendant occupies about 11% of the space in" }, { "docid": "1495631", "title": "", "text": "of the establishment for purposes of this appeal is immaterial, since its stipulated gross annual income is so small in comparison to that of the funeral home and insurance company as to have no mathematical effect on the critical 75 percent retail sales or services test of 29 U.S.C. § 213(a) (2). . Plaintiffs Gilreath and Johnson were held to be covered under the Act for the reason that their services — the custodial care and cleaning of the insurance company’s separate workroom — bore a dose and essential relationship to the functioning of the insurance company in which productive operations for commerce were carried on. See Borden Co. v. Borella, 325 U.S. 679, 65 S.Ct. 1223, 89 L.Ed. 1865 (1945) ; A. B. Kirschbaum Co. v. Walling, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638 (1942) ; Union National Bank of Little Rock, Ark. v. Durkin, 207 F.2d 848 (8th Cir. 1953) ; Darr v. Mutual Life Insurance Company of New York, 169 F.2d 262 (2d Cir.), cert. denied, 335 U.S. 871, 69 S.Ct. 166, 93 L.Ed. 415 (1948). . In its present form, 29 U.S.C. § 213(a) (2) reads in pertinent part as follows: “(a) The provisions of sections 206 [minimum wage] and 207 [maximum hours] of this title shall not apply with respect to— * * * * * (2) any employee employed by any retail or service establishment, more than 50 per centum of which establishment’s annual dollar volume of sales of goods or services is made within the State in which the establishment is located, if such establishment— (i) is not in an enterprise described in section 203 (s) of this title, or * * * Hi * (iv) is in such an enterprise and has an annual dollar volume of sales * * * which is less than $250,000. A ‘retail or service establishment’ shall mean an establishment 75 per centum of whose annual dollar volume of sales of goods or services (or of both) is not for resale and is recognized as retail sales or services in the particular industry; * *" }, { "docid": "19120634", "title": "", "text": "The criterion is-necessarily one of degree. Kirschbaum v. Walling, 316 U. S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638; Warren-Bradshaw Drilling Co. v. Hall, 317 U.S. 88, 63 S.Ct. 125, 87 L.Ed. 83; Walton v. Southern Package Corp., 320 U.S. 540, 64 S.Ct. 320, 88 L.Ed. 298; Armour & Co. v. Wantock, 323 U.S. 126, 65 S.Ct. 165, 89 L. Ed. 118; Borden Co. v. Borella, 325 U.S. 679, 65 S.Ct. 1223, 89 L.Ed. 1865, 161 A.L. R. 1258; Roland Elec. Co. v. Walling, 326 U.S. 657, 66 S.Ct. 413, 90 L.Ed. 383; Mid-Continent Pipe Line Co. v. Hargrave, 10 Cir., 129 F.2d 665; Rucker v. First National Bank of Miami, 10 Cir., 138 F.2d 699, certiorari denied 321 U.S. 769, 64 S.Ct. 524, 88 L.Ed. 1065; Walling v. Amidon, 10 Cir., 153 F.2d 159. Here, certain agricultural commodities are produced on land irrigated with water furnished by the irrigation company. The agricultural commodities are processed and the finished products move in the channels of interstate commerce. Irrigation of the land is necessary in order to produce the agricultural commodities. The employees in question perform physical work which is indispensable to the irrigation of the land. Without their work, the land cannot be irrigated, the agricultural commodities cannot be produced, and therefore no finished products can move in interstate commerce. The relationship of the employees to the production of the finished products which move in interstate commerce is not objectionably remote or tenuous. Instead, their work is vital and essential to the integrated effort which brings about the movement of the finished products in commerce. ' It is manifestly clear that the employees are engaged in a process or occupation necessary to the production of goods for commerce, within the meaning of the Act. Reynolds v. Salt River Valley Water Users Ass’n., 9 Cir., 143 F.2d 863, certiorari denied 323 U.S. 764, 65 S.Ct. 117, 89 L.Ed. 611; Walling v. Friend, 8 Cir., 156 F.2d 429; Meeker Cooperative Light & Power Ass’n v. Phillips, 8 Cir., 158 F.2d 698; McComb v. Super-A Fertilizer Works, 1 Cir., 165 F.2d 824. We" }, { "docid": "2874472", "title": "", "text": "manufacturing in the buildings are engaged in the production of goods for commerce within the meaning of the Act. The Court said that (p. 525, 62 S.Ct. p. 1121) “ * * * the work of the employees in these cases had such a close and immediate tie with the process of production for commerce, and was therefore so much an essential part of it, that the employees are to be regarded as engaged in an occupation 'necessary to the production of goods for commerce’.” In 10 East 40th St. Co. v. Callus, 325 U.S. 578, 65 S.Ct. 1227, 89 L.Ed. 1806 (1945), i(; was held that maintenance, custodial and service employees of an office building having a miscellany of tenants were not engaged in the production of goods for commerce. The Court reached this result in spite of the fact that, as pointed out by the dissent at pp. 586-587, 26% of the rentable area was occupied by executive offices of mining and manufacturing concerns engaged elsewhere in the production of goods for commerce and 6.5% of such area was occupied by concerns carrying on physical production of goods for commerce in the building. In Borden Co. v. Borella, 325 U.S. 679, 65 S.Ct. 1223, 89 L.Ed. 1865 (1945), it was held that custodial and service employees of an office building principally occupied by the executive offices of a concern which owned the building and which carried on extensive production of goods for commerce elsewhere were engaged in the production of goods for commerce. In D. A. Schulte Co. v. Gangi, 328 U.S. 108, at page 118, 66 S.Ct. 925, at page 930, 90 L.Ed. 1114 (1946), the Court, though dealing with a different problem, said: “ * * * While the Wage-Hour Act covers employees engaged in the production of goods for commerce, a maintenance employee working for a building corporation which furnishes loft space to tenants can hardly be so engaged unless an adequate proportion of the tenants of that building are so engaged. Kirschbaum [Co.] v. Walling, 316 U.S. at page 524 [62 S.Ct. 1116, 86" }, { "docid": "11137955", "title": "", "text": "property in the two communities are protected by the firemen involved in the instant case. On the basis of the above facts, the trial court held, and we think properly so, that the community firemen were covered by the Act. The court made the following relevant findings of fact: (1) General Electric was engaged in the production of goods for commerce since a large part of the plutonium produced at Hanford Works was distributed to points outside the State of Washington. (2) Although the firemen were not directly protecting the plant area, they were protecting the administrative portion of the plant and were therefore engaged in an occupation closely related and directly essential to the production of goods for commerce. (3) The firemen guarded and protected instrumentalities of commerce, namely, a railroad, a telephone exchange, an express depot, and bus and freight terminals. General Electric concedes that it was engaged in the production of goods for commerce. It contends, however, that even though it produces goods for commerce, the duties of the community firemen do not bear such a relationship to that production as to bring them within the coverage of the Act. An employee is covered by the Act as amended if he is in an occupation “closely related” and “directly essential” to the production of goods for commerce. The employee’s work need not be indispensable to production. Roland Electric Company v. Walling, 1945, 326 U.S. 657, 66 S.Ct. 413, 90 L.Ed. 383. Watchmen, engineers, firemen, carpenters and other maintenance personnel employed in a building where goods are physically manufactured or processed for commerce come within the coverage of the Act. A. B. Kirschbaum Co. v. Walling, 1942, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638; Armour & Co. v. Wantock, 1944, 323 U.S. 126, 65 S.Ct. 165, 89 L.Ed. 118. In Borden Company v. Borella, 1945, 325 U.S. 679, 65 S.Ct. 1223, 89 L.Ed. 1865, the Supreme Court not only reaffirmed its position in the Kirschbaum case but extended it. It was there held that officers and administrative personnel working in an office building owned and operated" }, { "docid": "11137956", "title": "", "text": "not bear such a relationship to that production as to bring them within the coverage of the Act. An employee is covered by the Act as amended if he is in an occupation “closely related” and “directly essential” to the production of goods for commerce. The employee’s work need not be indispensable to production. Roland Electric Company v. Walling, 1945, 326 U.S. 657, 66 S.Ct. 413, 90 L.Ed. 383. Watchmen, engineers, firemen, carpenters and other maintenance personnel employed in a building where goods are physically manufactured or processed for commerce come within the coverage of the Act. A. B. Kirschbaum Co. v. Walling, 1942, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638; Armour & Co. v. Wantock, 1944, 323 U.S. 126, 65 S.Ct. 165, 89 L.Ed. 118. In Borden Company v. Borella, 1945, 325 U.S. 679, 65 S.Ct. 1223, 89 L.Ed. 1865, the Supreme Court not only reaffirmed its position in the Kirschbaum case but extended it. It was there held that officers and administrative personnel working in an office building owned and operated by a producer of goods for commerce are actually engaged in the production of goods, and employees who service and maintain such building are engaged in an occupation necessary to that production and come within the coverage of the Act. The factual situation of this and the Borden case is similar. Just as the heart of the Borden enterprise lies in its central office building where the entire business was supervised, managed and controlled, so here the heart of Hanford Works lies in the administrative area located in Richland and North Richland. Substantially the same activities carried on in the Borden office building were carried on in the Han-ford administrative offices. The language of the Supreme Court is particularly apt. “In this building the directors meet and the corporate officers conceive and direct the policies of the company. Although geographically divorced from the manufacturing plants, employees working in this building dictate, control and coordinate every step of the manufacturing processes in the individual factories. By means of direct teletype wires, they maintain detailed and meticulous" }, { "docid": "6312877", "title": "", "text": "by reading the word ‘necessary’ in the highly restrictive sense of ‘indispensable,’ ‘essential,’ and ‘vital’ — words it finds in previous pronouncements of this Court dealing with this clause. Kirschbaum Co. v. Walling, 316 U.S. 517, 524-526, 62 S.Ct. 1116, 1120, 1121, 86 L.Ed. 1638; Overstreet v. North Shore Corp., 318 U.S. 125, 129, 130, 63 S.Ct. 494, 497, 498, 87 L.Ed. 656. These and other cases, says petitioner, indicate that in applying the Act a distinction must be made between those processes or occupations which an employer finds advantageous in his own plan of production and those without which he could not practically produce at all. Present respondents, it contends, clearly fall within the former category because soap can be and in many other plants is produced without the kind of fire protection which these employees provide. “The argument would give an unwarranted rigidity to the application of the word ‘necessary/ which has always been recognized as a word to be harmonized with its context. See McCulloch v. Maryland, 4 Wheat. 316, 413, 414, 4 L.Ed. 579. No hard and fast rule will tell us what can be dispensed with in ‘the production of goods.’ All depends upon the detail with which that bare phrase is clothed. * * * What is required is a practical judgment as to whether the particular employer actually operates the work as part of an integrated effort for the production of goods.” In 10 East 40th Street Building, Inc., v. Callus, 325 U.S. 578, 65 S.Ct. 1227, 1229, 89 L.Ed. 1806, 161 A.L.R. 1263, the court was concerned with the maintenance employees of an office building used for offices by every variety of tenants including some producers for interstate commerce. And it held that they did not have such a close and immediate tie with the process of production, as to be deemed engaged in an operation “necessary for the production” of goods for commerce within the meaning of the Act. In Borden Company v. Borella et al., 325 U.S. 679, 65 S.Ct. 1223, 89 L.Ed. 1865, 161 A.L.R. 1258, the maintenance employees" }, { "docid": "3469929", "title": "", "text": "to be applied are persuasive of the conclusion, which the legislative history supports, S. Rept. No. 884, 75th Cong. 1st Sess., pp. 7 and 8; H. Rept. No. 2738 ; 75th Cong. 3rd Sess., p. 17, that the ‘production for commerce’ intended includes at least production of goods, which, at the time of production, the employer, according to the normal course of his business, intends or expects to move in interstate commerce although, through the exigencies of the business, all of the goods may not thereafter actually enter interstate commerce.” The facts disclose that the employees of defendants were engaged in work necessary to the production of goods (buses) in Arkansas. At the time such work was being done the defendants knew that the goods (buses) were destined to move in interstate commerce to the state where they were to be used. In such operations the defendants were and are subject to the provisions of the Act, unless exempted therefrom by Section 13(a) (2), U.S.C.A. Title 29, Section 213 (a) (2). See Enterprise Box Co. v. Fleming, 5 Cir., 125 F.2d 897; Warren-Bradshaw Drilling Co. v. Hall, Agent, et al., 317 U.S. 88, 63 S.Ct. 125, 87 L.Ed. -. (2) Were and are the defendants operating a service establishment within the exemption granted by Section 13(a) (2) of the Act? The section reads: “The provisions of sections 206 and 207 of this title shall not apply with respect to * * * any employee engaged in any retail or service establishment the greater part of whose selling or servicing is in intrastate commerce.” U.S.C.A. Title 29, Section 213(a) (2). The Circuit Court of Appeals for the Eighth Circuit in its opinion in the case of Musteen et al. v. Johnson et al., 8 Cir., 133 F.2d 106, 108, after referring to the cases of A. B. Kirschbaum Co. v. Walling, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638; Overnight Motor Transp. Co., Inc., v. Missel, 316 U.S. 572, 62 S.Ct. 1216, 86 L.Ed. 1682; Warren-Bradshaw Drilling Co. v. Hall, 317 U.S. 88, 63 S.Ct. 125, 87 L.Ed. —; and" }, { "docid": "8706769", "title": "", "text": "contends that the classification by the municipality of its business as local for license tax purposes is persuasive evidence that it should be considered one of the class of establishments which renders a retail service. The district court took this fact into consideration but did not find it so. We agree with the district court. It is well settled that an enterprise is not free from federal regulation simply because it may be subject to taxation by a State or its subdivisions. But a classification made by a State or its subdivisions for such purposes is not binding upon Congress and, indeed, in this instance cannot affect the classification which that body has itself made for wholly different purposes. We are satisfied that the court did not err in holding that the defendant’s business is not entitled to exemption from the Act as a service establishment. The judgment of the district court will be affirmed. . The pertinent provisions of § 3 of the Fair Labor Standards Act are: “(b) ‘Commerce’ means trade, commerce, transportation, transmission, or communication among the several States or between any State and any place outside thereof.” 29 U.S.C.A. § 203(b). . Kirschbaum Co. v. Walling, 1942, 316 U.S. 517, 524, 62 S.Ct. 1116, 86 L.Ed. 1638; Walling v. Jacksonville Paper Co., 1943, 317 U.S. 564, 571-572, 63 S.Ct. 332, 87 L.Ed. 460; Mitchell v. C. W. Vollmer & Co., 1955, 349 U.S. 427, 429, 75 S.Ct. 860, 99 L.Ed. 1196; Mitchell v. Lublin, McGaughy & Ass’n, 1959, 358 U.S. 207, 211-212, 79 S.Ct. 260, 3 L.Ed. 2d 243. . Kirschbaum Co. v. Walling, 1942, 316 U.S. 517, 523, 62 S.Ct. 1116, 86 L.Ed. 1638. . Compare McLeod v. Threlkeld, 1943, 319 U.S. 491, 497, 63 S.Ct. 1248, 87 L.Ed. 1538; 10 East 40th St. Co. v. Callus, 1945, 325 U.S. 578, 65 S.Ct. 1227, 89 L.Ed. 1806; Borden Co. v. Borella, 1945, 325 U.S. 679, 65 S.Ct. 1223, 89 L.Ed. 1865; Mitchell v. C. W. Vollmer & Co., 1955, 349 U.S. 427, 429, 75 S.Ct. 860, 99 L.Ed. 1196; Mitchell v. H. B. Zachry Co.," }, { "docid": "3698699", "title": "", "text": "that despite this, the work done by these employees was “professional,” and hence exempt from the coverage of the Act. I. Were the employees “engaged in the production of goods for commerce” within the meaning of the Fair Labor Standards Act? We think that the Supreme Court has decided this question for us. In Borden Co. v. Borella, 1945, 325 U.S. 679, 65 S.Ct. 1223, 1225, 89 L.Ed. 1865, the Court said production of goods “is not simply the manual, physical labor involved in changing the form or utility of a tangible article. * * * He who conceives or directs a productive activity is as essential to that activity as the one who physically performs it.” Id., 325 U. S. at page 683, 65 S.Ct. at page 1225. And in Mitchell v. Lublin, McGaughy & Associates, 1959, 358 U.S. 207, 79 S.Ct. 260, 263, 3 L.Ed.2d 243, the respondent was an architectural and consulting engineering firm which was hired to design public, industrial and residential projects and to prepare plans and specifications necessary for this construction. It had offices in Norfolk, Virginia and Washington, D. C., but many of its projects and clients were located outside Virginia and the District of Columbia. Much of its work related to government contracts and these required respondent firm to produce plans, specifications, drawings and designs which were sent out of the state to prospective builders. The “architects and engineers” were classified as “professional employees,” and hence exempted by the provisions of § 13(a) (1) of the Act. The “draftsmen” were grouped with the “fieldman, clerks and stenographers,” as nonprofessional employees and held subject to the Act. Mr. Chief Justice Warren then says: “The question at issue is whether these non-professional employees are ‘engaged in commerce’ as that term is used in §§ 6 and 7 of the Act, 29 U.S.C. §§ 206, 207, 29 U.S.C.A. §§ . 206, 207. To determine the answer to this question, we focus on the activities of the employees and not on the business of the employer. Kirschbaum Co. v. Walling, 316 U.S. 517, 62 S.Ct. 1116," }, { "docid": "14110627", "title": "", "text": "them within the coverage of the Act. Consideration of the facts of record in the light of cases interpreting the language of the Act convinces us that the trial judge erred in this holding and that the coverage of the Act should not be extended to include these employees. Basic to consideration and determination of this phase of the present case are three decisions in which the Supreme Court applied the language of section 3(j) of the Act prior to its amendment in 1949: Kirschbaum Co. v. Walling, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638 (1942); Borden Co. v. Borella, 325 U.S. 679, 65 S.Ct. 1223, 89 L.Ed. 1865 (1945); and 10 East 40th St. Co. v. Callus, 325 U.S. 578, 65 S.Ct. 1227, 89 L.Ed. 1806 (1945). In Kirschbaum the meaning of the phrase “necessary to the production [of goods for commerce].” was examined and it was held that coverage under the Act extended to employees of the owner of a loft building who were engaged in operation and maintenance thereof, where the tenants were principally engaged in the production of clothing for shipment in interstate commerce. The Court reasoned that, although the owner was in no way affiliated with the tenants and did not produce goods for commerce, the “work of the employees * * * had such a close and immediate tie with the process of production for commerce, and was therefore so much an essential part of it * * *” that the employees’ occupations were “necessary” to such production. In the Borden Co. case a similar conclusion was reached in holding the Act applicable to porters, elevator operators and night watchmen employed in the New York City office building owned by Borden Company, an interstate producer of food products, and largely tenanted by that company’s central offices, even though no production facilities were located in the building. The extensive and detailed supervision, management and control of operations maintained by executives and administrators located in the building were found to be just as essential to the productive activity of Borden’s scattered operating facilities as" }, { "docid": "1495625", "title": "", "text": "in commerce within the meaning of the Fair Labor Standards Act except during the quarterly premium assessment months and one-half of each succeeding month. The first argument advanced by plaintiffs is that the district court improperly ignored a stipulation of the parties that, “at all times material to this law suit,” Daniel Insurance Company was engaged in interstate commerce. Coverage under the Fair Labor Standards Act, however, is dependent upon the character of the activities of each individual employee, not upon the nature of the employer’s business. Mitchell v. Lublin, McGaughy & Associates, 358 U.S. 207, 213, 79 S.Ct. 260, 3 L.Ed.2d 243 (1959); Walling v. Jacksonville Paper Co., supra, 317 U.S. at 571-572, 63 S.Ct. 332; A. B. Kirschbaum Co. v. Walling, 316 U.S. 517, 524, 62 S.Ct. 1116, 86 L.Ed. 1638 (1942); Wirtz v. First State Abstract & Insurance Co., 362 F.2d 83, 87 (8th Cir. 1966); Chambers Construction Co. v. Mitchell, 233 F.2d 717, 720 (8th Cir. 1956). To be sure, the distinction drawn is not absolute and exclusive. “In determining whether an individual employee is within the coverage of the wage and hours provisions, however, the relationship of an employer’s business to commerce or to the production of goods for commerce may sometimes be an important indication of the character of the employee’s work.” 29 C.F.R. § 776.2 (b) (footnote omitted). See Borden Co. v. Borella, 325 U.S. 679, 65 S.Ct. 1223, 89 L.Ed. 1865 (1945). The district court concluded in this case that the insurance company was engaged in commerce for a total of 6 months in each year, and also that plaintiffs were so engaged in commerce by performing work for the insurance company during that same period of time. But it does not follow that the identity of these two periods of time was mandatory. The parties did not stipulate as to the time period or extent of plaintiffs’ engagement in commerce, and the stipulation plaintiffs now assert could not have bound the district court on this separable and dispositive question. Plaintiffs next argue that, once having shown that they were engaged in" }, { "docid": "9759498", "title": "", "text": "pay for the overtime work, for which he did not receive one and a half payment. Did plaintiff’s work bring him within the provisions of Secs. 203(b) or 203(j)? Specifically, we must construe and apply the clause “employee who is engaged in commerce or in the production of goods for commerce,” or whose occupation is “necessary to the production thereof * * * H It has been held that an employee who acts as a guard is engaged in the production of goods in commerce, if the employer is so engaged. Kirschbaum v. Walling, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638; Walling v. Southern Package Corporation, 320 U.S. 540, 64 S.Ct. 320, 88 L.Ed. 298; Armour & Co. v. Wantock, 323 U.S. 126, 65 S.Ct. 165. It has also been held that a messenger for a telegraph company in delivering telegraph messages is not an employee engaged in “the production of goods for commerce” within Section 12 of the Act. Western Union Telegraph Co. v. Lenroot, 323 U.S. 493, 65 S.Ct. 335, 338. The Supreme Court had previously proceeded with relative unanimity in determining who were under and who were outside the protection of the Act. Armour & Co. v. Wantock, 323 U.S. 126, 65 S.Ct. 165; Walling v. Jacksonville Paper Co., 317 U.S. 564, 63 S.Ct. 332, 87 L.Ed. 460; Higgins v. Carr Bros. Co., 317 U.S. 572, 63 S.Ct. 337, 87 L.Ed. 468; Kirschbaum v. Walling, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638; Overnight Motor Co. v. Missel, 316 U.S. 572, 62 S.Ct. 1216, 86 L.Ed. 1682. The case of Western Union Telegraph Co. v. Lenroot, however, resulted in a sharp division of the Court. In the Circuit Court of Appeals .an united court held (2 Cir., 141 F.2d 400) that a telegraph company messenger was within the protection of the Act. In other words, it held a telegraph company was engaged in commerce and in the production of goods for commerce. The majority of the Supreme Court (a 5 to 4 decision) reversed this holding. The acuteness of the difference is shown by" } ]

[ { "docid": "4041445", "title": "", "text": "before Officer Lane detailed his dog, we are bound by the district court’s credibility determination in favor of Officer Jones. Erwin, 71 F.3d at 221. Defendant misreads the issue when he states that his conversation with Officer Jones did not give Jones reasonable suspicion to search his vehicle, because defendant gave consent to search his motor home. When seeking to justify a search based on consent, the government has the burden of showing by a preponder- anee of the evidence that the consent was freely and voluntarily given and was not the result of coercion, duress, or submission to a claim of authority. Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). The volun-tariness of the consent is determined by the “totality of the circumstances.” Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). In the present case, Officer Jones testified that while waiting for a response on his inquiry about defendant’s drivers license and registration, he asked defendant for his consent to allow officers to search his motor home, and defendant voluntarily signed the form. There is no evidence that defendant’s consent was not voluntary. The magistrate judge found that defendant had admitted that he was familiar with law enforcement officers on the interstate system since he was an over-the-road truck driver and had been stopped on a number of occasions. The magistrate judge found that defendant appeared to be very intelligent and literate and did not seem to have the personality that would allow him to be intimidated by law enforcement officers. The magistrate judge found that defendant had not been truthful with Officer Jones about whether his family was traveling with him, which undermined his credibility in regard to other matters. These findings are not clearly erroneous. In considering the evidence in the light most favorable to the government, we find that the magistrate logically concluded that in the totality of the circumstances, the proof showed that defendant voluntarily consented to a search of his vehicle within the time frame for a reasonable detention for a" } ]

[ { "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": "11753900", "title": "", "text": "The defendant denies that he ever consented to opening the envelope. Rather, Inspector Britain with the four other agents present simply directed him to open the package and he obeyed them as he had no other choice. If the court finds that consent to search was given, the defendant alternatively argues this consent was not freely and voluntarily given. The defendant likewise challenges the volun-tariness of his consent to have the package taken and tested. The government maintains the defendant did consent to the search and seizure of the envelope and did so freely and voluntarily. Governing Law A warrantless search is “per se unreasonable” unless one of specifically established exceptions, like consent, is present. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 98 S.Ct. 2041, 36 L.Ed.2d 854 (1973) (quotations omitted). Valid consent is that which is freely and voluntarily given. United States v. Patten, 183 F.3d 1190, 1194 (10th Cir.1999) (citation omitted). Voluntariness is a question of fact to be determined from the totality of all the circumstances. Schneckloth v. Bustamonte, 412 U.S. at 227, 93 S.Ct. 2041. A court makes this determination without presuming the consent was voluntary or involuntary. United States v. Hernandez, 93 F.3d 1493, 1500 (10th Cir.1996). The government bears the burden of proving valid consent to a warrant-less search. United States v. Patten, 183 F.3d at 1194. The government does not discharge its burden “by showing no more than acquiescence to a claim of lawful authority.” Bumper v. North Carolina, 391 U.S. 543, 549, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968); see United States v. Rodriguez, 525 F.2d 1313, 1316 (10th Cir.1975). The government first “must present ‘clear and positive testimony that consent was unequivocal and specific and freely and intelligently given.’ ” United States v. Pena, 143 F.3d 1363, 1367 (10th Cir.) (quoting United States v. Angulo-Fernandez, 53 F.3d 1177, 1180 (10th Cir.1995)), cert. denied, 525 U.S. 903, 119 S.Ct. 236, 142 L.Ed.2d 194 (1998). The government also must prove that the officers used no implied or express duress or coercion in obtaining the consent. Id.; United States v. Hernandez, 93 F.3d at" }, { "docid": "113095", "title": "", "text": "search, once Sprague expressed his firm determination to return to Rockland for a search warrant; (2) by Kim-ball’s concern for his own comfort; or (3) by his appraisal of the prospect that cooperation with the officers might result in greater leniency toward himself and his companions.” Specifically, they contend that to find from all the evidence that it was more plausible that Kimball’s permission was governed by the aforementioned factors constitutes error since it falls short of the government’s burden of establishing consent by clear and convincing evidence. This argument is without merit. An analysis of the district court’s opinion clearly reflects that the use of the phrase “more plausible” was not in the context of applying any standard. The district court did apply the appropriate standard in determining whether valid consent was given. Citing Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 1791, 20 L.Ed.2d 797 (1968), the court properly placed the burden on the government of proving that the consent was freely and voluntarily given. Appellant Kimball also contends that the court erred in concluding that his consent to the search of the cabin was voluntary. At the outset we note that a trial court’s finding of voluntary consent and its determination of the credibility of the witnesses are subject to the clearly erroneous standard of review. United States v. Alegria, 721 F.2d 758 (11th Cir.1983); United States v. Phillips, 664 F.2d 971, 1023 (5th Cir.1981) (Unit B), cert, denied, 457 U.S. 1136, 102 S.Ct. 2965, 73 L.Ed.2d 1354 (1982). The 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. Bustamante, 412 U.S. 218, 227, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973). In its opinion, the district court considered the following factors: The fact that Kimball was handcuffed and in custody when he gave consent, his initial" }, { "docid": "16001988", "title": "", "text": "cause. Thus, even assuming the initial seizure was proper, the search was permissible only if Loos and Escobar freely and voluntarily consented. See United States v. Cedano-Medina, 366 F.3d 682, 684 (8th Cir.2004) (citing Katz v. United States, 389 U.S. 347, 356-57, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)) (holding searches conducted without a warrant based on probable cause are presumptively unreasonable). “Under the fourth and fourteenth amendments, searches conducted without a warrant issued upon probable cause are presumptively unreasonable, subject to a few specifically established exceptions.” Id. Consent to search is one such exception, and “[a] warrantless search is valid if conducted pursuant to the knowing and voluntary consent of the person subject to a search.” United States v. Brown, 763 F.2d 984, 987 (8th Cir.1985). Whether consent is voluntarily given is a question of fact, Schneckloth v. Bustamonte, 412 U.S. 218, 248-49, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), and on appeal, we review the district court’s fact findings for clear error. United States v. Lee, 356 F.3d 831, 834 (8th Cir.2003). The test applied to determine if consent is free and voluntary is whether, in light of the totality of the circumstances, consent was given without coercion, ex press or implied. Bustamonte, 412 U.S. at 227, 93 S.Ct. 2041; Laing v. United States, 891 F.2d 683, 686 (8th Cir.1989). The government bears the burden of showing consent was freely and voluntary given and not a result of duress or coercion, Laing, 891 F.2d at 686, and the burden cannot be discharged by showing mere acquiescence to a claim of lawful authority. Bumper v. North Carolina, 391 U.S. 543, 548-49, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). “Rather, the government must show that a reasonable person would have believed that the subject of a search gave consent that was the product of an essentially free and unconstrained choice, and that the subject comprehended the choice that he or she was making.” Cedano-Medina, 366 F.3d at 684 (internal citations and quotations omitted). Factors we consider when determining if consent was freely and voluntarily given, as set forth in United" }, { "docid": "23500793", "title": "", "text": "407, 9 L.Ed.2d 441 (1963). It is well-established that a war-rantless search by law enforcement officials will be upheld if a detainee has voluntarily consented to the search. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); United States v. Bueno, 21 F.3d 120, 126 (6th Cir.1994); United States v. French, 974 F.2d 687, 693 (6th Cir.1992). The government has the burden of demonstrating that consent was “freely and voluntarily given,” and was not the result of coercion, duress, or submission to a claim of authority. Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968); Bueno, 21 F.3d at 126; United States v. Cooke, 915 F.2d 250, 252 (6th Cir.1990). The proper analysis for determining the voluntariness of a detainee’s consent is to consider the “totality of the circumstances” of the alleged consent. Schneckloth, 412 U.S. at 227, 93 S.Ct. 2041; Bueno, 21 F.3d at 126. It is not necessary that the police inform the detainee that he or she has a right to refuse consent, but instead, such lack of warning of the detainee’s right to refuse will be considered under the totality of circumstances analysis. Schneckloth, 412 U.S. at 227, 93 S.Ct. 2041; United States v. Jones, 846 F.2d 358, 360 (6th Cir.1988). This court will accept a finding of voluntary consent unless it is clearly erroneous. Bueno, 21 F.3d at 126; French, 974 F.2d at 693. The district court held a hearing on Shutters’ motion to suppress the evidence because of the allegedly unconstitutional search. According to the testimony of the arresting officer — Detective Michael Wiley of the Cherokee County, Georgia, Sheriffs Department — after Shutters received his Miranda rights, he stated that he wanted to “come clean,” and that he was familiar with the Miranda warnings as he “heard them many times before.” J.A. at 146 (Wiley Testimony). Shutters then admitted that he had stolen several cars and “given the owner a counterfeit cashier’s check” for the “purchase” of the cars. Id. at 146-47. Shutters next told Detective Wiley that there was a “little" }, { "docid": "13022890", "title": "", "text": "Mr. Piazza, the polot, testified that the airplane had been rented to defendant Phifer and that as the pilot he took his orders from defendant Phifer, provided the orders were within the scope of Federal Aviation Safety Regulations. The Government contends that the search of the airplane was a permissible consensual search not requiring a search warrant. The issue now before us is whether the evidence presented by the Government with respect to the consent by Mr. Piazza, the pilot, to the search of the airplane was legally sufficient to render the seized materials admissible in evidence at the defendants’ trial. It is well settled under the Fourth Amendment that a search conducted without a warrant issued upon probable cause is “per se unreasonable . subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967); Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S. Ct. 2022, 29 L.Ed.2d 564 (1971); Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). It is equally well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent. United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); Schneckloth v. Bustamante, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). When consent is the alleged justification for a search, the burden is on the Government to demonstrate that it was “freely and voluntarily given” and not simply “acquiescence to a claim of lawful authority.” Bumper v. North Carolina, 391 U.S. 543, 549, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797 (1968). Where a person is under arrest or in custody and consent to search is sought by police, the rule has emerged in this Circuit, United States v. Menke, 468 F.2d 20 (3d Cir. 1972); United States ex rel. Harris v. Hendricks, 423 F.2d 1096 (3d Cir. 1970); Government of Virgin Islands v. Berne, 412 F.2d 1055 (3d Cir. 1969), as well" }, { "docid": "13022891", "title": "", "text": "S.Ct. 1975, 26 L.Ed.2d 419 (1970). It is equally well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent. United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); Schneckloth v. Bustamante, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). When consent is the alleged justification for a search, the burden is on the Government to demonstrate that it was “freely and voluntarily given” and not simply “acquiescence to a claim of lawful authority.” Bumper v. North Carolina, 391 U.S. 543, 549, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797 (1968). Where a person is under arrest or in custody and consent to search is sought by police, the rule has emerged in this Circuit, United States v. Menke, 468 F.2d 20 (3d Cir. 1972); United States ex rel. Harris v. Hendricks, 423 F.2d 1096 (3d Cir. 1970); Government of Virgin Islands v. Berne, 412 F.2d 1055 (3d Cir. 1969), as well as others, see e. g., United States v. Legato, 480 F.2d 408 (5th Cir. 1973); United States v. Cox, 464 F.2d 937 (6th Cir. 1972); United States v. Noa, 443 F.2d 144 (9th Cir. 1971) that absent proof of actual coercion or intimidation such consent constitutes a valid waiver of Fourth Amendment rights if prior to the search, Miranda warnings are given. Moreover, these cases are clear that the validity of this waiver is not affected by a failure to include in the Miranda warnings a specific reference that consent could be withheld. With these principles before us, we turn to the facts and circumstances surrounding the apprehension of the occupants of the airplane and the pilot’s agreement to have the airplane searched. The occupants of the airplane, after they had been placed under arrest, were informed of the charges against them, were given their Miranda warnings, and were asked who controlled the airplane and who was in charge of it. Mr. Piazza responded that he was the pilot of the airplane and that he" }, { "docid": "23500792", "title": "", "text": "a motion to suppress, contending that the two searches of the Georgia Residence, and the search of the Tennessee Residence violated his Fourth Amendment rights. After holding a hearing on the matter, the district court upheld all three searches. These rulings are being challenged in this appeal. A jury trial was held on February 11-13, 1997. Convicted on all counts, Shutters was sentenced to 57 months in prison and three years of supervised release. Additionally, the district court ordered that he pay restitution in the amount of $30,457.69. This timely appeal followed. II. The Searches of the Georgia Residence We first review Shutters’ challenges to the two searches of the Georgia Residence. Shutters disputes the police’s account that he consented to the initial search of the Georgia Residence, arguing that the warrant obtained to return to the Georgia Residence was derived from tainted information resulting from the first unconstitutional search. Any evidence recovered from the second search, he insisted, should be suppressed as well. Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). It is well-established that a war-rantless search by law enforcement officials will be upheld if a detainee has voluntarily consented to the search. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); United States v. Bueno, 21 F.3d 120, 126 (6th Cir.1994); United States v. French, 974 F.2d 687, 693 (6th Cir.1992). The government has the burden of demonstrating that consent was “freely and voluntarily given,” and was not the result of coercion, duress, or submission to a claim of authority. Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968); Bueno, 21 F.3d at 126; United States v. Cooke, 915 F.2d 250, 252 (6th Cir.1990). The proper analysis for determining the voluntariness of a detainee’s consent is to consider the “totality of the circumstances” of the alleged consent. Schneckloth, 412 U.S. at 227, 93 S.Ct. 2041; Bueno, 21 F.3d at 126. It is not necessary that the police inform the detainee that he or she has a right to" }, { "docid": "23466846", "title": "", "text": "573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); see United States v. Haddix, 239 F.3d 766, 767 (6th Cir.2001) (“As a practical matter, [the Fourth Amendment] normally requires the police to have a warrant whenever their conduct compromises an individual’s privacy in his or her personal affairs.”). “[Pjhysical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.” Payton, 445 U.S. at 585, 100 S.Ct. 1371 (quotation and citation omitted). Nonetheless, consent is “one of the specifically established exceptions to the requirements of both a warrant and probable cause.” Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Given that the consent exception is “jealously and carefully drawn,” Jones v. United States, 357 U.S. 493, 499, 78 S.Ct. 1253, 2 L.Ed.2d 1514 (1958), it is no surprise that, “[wjhen a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given.” Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968) (emphasis added). “This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority.” Id. at 548-549, 88 S.Ct. 1788 (emphasis added). The strong aversion to warrantless entries has led us to hold that “not any type of consent will suffice, but instead, only consent that is ‘unequivocally, specifically, and intelligently given, uncontaminated by any duress and coercion.’ ” United States v. Worley, 193 F.3d 380, 386 (6th Cir.1999) (quoting United States v. Tillman, 963 F.2d 137, 143 (6th Cir.1992)). Applying the above principles, I am left with the definite and firm conviction that the district court reached the wrong result because the government failed to prove by a preponderance of the evidence that Carter consented to the officers’ entry. We have never previously established that implied consent justifies an otherwise illegal warrantless entry. As even the majority recognizes, “acquiescence” is synonymous with “implied consent,” Maj. Op. at 589 (citing Black’s Law Dictionary 23 (7th ed. 1999))," }, { "docid": "18291802", "title": "", "text": "Cir. 1970); United States v. Harper, 419 F.Supp. 951, 955 (D.C.Md.1976). Thus, defendant Ocampo’s motion to suppress the articles seized from his apartment at 1440 Ocean Parkway is in all respects denied. E. Search of 42-37 Hampton Street, Apartment 2J, Elmhurst The Government seeks to justify the search of defendant Otero’s apartment at 42-37 Hampton Street in Elmhurst as pursuant to a validly obtained consent of his wife, Nora Otero. It is well settled that “one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent.” Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043 (1973); United States v. Price, 599 F.2d at 503. Whether the Government has met its burden of showing that a consent was “freely and voluntarily given” is a question to be determined from the totality of all the circumstances, Schneckloth v. Bustamonte, 412 U.S. at 227, 93 S.Ct. at 2047-48, and mere acquiescence to lawful authority or submission to duress or coercion, express or implied, cannot validate a warrantless search. Id. at 222, 228-29, 93 S.Ct. at 2048; Bumper v. North Carolina, 391 U.S. 543, 548-49, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797 (1968); United States v. Price, 599 F.2d at 503. Where two persons, such as a husband and wife, have equal rights to the use or occupation of certain premises, either may give consent to a search, and the evidence thus disclosed can be used against either. United States v. Stone, 471 F.2d 170, 173 (7th Cir. 1972), cert. denied, 411 U.S. 931, 93 S.Ct. 1898, 36 L.Ed.2d 391 (1973) ; Frazier v. Cupp, 394 U.S. 731, 740, 89 S.Ct. 1420, 1425, 22 L.Ed.2d 684 (1969); United States v. Matlock, 415 U.S. 164, 170-72, 94 S.Ct. 988, 992-93, 39 L.Ed.2d 242 (1974) . Involving as it does a problem of credibility, the question presented here is a close one. Upon consideration of the totality of circumstances surrounding the search and after scrutinizing the testimony with respect to it, the Court believes that Nora Otero knowingly and voluntarily" }, { "docid": "22255880", "title": "", "text": "Analysis The Fourth Amendment bars the government from conducting unreasonable searches and seizures. This prohibition extends to both private homes and commercial premises. Marshall v. Barlow’s Inc., 436 U.S. 307, 312, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978). Additionally, searches pursuant to criminal as well as administrative investigations must comport to the strictures of the Fourth Amendment. Michigan v. Tyler, 436 U.S. 499, 506, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978) (citing Camara v. Mun. Court, 387 U.S. 523, 528-29, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967)). Under the Fourth Amendment, searches “conducted without a warrant issued upon probable cause [are] per se unreasonable ... subject only to a few specifically established and well-delineated exceptions.” Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). The well-delineated exception at issue here is consent. If an officer obtains consent to search, a warrantless search does not offend the Constitution. Davis v. United States, 328 U.S. 582, 593-94, 66 S.Ct. 1256, 90 L.Ed. 1453 (1946). Indeed, “[a]n officer with consent needs neither a warrant nor probable cause to conduct a constitutional search.” United States v. Jenkins, 92 F.3d 430, 436 (6th Cir.1996) (citing Bustamonte, 412 U.S. at 219, 93 S.Ct. 2041). Such consent, however, must be voluntary and freely given. Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). 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). The burden of proving that a search was voluntary is on the government, id., and “must be proved by clear and positive testimony.” United States v. Scott, 578 F.2d 1186, 1188-89 (6th Cir.1978). “[W]hether a consent to a search was in fact ‘voluntary’ or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances.” Bustamonte, 412 U.S. at 227, 93 S.Ct. 2041; see also United States v. Ivy, 165 F.3d 397, 402 (6th Cir.1998) (citing United States v. Jones, 846 F.2d" }, { "docid": "23151859", "title": "", "text": "1066 (6th Cir. 1977). Appellants were not free to leave at any point after the initial stop by the agents. As this court stated in Manning v. Jarnigan, 501 F.2d 408 (6th Cir. 1974), “[t]he difference between an investigatory stop and an arrest has yet to be spelled out. . . . [However], this was clearly a deprivation of liberty under the authority of law. It does not take formal words of arrest or booking at a police station to complete an arrest.” 501 F.2d at 410. When appellants were taken to the private office and were not free to leave, the arrest was clearly complete. See, United States v. Jackson, 533 F.2d 314 (6th Cir. 1976) . The question thus remains whether following an invalid Terry stop and an unconstitutional arrest of appellants, evidence was properly seized as the result of a valid consent search. “When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given.” Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 2045, 36 L.Ed.2d 854 (1973) citing Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797. The question of voluntariness of a consent is “a question of fact to be determined from the totality of all the circumstances,” Schneckloth v. Bustamonte, supra, 412 U.S. at 227, 93 S.Ct. at 2048, and as such requires this court to hold the district judge’s finding of voluntary consent to be clearly erroneous before it can be overruled. United States v. Hearn, 496 F.2d 236, 242 (6th Cir.), cert. denied, 419 U.S. 1048, 95 S.Ct. 622, 42 L.Ed.2d 642 (1974). Consent “must be proved by ‘clear and positive testimony,’ Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654 (1921), and ‘must be unequivocal, specific and intelligently given, uncontaminated by any duress or coercion,’ Simmons v. Bomar, 349 F.2d 365 (6th Cir. 1965).” United States v. Hearn, supra, 496 F.2d at 244. “[T]he mere fact that a person has been" }, { "docid": "5485137", "title": "", "text": "The jury found both Sanchez and Alvarez guilty. II We turn first to the claims that the seizures of evidence at the three apartments violated the Fourth Amendment and that the items seized should therefore have been suppressed. The government seeks to justify the searches of the Dominguez-Garcia apartment and the Sanchez-Alvarez apartment on the basis of consent. With respect to the Delgado apartment, the government argues that there was a valid consent to the officers’ entry into the apartment and that the guns and customer list were properly seized under the “plain view” doctrine. The Fourth Amendment prohibits unreasonable searches and seizures.^ “[A] search conducted without a warrant issued upon probable cause is ‘per se unreasonable . subject only to a few specifically established and well-delineated exceptions.’ ” Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973). One such exception is a search that has been consented to by the lawful occupant of the premises. The consent is deemed to make the search “reasonable” for purposes of the Fourth Amendment. For such a consent to be valid, however,'\"it must be voluntarily and freely given. It may not be the product of duress or coercion, flagrant or subtle: [T]he Fourth and Fourteenth Amendments require that a consent not be coerced, by explicit or implicit means, by implied threat or covert force. For, no matter how subtly the coercion was applied, the resulting “consent” would be no more than a pretext for the unjustified police intrusion against which the Fourth Amendment is directed. . (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. ¡ Schneckloth v. Bustamonte, supra at 228-29, 93 S.Ct. at 2048-49. The burden of proving that the consent was voluntarily given lies on the prosecution. Id. at 226, 93 S.Ct. at 2047; Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 1791, 20 L.Ed.2d 797 (1968). In determining whether this" }, { "docid": "23036679", "title": "", "text": "on consent. In fact, the Supreme Court has expressly rejected the use of “waiver” analysis in fourth amendment cases in favor of a “voluntary consent” test. See Schneckloth v. Bustamonte, 412 U.S. 218, 235-46, 93 S.Ct. 2041, 2052-57, 36 L.Ed.2d 854 (1973). Thus, to determine whether, by granting any ongoing consent, Leary and Kleinberg effectively “waived” their fourth amendment rights, our analysis is guided by the law developed for analyzing “consent” searches. Initially, we reject any suggestion that Leary and Kleinberg specifically consented to the August 23, 1984 search. When a government agent claims authority to search under a warrant, “he announces in effect that the occupant has no right to resist the search. The situation is instinct with coercion — albeit colorably lawful coercion. Where there is coercion there cannot be consent.” Bumper v. North Carolina, 391 U.S. 543, 550, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797 (1968). In fact, the Supreme Court has stated that: “A search conducted in reliance upon a warrant cannot later be justified on the basis of consent if it turns out that the warrant was invalid.” Bumper, 391 U.S. at 549, 88 S.Ct. at 1792. Similarly, we find no evidence that Leary and Kleinberg granted an ongoing consent to searches by Customs officers. We recently addressed the question of consent in detail, recognizing that the Supreme Court requires that “consent to a Fourth Amendment search must be voluntary in fact and free of coercion under the totality of the circumstances....” United States v. Carson, 793 F.2d 1141, 1150 (10th Cir.) (citing Schneckloth, 412 U.S. at 248-49, 93 S.Ct. at 2058-59) (emphasis in original), cert. denied, — U.S. -, 107 S.Ct. 315, 93 L.Ed. 2d 289 (1986). In addition, we have noted that consent “is a question of fact to be determined from the totality of all the circumstances [and] [t]he Government has the burden of proving that consent was given freely and voluntarily.” United States v. Recalde, 761 F.2d 1448, 1453 (10th Cir.1985) (citations omitted). There is no evidence that Kleinberg and Leary granted an ongoing consent to the search of their offices" }, { "docid": "22254362", "title": "", "text": "make a search of items within “ ‘grabbing distance’ ” even though an arrest followed rather than preceded the search. United States v. Riggs, 474 F.2d 699, 704 (2d Cir. 1973). This search, incident to the arrest that was lawfully about to be made, properly extended to the contents of the bag, none of which, including the cereal box, was a sealed container entitled to special protection. See Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979); United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977); United States v. Mannino, 635 F.2d 110 (2d Cir. 1980). Sanchez’s motion to suppress the contents of the box was properly denied, and his conviction is affirmed. Ill The claims of Fernando Medina center not on whether the initial approach to him by officers Skelly and Palombo was reasonable, but on whether the ensuing searches of Fernando’s car and his house were permissible on the basis of his consent, and whether his statements following his arrest were voluntary. We find 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" }, { "docid": "23466828", "title": "", "text": "and on his person. At the hearing, Detective Hart testified in detail as to the circumstances of his entry into Room 119. The district court found the officers’ entry justified by exigent circumstances, namely that once Carter was alerted to the presence of law enforcement personnel he could have quickly disposed of the evidence; in the alternative, the court found that Carter had validly consented to the officers’ entry into his hotel room. Carter thereupon conditionally pled guilty, reserving the right to challenge his Conviction based on the outcome of the suppression hearing. Following sentencing, Carter timely brought this appeal. II This court reviews “a district court’s factual findings regarding motions to suppress for clear error and its legal conclusions de novo.” United States v. Blair, 214 F.3d 690, 696 (6th Cir.2000) (citation omitted). Where a district court denies that motion, we consider the evidence “in the light most favorable to the government.” United States v. Wellman, 185 F.3d 651, 654-55 (6th Cir.1999) (citation omitted). It is well-settled that a person may waive his Fourth Amendment rights by consenting to a search. Davis v. United States, 328 U.S. 582, 593-94, 66 S.Ct. 1256, 90 L.Ed. 1453 (1946). Consent to a search “may be in the form of words, gesture, or conduct.” United States v. Griffin, 530 F.2d 739, 742 (7th Cir.1976). In whatever form, consent has effect only if it is given freely and voluntarily. Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). \"Whether consent was free and voluntary so as to waive the warrant requirement of the Fourth Amendment is “a question of fact to be determined from the totality of all the circumstances.” Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Thus, our review is for clear error. United States v. Erwin, 155 F.3d 818, 822 (6th Cir.1998) (en banc). Carter did not testify at the suppression hearing, so our informa tion as to the exact sequence of events after Carter opened the door to Room 119 comes by way of Detective Hart’s testimony: Q." }, { "docid": "23472124", "title": "", "text": "consent form and adding a provision for Hummer to attend the search. Hummer signed the agreement in which he consented to a search of his truck. The agreement stated that Hummer’s written permission was given “voluntarily and without threats or promises of any kind.” During the search, FBI agents seized, among other items, prototypes of and patent documents relating to Hummer’s tamper-resistant bottles and caps for consumer products. Prior to his trial Hummer filed a motion to suppress physical evidence and statements obtained from him incident to his arrest. The district court denied the motion. The court found that, at the point Christian noticed the similarity between the clothing of Hummer and the clothing of the man who fled into the woods, Christian had probable cause to arrest Hummer and that Hummer freely and voluntarily gave his consent for the search. The evidence was introduced at Hummer’s trial and a jury convicted him of all counts. II. A. It is well-settled that a person may waive the fourth amendment’s warrant requirement by consenting to a warrantless search by law enforcement officers. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973). The government bears the burden of proving the consent was voluntary, Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 1791, 20 L.Ed.2d 797 (1968), and the district court must look to the totality of the circumstances surrounding the consent in determining whether it was voluntarily given. Schneckloth, 412 U.S. at 248-49, 93 S.Ct. at 2058-59. The determination that a defendant has voluntarily consented to a search is a finding of fact that will be upheld on appeal unless the finding of the district court is clearly erroneous. United States v. Wilson, 895 F.2d 168, 172 (4th Cir.1990). The record supports the finding that Hummer voluntarily consented to the search of his truck. Although Agent Rendin stated at one point that a search warrant might be sought, Hummer was advised several times orally and in writing of his right to refuse the search. Hummer stated that he understood this right. Furthermore, he" }, { "docid": "23406866", "title": "", "text": "incriminating statements contained in the four letters written to family members from the jail in which he was incarcerated. We therefore conclude that the district court did not err when it denied Randall’s suppression motion. 2. Terry’s truck “[A] search conducted without a warrant issued upon probable cause is per se unreasonable, ... subject only to a few specifically-established and well-delineated exceptions.” Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) (internal quotation marks omitted). Although the officers did not obtain a warrant to search Terry’s truck, the district court found that the search was valid pursuant to three exceptions to the warrant requirement: Terry’s consent, the automobile exception, and a search incident to Terry’s arrest. Terry’s “consent” was allegedly given while being interrogated by law enforcement officers. Whether permission to search was freely given or was the result of coercion or duress presents a close question. See Van Shutters, 163 F.3d at 335 (“The government has the burden of demonstrating that consent was ‘freely and voluntarily given,’ and was not the result of coercion, duress, or submission to a claim of authority.”) (quoting Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968)). We see no need not decide the issue of consent, how ever, because the search was clearly valid under the automobile exception. Under this exception, “in cases where there was probable cause to search a vehicle[,] a search is not unreasonable if based on facts that would justify the issuance of a warrant, even though a warrant has not been actually obtained.” Maryland v. Dyson, 527 U.S. 465, 467, 119 S.Ct. 2013, 144 L.Ed.2d 442 (1999) (emphasis omitted). The automobile exception is applicable even in nonexigent circumstances, so long as the vehicle is mobile and law enforcement officers have probable cause to believe that it contains incriminating evidence. Id. at 466-67, 119 S.Ct. 2013. “The test for ‘probable cause’ is simply whether there is a fair probability that contraband or evidence of a crime will be found in a particular place.” United States v. Lumpkin, 159" }, { "docid": "7426684", "title": "", "text": "of illegal activity. CONSENT TO SEARCH Defendant next alleges challenges his consent to search the car. Defendant’s challenge includes his assertions that because he failed to understand English, he did not give consent at all, but that even if he did voice consent, such consent is invalid, and that he attempted to leave the scene in his vehicle prior to the search but the trooper prevented him from so doing. A warrantless search is “per se unreasonable” unless one of the specifically established exceptions, like consent, is present. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) (quotations omitted). Valid consent is that which is freely and voluntarily given. Patten, 183 F.3d at 1194 (citation omitted). Voluntariness is a question of fact to be determined from the totality of all the circumstances. Schneckloth, 412 U.S. at 227, 93 S.Ct. 2041. A court makes this determination without presuming the consent was voluntary or involuntary. United States v. Hernandez, 93 F.3d 1493, 1500 (10th Cir.1996). For this exception to apply, the government must prove by a preponderance of the evidence that consent was freely and voluntarily given. Soto, 988 F.2d at 1557. The government does not discharge its burden “by showing no more than acquiescence to a claim of lawful authority.” Bumper v. North Carolina, 391 U.S. 543, 549, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). The government first “must present ‘clear and positive testimony that consent was unequivocal and specific and freely and intelligently given.’ ” United States v. Pena, 143 F.3d 1363, 1367 (10th Cir.) (quoting United States v. Angulo-Fernandez, 53 F.3d 1177, 1180 (10th Cir.1995)), cert. denied, 525 U.S. 903, 119 S.Ct. 236, 142 L.Ed.2d 194 (1998). The government also must prove that the officers used no implied or express duress or coercion in obtaining the consent. Id. This determination is made upon considering the totality of the circumstances. Schneckloth, 412 U.S. at 225-27, 93 S.Ct. 2041. The determination entails weighing several relevant factors. An officer’s failure to advise that a person may refuse to consent is relevant, but it is only one factor" }, { "docid": "2388019", "title": "", "text": "which Scott had been found. This pistol was later determined to be the gun used to shoot Officer McGoldrick in the face. The paper bag was found to contain $7,080, of which $500 was marked “bait” money. Two ski masks were also found. All of this evidence was introduced against Scott at the trial. Scott contends that the two searches of Nance’s apartment violated his rights under the Fourth Amendment. It is our opinion, however, that Nance’s consents to both searches were freely and voluntarily given. The burden was on the Government to prove that consent, justifying a warrant-less entry, was freely and voluntarily given. Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968); United States v. Killebrew, 560 F.2d 729, 733 (6th Cir. 1977). As this Court has continually held, consent must be proved by clear and positive testimony, and, to be voluntary it must be unequivocal, specific, and intelligently giv en, uneontaminated by any duress or coercion. United States v. McCaleb, 552 F.2d 717, 721 (6th Cir. 1977); Simmons v. Bomar, 349 F.2d 365, 366 (6th Cir. 1965). Voluntariness of consent to search is an issue of fact to be found by the trial court, Rosenthall v. Henderson, 389 F.2d 514, 516 (6th Cir. 1968), and such findings are subject to the “clearly erroneous” rule, United States v. Canales, 572 F.2d 1182 at 1187-1188 (6th Cir. 1978). No single fact is determinative of the voluntariness of a consent to search, but rather, voluntariness is to be determined “from the totality of all the circumstances.” Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 2048, 36 L.Ed.2d 854 (1973). In that case the Supreme Court cited its previous decisions regarding the voluntariness of confessions, stating: In all of these cases, the Court determined the factual circumstances surrounding the confession, assessed the psychological impact on the accused, and evaluated the legal significance of how the accused reacted. [412 U.S. at 226, 93 S.Ct. at 2047] See United States v." } ]

[ { "docid": "23004695", "title": "", "text": "doubt that the plaintiff can prove no set of facts which would entitle him to relief. See Tele-Communications of Key West, Inc. v. U.S., 757 F.2d 1380, 1334 (D.C.Cir.1985). The court must accept as true all well-pleaded factual allegations and draw all reasonable inferences in favor of the plaintiff. See Antonelli v. Sheahan, 81 F.3d 1422, 1427 (7th Cir.1996). A motion to dismiss to dismiss for lack of jurisdiction pursuant to Rule 12(b)(1) is reviewed under a similar standard, where the motion challenges the sufficiency of the allegations of subject matter jurisdiction. See Pitney Bowes Inc. v. U.S. Postal Service, 27 F.Supp.2d 15, 19 (D.D.C.1998). The burden of proving jurisdiction is upon the plaintiff. Id. When reviewing a motion under Fed.R.Civ.P. 12(b)(6), if “matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56.... ” Fed.R.Civ.P. 12(b). However, where a document is referred to in the complaint and is central to plaintiffs claim, such a document attached to the motion papers may be considered without converting the motion to one for summary judgment. Greenberg v. The Life Insurance Company of Va., 177 F.3d 507, 514 (6th Cir.1999). The Court finds that Chapter 752 of the Personnel Manual and the various letters and materials produced in the course of plaintiffs discharge proceeding, all of which have been attached to plaintiffs opposition papers, fall under this exception and may be considered without converting the motion to one for summary judgment. D. Motion to Dismiss the Tort Claim Defendants move for the dismissal of the tort claim, arguing that the claim may not proceed against the United States because it falls under an exception to the FTCA’s waiver of sovereign immunity. Among the exceptions to the general waiver is one for “[a]ny claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights....” 28 U.S.C. § 2680(h) (1994) (emphasis added). This has previously been interpreted as encompassing claims for interference" } ]

[ { "docid": "20596620", "title": "", "text": "Benefit Plans Litig., 854 F.Supp. 914, 915 (D.D.C.1994). Further, in deciding a Rule 12(b)(6) motion, a court may consider “the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint,” or “documents upon which the plaintiffs complaint necessarily relies even if the document is produced not by the plaintiff in the complaint but by the defendant in a motion to dismiss.” Ward v. D.C. Dep’t of Youth Rehab. Servs., 768 F.Supp.2d 117, 119 (D.D.C.2011) (citations omitted). A motion to dismiss may be granted on statute of limitations grounds only if apparent from the face of the complaint. See Nat’l R.R. Passenger Corp. v. Lexington Ins. Co., 357 F.Supp.2d 287, 292 (D.D.C.2005) (“A defendant may raise the affirmative defense of a statute of limitations via a Rule 12(b)(6) motion when the facts giving rise to the defense are apparent on the face of the complaint”). “Because statute of limitations defenses often are based on contested facts, thé court should be cautious in granting a motion to dismiss on such grounds; ‘dismissal is appropriate only if the complaint on its face is conclusively time-barred.’ ” Rudder v. Williams, 47 F.Supp.3d 47, 50 (D.D.C.2014) (quoting Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C.Cir.1996)). III. DISCUSSION Developer Defendants in their Motion to Dismiss assert that Plaintiffs do not hold valid leases to the property in question because the leases were terminated. As such, the Developer Defendants contend that the Court should dismiss Plaintiffs’ claims against them in their entirety. Developer Defs.’ Br. in Supp. of Mot. to Dismiss at 6, ECF No. [20-1]. The District argues that the Court also should dismiss the Fifth Amendment Takings Clause claim, the sole claim against the District, for two reasons. First, the District adopts the arguments made by the Developer Defendants that the Plaintiffs do not have a valid leasehold interest in the property, but does not make any additional arguments in support of this contention. Rather, the District asserts that because Plaintiffs do not have legally enforceable interests in the property, the District has not taken their property without just" }, { "docid": "20894861", "title": "", "text": "a complaint must contain sufficient factual allegations that, if accepted as true, “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to.draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. In deciding a Rule 12(b)(6) motion, a court may consider “the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint,” or “documents upon which the plaintiffs complaint necessarily relies even if the document is produced not by . the plaintiff in the complaint but by the defendant in a motion to dismiss.” Ward v. District of Columbia Dep’t of Youth Rehab. Servs., 768 F.Supp.2d 117, 119 (D.D.C. 2011) (internal quotation marks omitted). The Court shall consider for purposes of the pending motion the Statement of Material Disclosure by Patricia Scott, ECF No. 1 at 17-30, and the Statement of Material Disclosure by John L. Tudbury, id. at 32-40. These documents are expressly incorporated by reference in the complaint. See Compl. ¶ 25. B. Pleading a Fraud Claim Pursuant to Federal Rule of Civil Procedure 9(b) “Complaints brought under the FCA must ... comply with Rule 9(b).” United States ex rel. Landis v. Tailwind Sports Corp., 51 F.Supp.3d 9, 49 (D.D.C. 2014) (citing United States ex rel. Totten v. Bombardier Corp., 286 F.3d 542, 551-52 (D.C. Cir. 2002)). Rule 9(b) states that “[i]n alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.” “Reading Rule 9(b) together with Rule 8’s requirement that allegations be ‘short and plain,’ ... the D.C. Circuit has required plaintiffs to ‘state the time, place and content of the false misrepresentations, the fact misrepresented and what was retained or given up as a consequence of the fraud,’ and to ‘identify individuals allegedly involved in the fraud.’ ” United States ex rel. Morsell v. Symantec Corp., 130 F.Supp.3d 106, 117 (D.D.C. 2015) (citing United States ex rel. Williams" }, { "docid": "985317", "title": "", "text": "by Defendant, which is. required to make out a Title VII retaliation claim. When all reasonable inferences are drawn in Plaintiffs favor, however, the complaint plausibly alleges that she suffered a diminution of employment responsibilities, and thereby a material adverse action. Whether such inferences are ultimately warranted as a factual matter is to be decided following discovery. Finally, largely on the basis of this same deprivation of employment responsibilities, which Plaintiff alleges was severe and pervasive, the Court finds that Plaintiff has plausibly alleged that she suffered a retaliatory hostile work environment. Accordingly, upon consideration of the pleadings, the relevant legal authorities, and the record for purposes of the pending motion, the Court shall DENY the [9] Motion to Dismiss in Part. LEGAL STANDARD Pursuant to Rule 12(b)(6), a party may move to dismiss a complaint on the grounds that it “fail[s] to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “[A] complaint [does not] suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Rather, a complaint must contain sufficient factual allegations that, if accepted as true, “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955. In deciding a Rule 12(b)(6) motion, a court may consider “the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint,” or “documents upon which the plaintiffs complaint necessarily relies even if the document is produced not by the plaintiff in .the complaint but by the defendant in a motion to dismiss.” Ward v. District of Columbia Dep’t of Youth Rehab. Servs., 768 F.Supp.2d 117, 119 (D.D.C. 2011) (internal quotation marks omitted). The court may also consider documents in the public record of which the court may take judicial notice. Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052,1059 (D.C. Cir. 2007). DISCUSSION A. Dismissal is Not Appropriate" }, { "docid": "1556231", "title": "", "text": "Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)); accord Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam). “[A] complaint [does not] suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955). Rather, a complaint must contain sufficient factual allegations that, if accepted as true, “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. In evaluating a Rule 12(b)(6) motion to dismiss for failure to state a claim, a court must construe the complaint in the light most favorable to the plaintiff and must accept as true all reasonable factual inferences drawn from well-pleaded factual allegations. In re United Mine Workers of Am. Employee Benefit Plans Litig., 854 F.Supp. 914, 915 (D.D.C.1994). Further, in deciding a Rule 12(b)(6) motion, a court may consider “the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint,” or “documents upon which the plaintiffs complaint necessarily relies even if the document is produced not by the plaintiff in the complaint but by the defendant in a motion to dismiss.” Ward v. D.C. Dep’t of Youth Rehab. Servs., 768 F.Supp.2d 117, 119 (D.D.C.2011) (citations omitted). III. DISCUSSION In Plaintiffs’ Amended Complaint, Plaintiffs clarify that they are bringing two sets of claims in this matter: (1) claims challenging the foreclosure and eviction proceedings against Plaintiffs (Counts I and VI), and (2) four False Claims Act (“FCA”) claims (Counts II-V). See Am. Compl. ¶¶ 1-2. The Court will first address whether it has personal jurisdiction over the Law Enforcement and Law Firm" }, { "docid": "20664252", "title": "", "text": "the motion as one under Rule 12(b)(6) and Rule 56 is more consistent with prior [federal labor] case law”). Consequently, the governing standards for both motions to dismiss and motions for summary judgment are relevant to the matter at hand. 1. Legal Standard For A Motion To Dismiss Under Rule 12(b)(6) In deciding whether to dismiss a complaint for failure to state a claim under Rule 12(b)(6), a “court must treat the complaint’s factual allegations- — including mixed questions of law and fact — -as true and draw all reasonable inferences therefrom in the plaintiffs favor.” Epps v. U.S. Capitol Police Bd., 719 F.Supp.2d 7, 13 (D.D.C.2010) (citing Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C.Cir.2003)). Generally, a court deciding a Rule 12(b)(6) motion does not consider matters beyond the pleadings. Ward v. D.C. Dep’t of Youth Rehab. Servs., 768 F.Supp.2d 117, 119-120 (D.D.C.2011). This means that the court may consider “the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint, or documents upon which the plaintiffs complaint necessarily relies even if the document is produced not by the plaintiff in the complaint but by the defendant in a motion to dismiss[.]” Id. at 119 (internal quotation marks and citation omitted). For example, a plaintiffs complaint “necessarily relies” on a document when the complaint “quote[s] from and discuss[es a document] extensively.” W. Wood Preservers Inst. v. McHugh, 292 F.R.D. 145, 149 (D.D.C.2013) (citation omitted). 2. Conversion To A Motion For Summary Judgment If a court considers materials outside of the pleadings, i.e. materials that the complaint neither incorporates nor necessarily relies upon, then the court must convert the motion to dismiss into one for summary judgment. Kim v. United States, 632 F.3d 713, 719 (D.C.Cir.2011) (citing Fed.R.Civ.P. 12(d) (“If, on a motion under 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56.”)). District courts have considerable discretion when deciding whether or not to so convert a motion" }, { "docid": "985318", "title": "", "text": "Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Rather, a complaint must contain sufficient factual allegations that, if accepted as true, “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955. In deciding a Rule 12(b)(6) motion, a court may consider “the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint,” or “documents upon which the plaintiffs complaint necessarily relies even if the document is produced not by the plaintiff in .the complaint but by the defendant in a motion to dismiss.” Ward v. District of Columbia Dep’t of Youth Rehab. Servs., 768 F.Supp.2d 117, 119 (D.D.C. 2011) (internal quotation marks omitted). The court may also consider documents in the public record of which the court may take judicial notice. Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052,1059 (D.C. Cir. 2007). DISCUSSION A. Dismissal is Not Appropriate on Exhaustion Grounds Defendant contends that Plaintiff failed to adequately exhaust two categories of claims: (i) two claims related to a 2013 performance appraisal, see Def.’s Mem at 7 (citing Compl. ¶ 71); and (ii) the hostile work environment claim, see Def.’s Mem. at 14. The parties’ dispute on this issue reduces to the following procedural history. Plaintiff filed a formal administrative complaint regarding her supervisor’s alleged retaliatory conduct on December 21, 2012. Compl. ¶ 4. A number of additional complaints and amendments followed between May 2013 and October 2015. Id. One of these requested amendments is at issue here. In particular, on March 24, 2014, Plaintiff requested that the presiding Ad ministrative Judge allow, among other things, the following amendment to her complaint: On or about March 6, 2014, Hufford provided [Plaintiff] with a final performance appraisal for 2013 that rated her only fully successful, as opposed to exceeds expectations, in two critical categories. The examples Hufford used to justify his rating relied on false information or statements [Plaintiff] made in support of her" }, { "docid": "17989128", "title": "", "text": "facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.” Coal. for Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C.Cir.2003) (citations omitted). B. Rule 12(b)(6) To survive a Rule 12(b)(6) motion to dismiss for failure to state a claim, a complaint must contain sufficient factual allegations, accepted as true, to “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 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is hable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Although a court generally cannot consider matters beyond the pleadings at the motion-to-dismiss stage, it may consider “documents attached as exhibits or incorporated by reference in the complaint, or documents upon which the plaintiffs complaint necessarily relies even if the document is produced not by the plaintiff in the complaint but by the defendant in a motion to dismiss[.]” Ward v. D.C. Dep’t of Youth Rehab. Servs., 768 F.Supp.2d 117, 119 (D.D.C.2011) (internal citations and quotation marks omitted). C.Rule 56 A court may grant summary judgment when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A “material” fact is one capable of affecting the substantive outcome of the litigation. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute is “genuine” if there is enough evidence for a reasonable jury to return a verdict for the non-movant. See Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). IV. ANALYSIS In his first amended complaint, Agent Dick asserts several claims under the Rehabilitation Act and the ADEA, which prohibit discrimination based on disability and age, respectively. The Rehabilitation Act “forbids federal agencies from engaging in any discrimination" }, { "docid": "20894860", "title": "", "text": "also allege that Defendant encouraged employees to purchase exorbitantly priced airfare, despite the availability of lower-priced options, because Defendant.received ten percent of the purchase price. This practice was allegedly contrary to Defendant’s internal policy and the Fly America Act, 49 U.S.C. § 40118. Id. ¶¶ 50-56. The specifics of two tickets allegedly purchased pursu ant to this practice are described in the complaint. Id. ¶ 56. Finally, Relators allege that they were terminated in retaliation for their efforts to investigate the allegedly fraudulent activities described above. Id. ¶¶ 57-75. II. LEGAL STANDARD A. Motion to Dismiss for Failure to State a Claim Defendant moves to dismiss the complaint for “failure to state a claim upon which relief can be granted” pursuant to Federal Rule of Civil Procedure 12(b)(6). “[A] complaint [does not] suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Rather, a complaint must contain sufficient factual allegations that, if accepted as true, “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to.draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. In deciding a Rule 12(b)(6) motion, a court may consider “the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint,” or “documents upon which the plaintiffs complaint necessarily relies even if the document is produced not by . the plaintiff in the complaint but by the defendant in a motion to dismiss.” Ward v. District of Columbia Dep’t of Youth Rehab. Servs., 768 F.Supp.2d 117, 119 (D.D.C. 2011) (internal quotation marks omitted). The Court shall consider for purposes of the pending motion the Statement of Material Disclosure by Patricia Scott, ECF No. 1 at 17-30, and the Statement of Material Disclosure" }, { "docid": "18252073", "title": "", "text": "face.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949. “Pleadings must be construed so as to do justice,” Fed.R.Civ.P. 8(e), and documents filed by pro se parties must be “liberally construed,” Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam) (internal quotation marks omitted). Moreover, “a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson, 551 U.S. at 94, 127 S.Ct. 2197 (internal quotation marks omitted). Nonetheless, “[a] pro se complaint, like any other, must present a claim upon which relief can be granted.” Crisafi v. Holland, 655 F.2d 1305, 1308 (D.C.Cir.1981). The district court “need not accept inferences unsupported by the facts alleged in the complaint or legal conclusions cast in the form of factual allegations.” Kaemmerling v. Lappin, 553 F.3d 669, 677 (D.C.Cir.2008) (internal quotation marks omitted). Additionally, in deciding a Rule 12(b)(6) motion, a court may consider “ ‘the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint,’ ” Ward v. D.C. Dep’t of Youth Rehab. Servs., 768 F.Supp.2d 117, 119 (D.D.C.2011) (quoting Gustave-Schmidt v. Chao, 226 F.Supp.2d 191, 196 (D.D.C.2002)), or “ ‘documents upon which the plaintiffs complaint necessarily relies’ even if the document is produced not by [the parties].” Id. (quoting Hinton v. Corr. Corp. of Am., 624 F.Supp.2d 45, 46 (D.D.C.2009)). III. DISCUSSION Defendants move to dismiss Plaintiffs Complaint on the grounds each claim is barred by collateral estoppel or res judicata. Specifically, Defendants allege Counts Two and Six of the Complaint are barred by collateral estoppel, and Counts One, Three, Four, Five, and Eight are barred by res judicata. Plaintiff argues that based on the claims raised in his prior federal action, collateral estoppel is inapplicable, but does not dispute any of Defendants’ claims regarding Plaintiffs D.C. Superior Court case. Pl.’s Opp’n at 8-9." }, { "docid": "20403910", "title": "", "text": "dismiss pursuant to Rule 12(b)(1),” the factual allegations in the complaint “will bear closer scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for failure to state a claim.” Wright v. Foreign Serv. Grievance Bd., 503 F.Supp.2d 163, 170 (D.D.C. 2007) (citation omitted). Federal Rule of Civil Procedure 12(b)(6) provides that a party may challenge the sufficiency of a complaint on the grounds it “fail[s] to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “[A] complaint [does not] suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Rather, a complaint must contain sufficient factual allegations that, if accepted as true, “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955. In deciding a Rule 12(b)(6) motion, a court may consider “the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint,” or “documents upon which the plaintiffs complaint necessarily relies even if the document is produced not by [the parties].” Ward v. D.C. Dep’t of Youth Rehab. Servs., 768 F.Supp.2d 117, 119 (D.D.C.2011) (citations omitted). III. DISCUSSION The Defendants move to dismiss the Complaint on the grounds the Complaint was not filed within 180 days of the grant of the patent as required by 35 U.S.C. § 154(b)(4)(A). The Plaintiff contends that, consistent with the general tolling rule applicable to judicial review of agency actions, the 180-day time limit was tolled while the applicant’s petitions for reconsid eration under section 1.181 were pending before the Director. The Defendants offer five arguments in support of the position that general tolling principles do not apply to section 154(b)(4)(A), four of which have been rejected by other courts in this district. Accordingly, the Court shall address the Defendants’ first through fourth arguments in summary fashion, before turning to the fifth argument, which also lacks merit. A. General Tolling" }, { "docid": "20664253", "title": "", "text": "documents upon which the plaintiffs complaint necessarily relies even if the document is produced not by the plaintiff in the complaint but by the defendant in a motion to dismiss[.]” Id. at 119 (internal quotation marks and citation omitted). For example, a plaintiffs complaint “necessarily relies” on a document when the complaint “quote[s] from and discuss[es a document] extensively.” W. Wood Preservers Inst. v. McHugh, 292 F.R.D. 145, 149 (D.D.C.2013) (citation omitted). 2. Conversion To A Motion For Summary Judgment If a court considers materials outside of the pleadings, i.e. materials that the complaint neither incorporates nor necessarily relies upon, then the court must convert the motion to dismiss into one for summary judgment. Kim v. United States, 632 F.3d 713, 719 (D.C.Cir.2011) (citing Fed.R.Civ.P. 12(d) (“If, on a motion under 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56.”)). District courts have considerable discretion when deciding whether or not to so convert a motion to dismiss. See Flynn v. Tiede-Zoeller, Inc., 412 F.Supp.2d 46, 50 (D.D.C.2006). In exercising this discretion, “the reviewing court must assure itself that summary judgment treatment would be fair to both parties[.]” Tele-Commc’ns of Key West, Inc. v. United States, 757 F.2d 1330, 1334 (D.C.Cir. 1985). Accordingly, the court must either “provide the parties with notice and an opportunity to present evidence in support of their respective positions[,]” Kim, 632 F.3d at 719 (citation omitted), or otherwise ensure that the parties “have had a reasonable opportunity to contest the matters outside of the pleadings such that they are not taken by surprise!,]” Bowe-Connor v. Shinseki, 845 F.Supp.2d 77, 86 (D.D.C. 2012) (citation omitted). In the instant case, the complaint does not contain any attachments; however, both parties have attached outside documents to their briefs regarding AMO’s pending motion to dismiss. AMO’s submissions include: (1) an arbitration determination in a prior matter between AMO and MEBA (ECF No. 4-2); and (2) the text of two articles of the AFL-CIO constitution (ECF Nos. 4-3 (Art. XX), 4-4" }, { "docid": "18252074", "title": "", "text": "677 (D.C.Cir.2008) (internal quotation marks omitted). Additionally, in deciding a Rule 12(b)(6) motion, a court may consider “ ‘the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint,’ ” Ward v. D.C. Dep’t of Youth Rehab. Servs., 768 F.Supp.2d 117, 119 (D.D.C.2011) (quoting Gustave-Schmidt v. Chao, 226 F.Supp.2d 191, 196 (D.D.C.2002)), or “ ‘documents upon which the plaintiffs complaint necessarily relies’ even if the document is produced not by [the parties].” Id. (quoting Hinton v. Corr. Corp. of Am., 624 F.Supp.2d 45, 46 (D.D.C.2009)). III. DISCUSSION Defendants move to dismiss Plaintiffs Complaint on the grounds each claim is barred by collateral estoppel or res judicata. Specifically, Defendants allege Counts Two and Six of the Complaint are barred by collateral estoppel, and Counts One, Three, Four, Five, and Eight are barred by res judicata. Plaintiff argues that based on the claims raised in his prior federal action, collateral estoppel is inapplicable, but does not dispute any of Defendants’ claims regarding Plaintiffs D.C. Superior Court case. Pl.’s Opp’n at 8-9. As explained below, the Court finds Plaintiff is precluded from bringing Count Two under the doctrine of collateral estoppel, and Plaintiff is precluded from bringing Counts Six and Eight under the doctrine of res judicata. Although not barred, the Court in its discretion, declines to exercise supplemental jurisdiction over the remaining claims, and the case as a whole will be dismissed. A. Count Two is Barred by Collateral Estoppel Defendants argue that doctrine of collateral estoppel, or issue preclusion, bars the Plaintiff from re-litigating Count Two of the Complaint, which alleges Defendants violated the Right to Financial Privacy Act (“RFPA”), 12 U.S.C. §§ 3401 note, 3417, by disclosing Plaintiffs financial information to Defendant Finland. Judge Richard W. Roberts dismissed Plaintiffs RFPA claim in Plaintiffs prior federal suit for failure to state a claim. Defs.’ Ex. E at 5-6 (finding Plaintiff failed to state a valid claim under the RFPA where Plaintiff did not allege any disclosure of financial information to the government). “Under collateral estoppel, once a court has decided an issue of fact or" }, { "docid": "1556232", "title": "", "text": "light most favorable to the plaintiff and must accept as true all reasonable factual inferences drawn from well-pleaded factual allegations. In re United Mine Workers of Am. Employee Benefit Plans Litig., 854 F.Supp. 914, 915 (D.D.C.1994). Further, in deciding a Rule 12(b)(6) motion, a court may consider “the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint,” or “documents upon which the plaintiffs complaint necessarily relies even if the document is produced not by the plaintiff in the complaint but by the defendant in a motion to dismiss.” Ward v. D.C. Dep’t of Youth Rehab. Servs., 768 F.Supp.2d 117, 119 (D.D.C.2011) (citations omitted). III. DISCUSSION In Plaintiffs’ Amended Complaint, Plaintiffs clarify that they are bringing two sets of claims in this matter: (1) claims challenging the foreclosure and eviction proceedings against Plaintiffs (Counts I and VI), and (2) four False Claims Act (“FCA”) claims (Counts II-V). See Am. Compl. ¶¶ 1-2. The Court will first address whether it has personal jurisdiction over the Law Enforcement and Law Firm Defendants since these two defendants raised personal jurisdiction as a defense. The Court will next turn to Plaintiffs’ FCA claims and then to Plaintiffs’ challenges to the underlying foreclosure and eviction proceedings and evaluate whether Plaintiffs have stated any viable claim against the remaining Defendants, Citibank and Nationstar. Ultimately, the Court finds that Plaintiffs have failed to establish that this Court has personal jurisdiction over the Law Enforcement and Law Firm Defendants and, accordingly, those Defendants must-be dismissed from this case. The Court further finds that Plaintiffs’ FCA claims are fatally flawed on procedural grounds and that Plaintiffs have failed to state a claim relating to the underlying foreclosure and eviction proceedings. As no viable claims thus remain against Defendants Citibank and Nations-tar, this case must be dismissed in its entirety. A. Dismissal for Lack of Personal Jurisdiction over Law Enforcement and Law Firm Defendants The Law Enforcement and Law Firm Defendants each move to dismiss Plaintiffs’ Amended Complaint for, inter alia, lack of personal jurisdiction. The Court agrees that Plaintiffs have failed to establish" }, { "docid": "6668242", "title": "", "text": "do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). “Nor does a complaint suffice if it tenders naked assertion[s] devoid of further factual enhancement.” Id. (citation omitted). Rather, a complaint must contain sufficient factual allegations that, if 'accepted as true, “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 663, 129 S.Ct. 1937. In evaluating a Rule 12(b)(6) motion to dismiss, a court may consider “the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint,” or “documents upon which the plaintiffs complaint necessarily relies even if the document is produced not by [the parties].” Ward v. D.C. Dep’t of Youth Rehab. Servs., 768 F.Supp.2d 117, 119 (D.D.C.2011) (citations omitted). The court must view the complaint in a light most favorable to the plaintiff and must accept as true all reasonable factual inferences drawn from well-pleaded factual allegations. In re United Mine Workers of Am. Employee Benefit Plans Litig., 854 F.Supp. 914, 915 (D.D.C.1994); see also Schuler v. United States, 617 F.2d 605, 608 (D.C.Cir.1979) (“The complaint must be ‘liberally construed in favor of the plaintiff,’ who must be granted the benefit of all inferences that can be derived from the facts alleged.”). While the court must construe the complaint in the plaintiffs favor, it “need not accept inferences drawn by the plaintiff if such inferences are unsupported by the facts set out in the complaint.” Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994). Moreover, the court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citation omitted); accord Taylor v. FDIC, 132 F.3d 753, 762 (D.C.Cir.1997). While pro se complaints are held to a less stringent standard than complaints drafted by counsel, Moore v. Motz, 437" }, { "docid": "6668241", "title": "", "text": "matter jurisdiction because the real parties at interest are completely diverse, and the amount in controversy exceeds $75,000. B. Motion to Dismiss Federal Rule of Civil Procedure 12(b)(6) provides that a party may move to dismiss on the grounds that the complaint “fail[s] to state a claim upon which relief can be granted.” A 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 order to give the defendant fair notice of what the ,.. claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citation omitted). Although “detailed factual allegations” are not necessary to withstand a Rule 12(b)(6) motion to dismiss for failure to state a claim, a plaintiff must furnish “more than labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Id. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). “Nor does a complaint suffice if it tenders naked assertion[s] devoid of further factual enhancement.” Id. (citation omitted). Rather, a complaint must contain sufficient factual allegations that, if 'accepted as true, “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 663, 129 S.Ct. 1937. In evaluating a Rule 12(b)(6) motion to dismiss, a court may consider “the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint,” or “documents upon which the plaintiffs complaint necessarily relies even if the document is produced not by [the parties].” Ward v. D.C. Dep’t of Youth Rehab. Servs., 768 F.Supp.2d 117, 119 (D.D.C.2011) (citations omitted). The court must view the complaint in a" }, { "docid": "20625037", "title": "", "text": "respectively. See id. ¶¶ 29-37. Now before the Court is Defendant the District of Columbia’s motion to dismiss all seven of Mr. Patrick’s claims as to the District. See Def.’s Mot. Dismiss. The motion is now fully briefed and ripe for decision. III. LEGAL STANDARD To survive a Rule 12(b)(6) motion to dismiss for failure to state a claim, a complaint must contain sufficient factual allegations, accepted as true, to “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 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Although a court generally cannot consider matters beyond the pleadings at the motion-to-dismiss stage, it may consider “documents attached as exhibits or incorporated by reference in the complaint, or documents upon which the plaintiffs complaint necessarily relies even if the document is produced not by the plaintiff in the complaint but by the defendant in a motion to dismiss[.]” Ward v. D.C. Dep’t of Youth Rehab. Servs., 768 F.Supp.2d 117, 119 (D.D.C.2011) (internal citations and quotation marks omitted). IV. ANALYSIS A. Counts I — III: False Imprisonment, Assault and Battery, and Negligence The District argues that the Court should dismiss Mr. Patrick’s common law tort claims of false imprisonment (Count I), assault and battery (Count II), and negligence (Count III) because Mr. Patrick did not comply with the notice requirement in D.C. Code § 12-309. See Def.’s Mot. Dismiss 4-6. “In order to maintain a common law tort claim against the District, a plaintiff must satisfy the mandatory notice requirement set forth” in section 12-309. Feirson v. District of Columbia, 315 F.Supp.2d 52, 55 (D.D.C.2004). Section 12-309 provides: D.C. Code § 12-309. The “cause” requirement for adequate notice entails two conditions: the notice must “disclose ... the factual cause of the injury” and evince “a reasonable basis for anticipating legal" }, { "docid": "16355254", "title": "", "text": "167 L.Ed.2d 929 (2007). The court, which is required to assume that all well-pleaded allegations in the complaint are true, must find that the complaint is sufficient to “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955; see Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (“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.” (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955)). “The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. Legal conclusions masquerading as factual allegations ' are not enough to survive a motion to dismiss. Browning v. Clinton, 292 F.3d 235, 242 (D.C.Cir.2002). Although the court must, in general, limit its review to the allegations in the complaint, it may consider “documents upon which the complaint necessarily relies even if the document is produced not by the plaintiff in the complaint but by the defendant in a motion to dismiss.” Ward v. D.C. Dep’t of Youth Rehab. Servs., 768 F.Supp.2d 117, 119 (D.D.C.2011) (quoting Hinton v. Corr. Corp. of Am., 624 F.Supp.2d 45, 46 (D.D.C.2009)). B. Federal Rule of Civil Procedure 56 The defendants each attached to their replies in support of their dispositive motions police incident and arrest reports relating to the March 28, 2014 altercation that lead to Manganelli’s arrest, which had neither been attached nor referenced by the plaintiffs in the Complaint, nor cited by the defendants’ in their opening briefs. See Galiaudet Reply, Exhibit (“Ex”) 1 (MPD incident report); District Reply, Ex. A (MPD arrest/prosecution report). The Court therefore afforded the parties an opportunity to supplement their briefs in light of the MPD reports. See Dec. 14, 2015 Minute Order. The submission of the MPD reports as attachments to the defendants’ replies implicates Federal Rule of Civil Procedure 12(d), which provides that “[i]f, on a motion under Rule 12(b)(6) ... matters" }, { "docid": "20596619", "title": "", "text": "accord Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam). “[A] complaint [does not] suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955). Rather, a complaint must contain sufficient factual allegations that, if accepted as true, “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. In evaluating a Rule 12(b)(6) motion to dismiss for failure to state a claim, a court must construe the complaint in the light most favorable to the plaintiff and must accept as true all reasonable factual inferences drawn from well-pleaded factual allegations. In re United Mine Workers of Am. Employee Benefit Plans Litig., 854 F.Supp. 914, 915 (D.D.C.1994). Further, in deciding a Rule 12(b)(6) motion, a court may consider “the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint,” or “documents upon which the plaintiffs complaint necessarily relies even if the document is produced not by the plaintiff in the complaint but by the defendant in a motion to dismiss.” Ward v. D.C. Dep’t of Youth Rehab. Servs., 768 F.Supp.2d 117, 119 (D.D.C.2011) (citations omitted). A motion to dismiss may be granted on statute of limitations grounds only if apparent from the face of the complaint. See Nat’l R.R. Passenger Corp. v. Lexington Ins. Co., 357 F.Supp.2d 287, 292 (D.D.C.2005) (“A defendant may raise the affirmative defense of a statute of limitations via a Rule 12(b)(6) motion when the facts giving rise to the defense are apparent on the face of the complaint”). “Because statute of limitations defenses often are based on contested facts, thé court should be cautious in granting a motion to dismiss on such grounds;" }, { "docid": "21820288", "title": "", "text": "The plausibility standard does not require probability but instead “asks for more than a sheer possibility that a defendant Has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556, 127 S.Ct, 1955). A complaint may survive even if “recovery is very remote and unlikely” or the veracity of the claims are “doubtful in fact” if the factual matter alleged in the complaint is ‘‘enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555-56, 127 S.Ct. 1955 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)). “In evaluating a 12(b)(6) motion to dismiss for failure to state a claim, the court must construe the complaint ‘in favor -of the plaintiff, who must be granted the benefit of all inferences that can be derived from the facts alleged;’ ” Hettinga v. United States, 677 F.3d 471, 476 (D.C. Cir. 2012) (quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979)). However, the court “need not accept inferences drawn by the plaintiff[ ] if such inferences are unsupported by the facts set out in the complaint.” Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). Nor is the court bound to accept the legal conclusions of the non-moving party. See Taylor v. FDIC, 132 F.3d 753, 762 (D.C. Cir. 1997). In deciding a Rule 12(b)(6) motion, a court may consider “the facts alleged in the complaint, documents attached as exhibits dr incorporated by reference in the complaint,” or “documents upon which the plaintiffs complaint necessarily relies even if the document is produced not by the plaintiff in the complaint but by the defendant in a motion to dismiss.” Ward v. District of Columbia Dep’t of Youth Rehab Servs., 768 F.Supp.2d 117, 119 (D.D.C. 2011) (internal quotation marks omitted). III. DISCUSSION Sodexo’s sole cause of action in its First Amended Complaint is for breach of contract. NFP acknowledges that Sodexo entered into a contractual relationship with CMC, which was memorialized in April of 2008'as the Southeast Management Agreement, and further, that Plaintiff completed its performance of work" }, { "docid": "15134971", "title": "", "text": "(noting that a court must construe the complaint “liberally in the plaintiffs’ favor” and “grant plaintiffs the benefit of all inferences that can be derived from the facts alleged”). A court need not, however, “accept inferences drawn by plaintiffs if such inferences are unsupported by the facts set out in the complaint. Nor must [a] court accept legal conclusions cast in the form of factual allegations.” Kowal, 16 F.3d at 1276. In deciding a motion brought under Rule 12(b)(6), a court is restricted from considering matters “outside” the pleadings. Fed.R.Civ.P. 12(d) (requiring treatment as a motion for summary judgment if matters “outside” the pleadings are considered by the court). Matters that are not “outside” the pleadings a court may consider on a motion to dismiss include “the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint,” Gustave-Schmidt v. Chao, 226 F.Supp.2d 191, 196 (D.D.C.2002), or documents “upon which the plaintiffs complaint necessarily relies” even if the document is produced not by the plaintiff in the complaint but by the defendant in a motion to dismiss. Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir.1998); Cortec Industries, Inc. v. Sum Holding L.P., 949 F.2d 42, 47-48 (2d Cir.1991) (explaining that where the plaintiffs complaint has necessarily relied on a document but not made that document an integral part of the complaint by attaching it or incorporating it by reference and the defendant presents the document in a motion to dismiss, a court may consider the document without converting the motion to one for summary judgment); see also Marshall v. Honeywell Technology Solutions, Inc., 536 F.Supp.2d 59, 65 (D.D.C.2008) (“[W]here a document is referred to in the complaint and is central to the plaintiffs claim, such a document attached to the motion papers may be considered without converting the motion [to dismiss] to one for summary judgment.”) (internal quotation and citation omitted); Marsh v. Hollander, 339 F.Supp.2d 1, 5 n. 4 (D.D.C.2004) (same); Vanover v. Hantman, 77 F.Supp.2d 91, 98 (D.D.C.1999), aff'd 38 Fed.Appx. 4 (D.C.Cir.2002) (same). In addition, a court may consider “matters" } ]

[ { "docid": "6182965", "title": "", "text": "STONE, Circuit Judge. This is a petition to review a decision of the Board of Tax Appeals affirming a redetermination of the Commissioner assessing an income tax against petitioner for the year 1931. The sole question for determination below and here is whether petitioner is a copartnership or is an “association” within the meaning of section 701, Revenue Act of 1928 (45 Stat. 791, 878), such associations being taxable as corporations under section 52 of the act (26 U.S.C.A. § 52 and note). Petitioner was formed under an instrument which thereafter was amended and during 1931 was operative. ' Petitioner concedes that there is language in this instrument which is “unfortunate” but contends that the issue should be resolved regardless of the provisions of this instrument, provided the evidence shows that the concern “in its actual mode of operation has all of the characteristics of a partnership and none of a corporation.” It is a part of or related to this contention that petitioner argues that the purpose and intent and desire of the parties was to form a partnership. While it would be going too far to say that what the parties may have done under the agreement, m so far as it affects their method of operation, should be entirely ignored, yet where they operate under an instrument the relationship between the parties should be governed by the terms of that instrument rather than by what the parties may have thought or even have done under it. Helvering v. Coleman-Gilbert Associates, 296 U.S. 369, 373, 56 S.Ct. 285, 80 L.Ed. 278; Commissioner v. Vandegrift Realty & Investment Co., 82 F.(2d) 387, 390 (C.C.A.9). Unquestionably, determination of the relationship between the parties here must depend upon that created by this instrument. The instrument itself is quite unique. It is easy to gather from it the motive and purpose. From it we see that Cyrus F. Howard had been engaged as an individual in the business of buying, selling, receiving and handling for collection all kinds of accounts, domestic and foreign notes, mortgages, and evidences of indebtedness of any nature" } ]

[ { "docid": "8068271", "title": "", "text": "dependent on the fact that it is owned by the principal—the Tax Court held that the taxpayers had failed in their burden of proving the normal incidents of an agency relationship between the partnership and the corporation. APPLICABLE LAW The bulk of the Tax Court’s opinion addresses the question of whether or not Mateo Corporation should be disregarded as a separate taxable entity. We have no quarrel with the Tax Court’s conclusion that numerous Supreme Court, Fifth Circuit, and Tax Court decisions have established beyond peradventure that Mateo Corporation cannot be disregarded; however, that is not an issue in this case. Taxpayers here do not seek, nor did they seek below, to disregard Mateo Corporation; nor do they argue that it should be treated as a sham or fictitious entity. Taxpayers acknowledge, and indeed insist, that Mateo Corporation should be recognized. Taxpayers’ argu ment is that Mateo Corporation is the corporate general partner of the limited partnership, that the partnership is the equitable owner of the real estate, and that Mateo Corporation properly held legal title, and performed other partnership functions, in its own corporate name without disclosing the fiduciary capacity. Taxpayers argue that the Service has recognized the form taxpayers adopted only partway; that is, taxpayers argue that the Service seeks to recognize the establishment of the corporation, but to disregard the status of the corporation as general partner in the limited partnership. The issue before this court is whether the alleged relationship—i. e., Mateo Corporation as an undisclosed general partner of the limited partnership—shall be recognized for tax purposes despite legal title lying in Mateo Corporation. When a taxpayer seeks to establish an agency relationship with a controlled corporation, the standards against which we test this relationship are established by the Supreme Court case, National Carbide Corp. v. Commissioner of Internal Revenue, 336 U.S. 422, 69 S.Ct. 726, 93 L.Ed. 779 (1949). There a parent corporation entered into a contract with its four subsidiary corporations establishing each subsidiary as agent for the parent. The parent was to furnish working capital, management, and office facilities to the subsidiaries. In" }, { "docid": "616411", "title": "", "text": "individuals or as a partnership should be characterized as ordinary income or capital gain. As provided by section 761(a) “the term ‘partnership’ includes a syndicate, group, pool, joint venture or other unincorporated organization through or by means of which any business, financial operation, or venture is carried on.” The regulations expand and explain this definition and include other groups not commonly called partnerships. As noted by the regulations mere coownership of property does not cause the creation of a partnership. However, coowners may be partners if the determination is made that they intended actively to carry on the business or venture as a partnership. Mihran Demirjian, 54 T.C. 1691 (1970), affd. 457 F. 2d 1 (3d Cir. 1972); George Rothenberg, 48 T.C. 369 (1967). The burden of proof is upon the petitioners. George Rothenberg, supra. In the present case we believe the evidence shows that the taxpayers did intend to carry on actively their business affairs as a partnership, that they so held themselves out; and that the latter part of section 1.761-l(a), Income Tax Regs., applies to the situation at hand. The entity known as McManus, Gutleben, and Chick was organized by the taxpayers in 1954. After purchasing a tract of land, plans were submitted to the planning commission to subdivide certain property on two separate occasions. One set of plans was accompanied by a cover letter signed by petitioner as partner on behalf of the taxpayers. Improvements were made to the tract and the individual plots were sold by 1960. After completing their activity with respect to this tract, the taxpayers then acquired tract 2347. Subdivision plans were again submitted on their behalf and improvements were made to the property. The taxpayers were involved in numerous business negotiations with respect to the property. Some of these negotiations resulted in rental and sale agreements. These negotiations were handled primarily by either petitioner or Gutleben, each with at least the apparent authority to make a commitment for the others. From 1961 through 1970 partnership tax returns were filed in the name of McManus, Gutleben, and Chick. These returns reflect the" }, { "docid": "14331234", "title": "", "text": "value of his distributed share, and liquidation was given in the sum of $547,183.13. The Government, ignoring the corporate entity, taxed, the venture as a joint venture and asserted a deficiency which Herbert paid on July 18, 1950. A timely claim for refund was made, but not acted on by the Government within six months. This action was instituted to recover it. The Treasury Department chose to disregard the entire series of corporate acts which we have just delineated. Can such legal acts be disregarded at will? Structures chosen by business men for carrying on business, whether they be in the form of partnerships or corporations, postulate mortality. It is assumed that whatever the structure is, it might not go on forever. And it is the established law of this circuit that when a partnership is dissolved, either by the act of the parties, by operation of law, by the death of a surviving party, or by a decree of court after litigation between the partners, the moneys received by the withdrawing partner for his share of the assets, even if pay able over a period of years, are not income, but distribution of capital assets from which a capital gain or loss results. And when, on voluntary dissolution, under the law, a choice lies between several methods, the taxpayer may choose one which is not taxable. When he makes the choice, it cannot be swept aside by an administrative fiat. The thought was expressed very tersely by the Court of Appeals for the Ninth Circuit in a significant case: “Where for legitimate business purposes a person has a choice of conducting his business transactions without tax liability, such a liability does- not arise simply because it would have arisen if another process had been chosen.” These cases put into effect the thought expressed by Mr. Justice Holmes when he wrote: “We do not speak of evasion, because, when the law draws a line, a case is on one side of it or the other, and if on the safe side is none the worse legally that a party has" }, { "docid": "3307074", "title": "", "text": "shall an organization be considered to be organized exclusively for one or more exempt purposes, if, by the terms of its articles, the purposes for which the organization is created are broader than the purposes specified in Section 501(c)(3).” 26 C.F.R. § 1.501(c)(3)-l(b)(l)(ii). The articles of incorporation for the corporations sole at issue here do not limit the corporations sole to “exempt purposes.” The articles permit the corporations sole to “carry on any business or number of business,” “[e]ngage in any type of trade,” “buy, sell, lease, mortgage, and in every way deal in real and personal property,” [b]e a promoter, partner, member, beneficiary, associate or manager of any partnership, joint venture, trust or any other entity, among many other listed activities. The articles of incorporation of the corporations sole permit the corporation to operate like any other corporation, however, purport to exempt the corporations sole from any federal tax liability. This is clearly false and fraudulent. Next, an organization is tax exempt if it serves a “public rather than a private interest.” 26 C.F.R. § 1.501(c)(3) — l(d)(ii). It cannot be organized or operated “for the benefit of private interests such as a designated individual, the creator or his family, [or] shareholders of the organization[.]” Id. Similarly, if an organization’s earnings “inure in whole or in part to the benefit of private shareholders or individuals,” it is not tax exempt. 26 C.F.R. § 1.501(c)(3)— 1(b)(2). The corporations sole promoted by defendant and ATC are established for the benefit of the founders in an overt attempt to shield income from taxation. For this reason, the corporations sole are not tax exempt. Further, it is not proper to “assign” income from an individual taxpayer to a corporation sole without first paying federal taxes on the income, particularly when the income comes from wages for employment. Further, a taxpayer cannot deduct “contributions” he or she makes to even a legitimate religious organization or other charity which the taxpayer owns and controls. United States v. Estate Preservation Services, 202 F.3d 1093, 1101 (9th Cir.2000). Finally, I find that the following statements by defendant" }, { "docid": "17788680", "title": "", "text": "recognized in Maiatico v. Commissioner (C. A. D. C., 1950), 183 F. 2d 836; Greehberger v. Commissioner (C. A. 7, 1949), 177 F. 2d 990; Thompson v. Riggs (C. A. 8, 1949), 175 F. 2d 81; and the definition of a partnership in section 3797 (a) (2), I. K. C., has been used to cover situations where trusts were members of a partnership as there defined. Theodore D. Stern, supra. The trust created by petitioner was a real entity. It was as much a partner in the enterprise as the other co-partner. It retained its distributive share of partnership income and used the income for trust purposes. Tested by each of the factors prescribed in Commissioner v. Culbertson, 337 U. S. 733 (1949), we come inevitably to the conclusion that the petitioner and the trustee in good faith and acting with a business purpose intended to j oin together in the present conduct of the enterprise. In so holding, we have carefully considered our decision in Herman Feldman, 14 T. C. 17 (1950), affd. (C. A. 4, 1950) 186 F. 2d 87, and the factors there weighed in determining that a trust for the taxpayer’s minor son was not a true partner in a partnership composed of the taxpayer and his brothers. In that case, we were unable to find an intent that the trust was to be a bona fide partner in carrying on the business. Here, we have found that the trust was intended to be a bona fide partner, that the trustee brought credit facilities and business contacts theretofore unavailable to the business, that the trustee assisted in formulating the policies for the business, and that the trustee actively participated in the conduct of the business. What we have said with respect to the taxability of the income of Louis-White Motors is equally true with respect to the taxability of the income of L-W' Sales Company. Weighed by any test, the L-W Sales Company was a valid partnership, created for a business purpose by partners who intended to join together in the present conduct of a business" }, { "docid": "3486180", "title": "", "text": "disregarding the corporate entity for tax purposes. Where the purpose for creating the corporation is to gain an advantage under the law of the state of incorporation, relieve the stockholders from personal liability for debts created by the corporation, or serve the creator’s personal 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. Where the taxpayer, for business purposes of his own, adopts the corporate form for carrying on a business, the choice of corporate advantage to do business requires acceptance of the tax disadvantages. Here, the corporation came into existence as a legal entity on December 22, 1948. The business purpose of the corporation, as stated in its articles of incorporation, was to start, acquire, print, publish and circulate a newspaper. Upon the coming into being of the corporation, the contracts entered into for the purchase of the printing press and equipment by the partnership were can-celled and new contracts entered into by the seller and the corporation. A bank account was opened and maintained in the corporate name; complete books of account were set up for the corporation, which included a capital account; publication of the newspaper was commenced on March 20,1949, and thereafter carried on in the corporate name; the taxpayers caused to be published in the newspaper a sworn statement that the business was that of a corporation and they were its sole stockholders; and in order to retain second-class mail privileges the taxpayers caused the corporation to state that it was the owner of the newspaper. The corporation had a corporate seal, which it used in the execution of contracts. The corporation in its capital account was credited with the press and other equipment purchased and with cash advanced by the taxpayers to the corporation. The corporation hired employees, secured an employer’s identification number and filed returns of Federal income taxes withheld and filed an employer’s tax return. The entire business of the newspaper was transacted in the corporate name. The corporation obtained" }, { "docid": "5628132", "title": "", "text": "PER CURIAM. In 1965 plaintiff Rolwing-Moxley Company, Elot H. Raffety Farms, Inc., Missouri corporations, and L. D. Joslyn, attorney for Raffety Farms and a director and shareholder of Rolwing-Moxley, orally agreed to establish a Mexican enterprise, El Sombrero Sociedad de Responsibilidad Limitada (El Sombrero) which would farm cotton in Mexico. The partners agreed that Raffety Farms would own a one-half interest in the enterprise and plaintiff and Joslyn would each own one-fourth interests. In 1966 and 1967 the partners advanced a total of $444,-000 to El Sombrero in the following shares: Raffety Farms — $222,000, plaintiff and Jos-lyn — $111,000 each. El Sombrero suffered financial reverses and eventually collapsed. Plaintiff subsequently sought to deduct the sums it had extended to El Sombrero as “bad debts” under 26 U.S.C. § 166(a)(1) of the Internal Revenue Code, or alternatively as operating losses deductible under 26 U.S.C. § 165(a) or ordinary business expenses, 26 U.S.C. § 162(a). The Internal Revenue Service (IRS) disallowed the deductions, and plaintiff sought a refund. The district court agreed with the IRS that plaintiff had received an equitable interest in El Sombrero proportionate to the sums advanced and that the advances, rather than “debt,” were contributions to capital, deductible as capital losses under 26 U.S.C. 165(f). The relationship among the partners has been considered by this court in Raffety Farms, Inc. v. United States, 511 F.2d 1234 (8th Cir.), cert. denied, 423 U.S. 834, 96 S.Ct. 57, 46 L.Ed.2d 52 (1975), in which this court held that Raffety Farms’ contribution to El Sombrero represented a capital asset and its losses were deductible only as capital losses. Plaintiff, however, distinguishes its arrangement with El Sombrero from that of Raffety Farms. Of the partners only plain tiff received notes evidencing its purported loan to El Sombrero. On its checks issued to El Sombrero, its notes receivable ledger and its financial statement, plaintiff characterized the advances as loans and notes receivable. The district court, in determining that the amounts extended by plaintiff did not qualify as bona fide debts arising from a debtor-creditor relationship, relied on the guidelines set forth in" }, { "docid": "3486179", "title": "", "text": "debts resulting from the money loaned to the corporation by the partnership should be considered as business bad debts and allowed as deductions by the partnership for 1949 and 1950. The Tax Court decided each of the four contentions adversely to the taxpayers. Under the provisions of N.M. Stat.Ann.1953, Vol. 8, § 51-2-11; N.M. Stat.Ann.1941, Vol. 4, § 54-211, the incorporators, Langdon L. Skarda, Lynell G. Skarda and Cash T. Skarda, upon the filing of the certificate of incorporation of the Chronicle Publishing Company, became and constituted a body corporate by the name set forth in such certificate. For tax purposes, where the purpose for the creation of the corporation is a business one or the creation is followed by business activity, the corporate entity will not be disregarded. Complete stock ownership and control resulting from such ownership are not of significance in determining tax liability. The fact that the taxpayers exercised complete dominion and control over the corporation, were in charge of its administration and management, and fully directed its policies does not justify disregarding the corporate entity for tax purposes. Where the purpose for creating the corporation is to gain an advantage under the law of the state of incorporation, relieve the stockholders from personal liability for debts created by the corporation, or serve the creator’s personal 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. Where the taxpayer, for business purposes of his own, adopts the corporate form for carrying on a business, the choice of corporate advantage to do business requires acceptance of the tax disadvantages. Here, the corporation came into existence as a legal entity on December 22, 1948. The business purpose of the corporation, as stated in its articles of incorporation, was to start, acquire, print, publish and circulate a newspaper. Upon the coming into being of the corporation, the contracts entered into for the purchase of the printing press and equipment by the partnership were can-celled and new contracts entered into" }, { "docid": "5628133", "title": "", "text": "plaintiff had received an equitable interest in El Sombrero proportionate to the sums advanced and that the advances, rather than “debt,” were contributions to capital, deductible as capital losses under 26 U.S.C. 165(f). The relationship among the partners has been considered by this court in Raffety Farms, Inc. v. United States, 511 F.2d 1234 (8th Cir.), cert. denied, 423 U.S. 834, 96 S.Ct. 57, 46 L.Ed.2d 52 (1975), in which this court held that Raffety Farms’ contribution to El Sombrero represented a capital asset and its losses were deductible only as capital losses. Plaintiff, however, distinguishes its arrangement with El Sombrero from that of Raffety Farms. Of the partners only plain tiff received notes evidencing its purported loan to El Sombrero. On its checks issued to El Sombrero, its notes receivable ledger and its financial statement, plaintiff characterized the advances as loans and notes receivable. The district court, in determining that the amounts extended by plaintiff did not qualify as bona fide debts arising from a debtor-creditor relationship, relied on the guidelines set forth in United States v. Uneco, Inc., 532 F.2d 1204, 1208 (8th Cir. 1976). Plaintiff’s notes contained no fixed maturity date or provision for interest. The advances were unsecured, and repayment was predicated entirely upon the venture’s financial success. Plaintiff in fact received no interest or payment of any part of the principal. Plaintiff’s contribution was proportionate to its ownership interest in the enterprise, and even if the purported loan had been repaid, plaintiff would have continued to receive a one-fourth interest in El Sombrero’s profits. El Sombrero was under-capitalized and had to seek additional financing from Cook and Company. Plaintiff’s advances were subordinate to El Sombrero’s debt to Cook and Company. Moreover, excerpts from the minutes of a meeting among plaintiff’s officers in May 1965 are suggestive of intent to invest capital in the Mexican association. We note, in addition, the testimony of plaintiff’s partners in the district court. When asked whether his understanding of the arrangement entitled plaintiff (as a creditor of El Sombrero) to “get its money out of this venture before [Joslyn] got" }, { "docid": "5628134", "title": "", "text": "United States v. Uneco, Inc., 532 F.2d 1204, 1208 (8th Cir. 1976). Plaintiff’s notes contained no fixed maturity date or provision for interest. The advances were unsecured, and repayment was predicated entirely upon the venture’s financial success. Plaintiff in fact received no interest or payment of any part of the principal. Plaintiff’s contribution was proportionate to its ownership interest in the enterprise, and even if the purported loan had been repaid, plaintiff would have continued to receive a one-fourth interest in El Sombrero’s profits. El Sombrero was under-capitalized and had to seek additional financing from Cook and Company. Plaintiff’s advances were subordinate to El Sombrero’s debt to Cook and Company. Moreover, excerpts from the minutes of a meeting among plaintiff’s officers in May 1965 are suggestive of intent to invest capital in the Mexican association. We note, in addition, the testimony of plaintiff’s partners in the district court. When asked whether his understanding of the arrangement entitled plaintiff (as a creditor of El Sombrero) to “get its money out of this venture before [Joslyn] got [his] money out,” L. D. Joslyn stated, “Absolutely not. * * * I understood that we, as close as we were together, would operate that thing and keep money in there as long as was necessary until we had capital to operate and take money out when we thought it was provident and businesslike to do so.” Elot Raffety testified that had El Sombrero earned a profit in 1966 of $100,000, the sum would have been divided among the partners according to their contributions, i. e., 50 percent to Raffety Farms and 25 percent to plaintiff and Joslyn. There was no indication that plaintiff’s partners intended plaintiff’s advances to be repaid before the others received a share of the profits or that they intended plaintiff to receive the amount of $111,000 as well as its share of the profits. Accordingly, we affirm on the basis of Judge Meredith’s well-reasoned opinion. . The Honorable James H. Meredith, Chief United States District Judge for the Eastern District of Missouri." }, { "docid": "12249962", "title": "", "text": "1953, traveled to Europe and to Mexico to investigate the possibility of locating plants there for civilian use manufacture. A Mexican corporation had even been organized and a bank account opened in that country. The Tax Court, however, decided the unreasonable accumulation issue against the taxpayer corporation. The court expressed doubt whether the facts set forth by the corporation in its responsive statement under § 534(c) were “sufficient to support the listed grounds” but went on to hold that even if it assumed that the burden of proof was on the Commissioner, he had successfully met that burden. The Tax Court emphasized the absence of declaration of any dividends during the entire five year period; the increase in earned surplus and undivided profits from zero to more than two an a half million dollars; the Goodalls’ complete control; their continuous withdrawal of corporate funds for their own or partnership purposes; the growth of these withdrawals to more than $1,600,000 by May 31, 1954; and the use of most of the withdrawals for the oil operations and thus “for purely personal expenditures or for other ventures of the Goodalls”. The court observed, “Such continual use of the corporate funds strongly indicates, in our opinion, that its earnings and profits to this extent were not needed in the operation of the corporation’s business and that such amounts were accumulated beyond its reasonable needs within the meaning of the statute”. The court then examined the grounds stated by the corporation in justification of the accumulation. It concluded that none of them had merit. It was not convinced by the purported expansion plans because the trips Mr. Goodall made in 1953 were no more than exploratory; there was no showing that earnings accumulated in prior years were insuffi cient for this purpose; there was no showing that such expansion plans were contemplated formally; and any such plans evaporated when the decedent died in October 1953, seven months prior to the end of fiscal 1954. The court dismissed the factor of potential renegotiation liability because it was not until July 1952 (which was in fiscal" }, { "docid": "16530399", "title": "", "text": "the same four tests to determine whether a professional association is a corporation or a partnership for tax purposes. In addition, however, it imposes further conditions which the organization must also meet in order to be classified as a corporation for tax purposes. Only professional service organizations are subject to Subsection (h) and all other organizations, which desire corporate tax treatment need only pass the general requirements of Subsections (a-g). The relevant statutes which the regulations in question purport to construe are as follows: “§ 7701(a) (1) Person. The term ‘person’ shall be construed to mean and include an individual, a trust, estate, partnership, association, company or corporation. (2) Partnership and partner. The term ‘partnership’ includes a syndicate, group, pool, joint venture, or other unincorporated organization, through or by means of which any business, financial operation, or venture is carried on, and which is not, within the meaning of this title, a trust or estate or a corporation; * (Emphasis supplied.) The taxpayer’s position is that an organization which meets the state law requirements of a corporation should, for federal income tax purposes, be classified as a corporation, unless it lacks a “business purpose” under the judicial doctrine of Gregory v. Helvering, 293 U.S. 465, 55 S.Ct. 266, 79 L.Ed. 596 (1935). Therefore, since Drs. Hill & Thomas Co. is characterized as a corporation under Ohio law, and since it has a “business purpose,” Drs. Hill & Thomas Co. arguably should be taxed as a corporation. As a matter of statutory interpretation, according to the taxpayer’s position, Congress has clearly indicated its intent with respect to abuse of the corporate form through several highly particularized and articulated statutory sections; for example, the reasonable salary limitation, the collapsible corporation provisions, the person holding company tax, the accumulated earnings tax, etc. Section 7701 is apparently not intended as a regulatory provision but serves only a broad definitional or taxonomical function. Furthermore, the plaintiff suggests that any attempt by the Treasury through regulation or otherwise to tax an incorporated entity as a partnership (on any other theory but the “business purpose” test) runs" }, { "docid": "7096089", "title": "", "text": "that interpretation here. Prior to 1948 the losses sustained were admittedly the losses of the corporation. Since the creation of the joint venture did not change the functioning of Oxford Mills, the control of its operations, or affect its ■ ownership, the Tax Court will have to determine on remand whether the-change in legal relations effected by the profit and loss agreements of 1948 and 1949 was a sufficient basis upon which to shift the losses from Oxford to the petitioners. We remand the cause to the Tax Court for further proceedings there in accordance with the views expressed in this opinion. . See also Kocin v. United States, 2 Cir., 1951, 187 F.2d 707, where the Commissioner disallowed a business expense deduction claimed by the taxpayer corporation for commissions paid to a partnership composed of stockholders, officers and employees Of the taxpayer. The partnership was organized to take over the selling function previously performed by the taxpayer. We sustained the Commissioner’s determination, relying on Gregory v. Helvering, because “the partnership served no business purpose.” 187 F.2d 707, 708. HAND, Circuit Judge (dissenting). For the reasons I have stated in Gilbert v. Commissioner, 2 Cir., 248 F.2d 399, I do not agree with the Tax Court’s finding that “the profit and loss arrangements entered into between the petitioner and Oxford were not bona fide.” This the court followed by saying that the “attempt to claim the corporation’s losses as his own was a plan for improper tax avoidance.” These findings do not seem to me to dispose of the appeal. I would, therefore, also remand the case, although for the same finding, mutatis mutandis, that I have suggested in the Gilbert case. Although it is. hard to believe that the Tax Court will make any finding other than that the petitioners did not suppose . that the form they chose appreciably affected any beneficial interests that they had in the venture, other than taxwisé; .nevertheless it is that court and not we .that must make-the finding, if the peti-tioners so desire." }, { "docid": "11483003", "title": "", "text": "investments and need not furnish managerial skills. Shareholders frequently change and must be ignored for jurisdictional purposes; only the entity continues. A professional corporation does not separate ownership from control even in principle, and it offers no opportunity for diversification either; a P.C. is scarcely different economically from a partnership. Each shareholder of a Missouri professional corporation must be a current employee licensed to provide the services in which the firm specializes, or another entity consisting solely of such persons. See Mo.Rev. Stat. § 356.111. Yet Alameda County did not issue stock; the nature and negotiability of an entity’s securities thus can’t be the distinguishing feature of a corporation under federal law. Alameda County was a governmental body, with legal attributes (other than entity status) utterly unlike those of a business corporation. Indeed, no matter what feature one names as the potential dividing line, it is possible to find a decision of the Supreme Court on the other side. That makes life hard for an intermediate appellate court. We must choose between letting nomenclature control and trying vainly to identify which legal characteristics distinguish corporations from other entities. The former approach is wrong in principle, the latter untenable in practice. Forced to choose between these options, I join the majority in thinking that it is better to let names control than to set off on a snipe hunt. Carden, the Court’s most recent word, is essentially formal. A formal approach has at least the virtue of certainty, a desirable feature in a jurisdictional rule. It also produces consistency. Professional corporations were created to permit lawyers, physicians, accountants and others to set up firm-wide tax-advantaged pension plans at a time when federal law restricted that opportunity to corporations. States created entities with the corporate name but the functional features of a professional partnership. If that gimmick opens the door to federal tax benefits, why not to citizenship under § 1332? (The federal rules for pensions were changed in 1992, which may explain why most professionals today opt for limited liability partnerships or other non-corporate forms of organization, but this does not" }, { "docid": "22365056", "title": "", "text": "assertion that “an association whose citizenship, for diversity purposes, is determined by aggregating the citizenships of each of its members” could “[w]ith equal plausibility ... be characterized as an ‘aggregation’ composed of its members, or an ‘entity’ comprising its members.” Post, at 590, n. 6. We think it evident that Carden decisively adopted an understanding of the limited partnership as an “entity,” rather than an “aggregation,” for purposes of diversity jurisdiction. See 494 U. S., at 188, n. 1. An additional anomaly, under the particular facts of the present ease, is that the two individual Mexican partners, whom the dissent treats like parties for purposes of enabling their withdrawal to perfect jurisdiction, were brought into the litigation personally by the court’s granting of Dataflux’s motion to add them as parties for purposes of Dataflux’s counterclaim. The motion was made and granted under Federal Rule of Civil Procedure 13(h), which applies only to “[plersons other than those made parties to the original action.” (Emphasis added.) Justice Ginsburg, with whom Justice Stevens, Justice Souter, and Justice Breyer join, dissenting. When this lawsuit was filed in the United States District Court for the Southern District of Texas in 1997, diversity of citizenship was incomplete among the adverse parties: The plaintiff partnership, Atlas Global Group (Atlas), had five members, including a general partner of Delaware citizenship and two limited partners of Mexican citizenship, App. 98a; the defendant, Grupo Dataflux (Dataflux), was a Mexican corporation with its principal place of business in Mexico, id., at 18a. In a transaction completed in September 2000 unrelated to this lawsuit, all Mexican-citizen partners withdrew from Atlas. Id., at 98a, 122a-123a. Thus, before trial commenced in October 2000, complete diversity existed. Only after the jury returned a verdict favorable to Atlas did Dataflux, by moving to dismiss the case, draw the initial jurisdictional flaw to the District Court’s attention. The Court today holds that the initial flaw “still burden[s] and run[s] with the case,” Caterpillar Inc. v. Lewis, 519 U. S. 61, 70 (1996); see ante, at 572-576; consequently, the entire trial and jury verdict must be nullified. In" }, { "docid": "8431549", "title": "", "text": "distribution of increased tax liabilities shared by the previous partnership. Where a method of accounting differs from that under which the taxpayer’s income for a preceding calendar year was computed, Section 481(a) provides for adjustments in previous years which are determined to be necessary solely by reason of the change, in order to prevent an amount from being duplicated or omitted. Notwithstanding the adjustment provisions of Section 481(a), a corporation formed for a business purpose is a separate entity and a separate taxpayer from the stockholders who are responsible for its creation. Moline Properties v. Commissioner, 319 U.S. 436, 63 S.Ct. 1132, 87 L.Ed. 1499 (1943). And because of the separate taxable corporate entity, it has been held that where the change in the accounting practices is ordered for the first year of the corporation’s existence, the corporation had no preceding taxable year, and, therefore, Section 481 is inapplicable. Ezo Products Co., supra, at 394. “Equally clearly, section 481 may be applied only to the petitioner [corporation] and not to make adjustments with respect to its predecessor [partnership].” Dearborn Gage Co., 48 T.C. 190, 198 (1967) citing E. Morris Cox, 43 T.C. 448 (1965); Ezo Products Co., supra. Judge Tannewald’s observations in Dearborn seem pertinent to our facts: “We recognize that, if petitioner [corporation] had never been formed, and the predecessor partnership had continued in büsiness, and the issue before us involved a comparable change in the latter’s method of accounting for overhead costs, respondent . . . would, under the applicable decisions, have been required, in making the necessary computations, to . [make adjustments] both in the opening inventory and closing inventory for the . . . [previous years permitted by Section 481]. Thus, petitioner- — a taxpayer separate and distinct from its predecessor — appears to fare worse than its predecessor would have. We also recognize . . . the tax benefit of the deductions . taken by petitioner’s predecessor may not have been as great as the tax burden which our rationale now requires petitioner to bear, e.g., because the partners may have been in lower tax" }, { "docid": "616412", "title": "", "text": "Regs., applies to the situation at hand. The entity known as McManus, Gutleben, and Chick was organized by the taxpayers in 1954. After purchasing a tract of land, plans were submitted to the planning commission to subdivide certain property on two separate occasions. One set of plans was accompanied by a cover letter signed by petitioner as partner on behalf of the taxpayers. Improvements were made to the tract and the individual plots were sold by 1960. After completing their activity with respect to this tract, the taxpayers then acquired tract 2347. Subdivision plans were again submitted on their behalf and improvements were made to the property. The taxpayers were involved in numerous business negotiations with respect to the property. Some of these negotiations resulted in rental and sale agreements. These negotiations were handled primarily by either petitioner or Gutleben, each with at least the apparent authority to make a commitment for the others. From 1961 through 1970 partnership tax returns were filed in the name of McManus, Gutleben, and Chick. These returns reflect the various sources of income and expenses and the equal division of the net gain or loss. The accountant who prepared these returns testified that it was always the taxpayers’ intention to share equally in this venture. Books and records were also kept in the partnership name and the capital account reflects entries for partners’ drawing in equal amounts. In July 1967 the taxpayers opened a checking account with each individual signing the signature card as a partner in McManus, Chick & Gutleben, et al. The signature card authorizes the bank to conduct business with any of these individuals. Petitioner, on two separate occasions in correspondence with the respondent protesting changes to his individual income tax return, stated that he was a member of a partnership known as McManus, Gutleben & Chick and that tract 2347 was its asset. Petitioners argue that the taxpayers never intended to enter into a partnership, that there is no existing written or oral partnership agreement, and that the partnership tax returns were filed merely as a matter of convenience. The" }, { "docid": "3486182", "title": "", "text": "normal short-term commercial credit from those with whom it dealt. It issued approximately 3,000 checks on its corporate bank account. The taxpayers treated the corporation as an entity separate from themselves. When they made loans to the corporation they took back promissory notes in which the corporation was maker and the partnership payee. After the corporation’s right to continue business was forfeited through failure to file the required annual report, the taxpayers caused the corporation to file such report and restore its right to transact business. While there were no formal stockholders’ meetings or directors’ meetings, the three incorporators were named as directors to act for the corporation for the first three months of its existence and they continued as directors until their successors were elected. Lynell G. Skar- da and Cash T. Skarda acted as president and secretary, respectively, of the corporation and it is a reasonable inference that they were informally authorized so to do by the three incorporators, although no formal election was had at a board of directors’ meeting. The articles signed by the incorporators certified that each of the three incorporators had subscribed for four shares of stock. The corporation acquired a capital in excess of $25,000. That capital was furnished by the incorporators and was, in our opinion, a substantial compliance with N.M. Stat.Ann.1953, Vol. 8, § 51-4-2; N.M. Stat.Ann.1941, Vol. 4, § 54-1102. Lynell Skarda testified that such capital was provided for the corporation for the purpose of its incorporation. Moreover, statutory conditions to the right to engage in business, to be performed after the corporation has been formed, are conditions subsequent, and while a non-compliance therewith may give the state a right to proceed to forfeit the franchise, such non-compliance in the absence of such proceeding does not in anywise affect the legal existence of the corporation. We think it clear that the corporation was created for a business purpose; that it engaged in business activities, and that the purposes which led the taxpayers to organize the corporation were effectuated. The contention of the taxpayers that if a separate corporate entity existed," }, { "docid": "7096088", "title": "", "text": "in 1948 and 1949 may have indeed created rights and duties between the parties to those agreements ; and also may have created rights and duties between the contracting parties, on the one hand, and third persons dealing with the contracting parties on the other. Nevertheless these agreements in no way affected the control of Oxford or the operation of the business carried on by Oxford. The situation here is akin to that in Gregory v. Helvering, 1935, 293 U.S. 465, 55 S.Ct. 266, in which, although the newly created corporation undoubtedly existed, the Supreme Court held that the corporate entity must be disregarded for tax purposes because it did not serve “a. business purpose” and was, therefore, outside the intent of the statute The interpretation which this court gave to Gregory in Kraft Foods Co. v. Commissioner, 1956, 232 F.2d 118, 128, is of particular significance. “[It] hold[s] that transactions, even though real, may be disregarded * ' *. * if they take place between taxable entities which have no real existence.” We follow that interpretation here. Prior to 1948 the losses sustained were admittedly the losses of the corporation. Since the creation of the joint venture did not change the functioning of Oxford Mills, the control of its operations, or affect its ■ ownership, the Tax Court will have to determine on remand whether the-change in legal relations effected by the profit and loss agreements of 1948 and 1949 was a sufficient basis upon which to shift the losses from Oxford to the petitioners. We remand the cause to the Tax Court for further proceedings there in accordance with the views expressed in this opinion. . See also Kocin v. United States, 2 Cir., 1951, 187 F.2d 707, where the Commissioner disallowed a business expense deduction claimed by the taxpayer corporation for commissions paid to a partnership composed of stockholders, officers and employees Of the taxpayer. The partnership was organized to take over the selling function previously performed by the taxpayer. We sustained the Commissioner’s determination, relying on Gregory v. Helvering, because “the partnership served no business purpose.”" }, { "docid": "384021", "title": "", "text": "corporation, protested an adverse zoning ordinance and sought a variance. Three suppliers also sued the corporation. In none of these suits did the corporation disclaim liability on the grounds that it was not the beneficial owner of the property. In two suits, however, the partnership was mentioned as a contractor. The corporation also obtained fire, bodily injury, and property insurance on the apartment complex in its own name. In 1974 when the partnership and corporation were formed, taxpayer owned 10% of the partnership and Cagle, 90%. On the partnership tax returns for 1976 and 1977, the tax years in question, Cagle is listed as owning 50.5% and 90% of the partnership, respectively, and taxpayer as a 10% owner. During 1976 and 1977 the apartment complex generated deductible losses. The partnership reported these losses as partnership losses and taxpayer reported his allocable share. The commissioner disallowed these deductions on the ground that the losses from the apartment complex were attributable to the corporation and not to the partnership resulting in tax deficiency of $4,671 for 1976 and $9,384 for 1977. Taxpayer paid the deficiencies and filed a claim for a refund. The Claims Court affirmed the decision of the commissioner holding that the corporation was a taxable entity and rejecting taxpayer’s agency argument. This appeal followed. I The only issue before us is whether the losses generated by the construction and operation of the apartment complex are attributable to the partnership, despite legal title lying in the corporation. Taxpayers have advanced two theories why a corporation should not bear the tax attributes of property to which it holds title, both of which have been addressed by the Supreme Court. In Moline Properties, Inc. v. Commissioner, 319 U.S. 436, 63 S.Ct. 1132, 87 L.Ed. 1499 (1943), the Court made clear that a taxpayer cannot establish a corporation for business purposes and then expect that it be ignored for federal tax purposes. In that case an individual created a corporation, transferred property to it and the corporation assumed the mortgage debt. When the corporation eventually sold the property, the sole shareholder argued that" } ]

[ { "docid": "19816263", "title": "", "text": "because of the respondent’s activities in circumventing the immigration laws, and because she had been employed illegally, and had never reported her address as an alien. He also found that the respondent’s conduct at the hearing indicated that she would not in fact leave the United States if granted voluntary departure. He further found that her two United States citizen children were not equities sufficient to overcome the adverse factors. The respondent contends that she has other equities that were not considered by the immigration judge. Among these are the fact that she has no convictions for immigration law violations, that she expressed her intention to depart voluntarily at her own expense, and that she has no history of- welfare, or of criminal activity. The respondent also claims that the immigration judge was prejudiced against her because she had three children born out of wedlock. This last claim we do not consider substantiated, as the inquiry into the respondent’s personal life was apparently motivated by the possibility that she was ineligible for voluntary departure on the grounds of adultery. It would appear, therefore, that all of the relevant factors have been raised by both the respondent and the immigration judge. In balancing the adverse against the favorable, we have concluded that voluntary departure is not warranted. The respondent entered through fraud on several occasions, and her obtention of a fraudulent passport shows a conscious and serious intent to evade the immigration laws. In addition, her testimony at the hearing was evasive and reflected poorly on her veracity. Given these strongly adverse factors, it was proper to require the respondent to present equities of a substantial nature. We do not find the fact that she has two citizen children to be such a equity. The appeal will accordingly be dismissed. We approve the decision of the Board on this issue. We conclude that the judge exercised discretion in a manner that was neither arbitrary nor capricious, and that his decision and that of the Board were supported by substantial evidence. After a careful review of the record, the briefs and argument" } ]

[ { "docid": "23378815", "title": "", "text": "if there is a distinction to be drawn between the two situations, it points to exactly the opposite conclusion. As the Supreme Court has repeatedly observed, “[t]he fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ ” Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965)). The due process clause requires the opportunity for a hearing when government wishes to deprive us of our rights; it does not require the opportunity for an appeal. Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 3312, 77 L.Ed.2d 987 (1983); Ortwein, 410 U.S. at 660, 93 S.Ct. at 1174. I do not understand how the regulations can impermissibly burden appeals when the identical burden on the right to any hearing at all is perfectly acceptable. See Wiren v. Eide, 542 F.2d 757, 763-64 (9th Cir.1976) (bond requirement that prevents indigents from obtaining any hearing at all violates due process, unlike filing fee requirements that prevent judicial appellate review of administrative hearings). The majority stands due process on its head. 3. The majority also appears to hold that the right to take an appeal in an immigration case is a fundamental right, like marriage or procreation, and therefore conditioning voluntary departure on its waiver is unconstitutional. Majority Op. at 1095; see also id. at 1094-1095 (citing Israel v. INS, 785 F.2d 738 (9th Cir.1986)). In Israel we noted that conditioning a grant of voluntary departure on an alien’s promise not to marry a United States citizen amounted to “unjustified government interference in a personal decision relating to marriage,” because the right to marry is a fundamental constitutional right. Id. at 742 n. 8 (citing Zablocki v. Redhail, 434 U.S. 374, 384, 98 S.Ct. 673, 680, 54 L.Ed.2d 618 (1978)). The majority apparently believes that the right of appeal is entitled to the same solicitude. It is difficult to overstate the significance of this aspect of the majority’s opinion. Heretofore," }, { "docid": "22323124", "title": "", "text": "instituted this appeal and raises only the issue of whether the immigration judge violated his due process rights guaranteed by the fifth and fourteenth amendments. Discussion By failing to brief the voluntary departure and suspension of deportation issues, Calderon-Ontiveros has waived our consideration of them. We do not examine issues not raised on appeal “absent the possibility of injustice so grave as to warrant disregard of usual procedural rules.” McGee v. Estelle, 722 F.2d 1206, 1213 (5th Cir.1984) (en banc) (footnote omitted); see Olgin v. Darnell, 664 F.2d 107, 108 (5th Cir.1981). After studying the record, it is plain to us that we will create no such possibility by applying the usual rule here. We must, however, consider whether the immigration judge violated the due process rights of Calderon-Ontiveros. In the administrative law context, as elsewhere, procedural due process is violated only if the government’s actions substantially prejudice the complaining party. Ka Fung Chan v. INS, 634 F.2d 248, 258 (5th Cir.1981); see Keough v. Tate County Board of Education, 748 F.2d 1077, 1083 (5th Cir.1984). Calderon-Ontiveros apparently believes that the immigration judge’s vigorous questioning substantially prejudiced his case. We disagree and hold that the judge’s questions did not deny CalderonOntiveros a fair and meaningful hearing. Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976) (stating that “[t]he fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner’ ”) (quoting Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965)); see also Harper v. Lindsay, 616 F.2d 849, 858 (5th Cir.1980) (noting that the “fundamentals of due process” are notice, hearing, and appeal). The judge’s questions do not appear to have been designed to trick Calderon-Ontiveros and he does not suggest that the judge’s participation resulted in an incorrect resolution of his case. Based on his own admissions, Calderon-Ontiveros was not entitled to suspension of deportation, and his history of past illegal entries is ample support for a discretionary denial of voluntary departure. See Carnejo-Molina v. INS, 649 F.2d 1145, 1151" }, { "docid": "1346256", "title": "", "text": "establishing uncontested facts. In Bustos-Torres, this court affirmed the BIA’s deportation order when the only evidence offered at the deportation hearing was a recorded recollection of an INS official’s interview of Bustos-Torres on an INS form which stated that Bustos-Torres is a citizen of Mexico who entered the United States without inspection. 898 F.2d at 1055-56. This court reasoned that where “Bustos does not contest that the [recorded recollection] reflects the [INS] officer’s examination, nor did he attempt to impeach the information on the form,\" and he pleaded the Fifth Amendment rather than answer the IJ’s questions concerning the information on the form, the hearsay nature of the form is irrelevant to its admissibility in deportation proceedings. Id. at 1056. The court refused to permit Bustos-Torres to assert a cross-examination right when the record contained no indication that this right would have been of any use. Id.; see also Calderon-Ontiveros v. I.N.S., 809 F.2d 1050, 1053 (5th Cir.1986) (IJ fundamentally fair in admitting hearsay report that is cumulative of Calderon-Ontiveros’ testimony when Calderon-Ontiveros produced no evidence to refute anything in report). Through his own testimony and his documentary evidence, Olabanji contested both the findings in INS’ forensic document analysis and the assertions in the Raines affidavit, so Bustos-Torres et al. does not undermine his cross-examination right. . Of course, in this case as in Baliza, the fact that, absent severe coercion, a man’s wife would execute an affidavit that could well cause him to be deported indicates serious problems in their relationship. But the law does not condition permanent resident status on a harmonious marriage to a United States citizen. The marriage simply must 1) accord with the law of the state where it took place, 2) continue in legal force through the time that the immigrant spouse asks for removal of the conditions from the immigrant spouse’s permanent resident status, and 3) not have been entered into for the purpose of immigration. 8 U.S.C.A. § 1186a(d)(l)(A) (West Supp.1992). Nothing in the record suggests that Olabanji’s marriage is illegal, null, or terminated. INS only contends that Raines did not sign" }, { "docid": "23238155", "title": "", "text": "indication that Bustos had executed a Form 1-214, Warning as to Rights, or that he was told that he did not have to speak with the arresting officer. No further evidence was presented, and the judge found Bustos deportable. Bustos appealed to the Board of Immigration Appeals, which affirmed the immigration judge’s finding of deportability. Bustos appeals to this court. II In determining whether Bustos’s deportation was proper, we must answer three questions. First, is a Form 1-213 admissible evidence in a deportation proceeding without the testimony of the officer who completed the form to authenticate it and to explain the source of the information? Second, is a Form 1-213 admissible in a deportation proceeding when there is no evidence that the alien was informed of any right to remain silent? Third, if the form is admissible, is it by itself sufficient to make a prima facie showing of deportability, requiring the alien to produce evidence of legal presence in this country? A. Admissibility Without Supporting Testimony Bustos alleges that the Form I-213 amounts to hearsay, and is not properly admissible without the testimony of the officer who filled out the form, so that he may be available for cross examination. First we note that the rules of evidence applicable in the courts are not applicable in deportation proceedings. Soto-Hernandez v. INS, 726 F.2d 1070 (5th Cir.1984). Nonetheless, due process standards of fundamental fairness extend to the conduct of deportation proceedings. Bridges v. Wixon, 326 U.S. 135, 65 S.Ct. 1443, 89 L.Ed. 2103 (1945). The test for admissibility of evidence in a deportation proceeding is whether the evidence is probative and whether its use is fundamentally fair so as not to deprive the alien of due process of law. See, e.g., Calderon-Ontiveros v. INS, 809 F.2d 1050 (5th Cir.1986); Baliza v. INS, 709 F.2d 1231 (9th Cir.1983); Tashnizi v. INS, 585 F.2d 781 (5th Cir.1978); Trias-Hernandez v. INS, 528 F.2d 366 (9th Cir.1975). In Trias-Hemandez, the Ninth Circuit considered the admissibility of a Form 1-213, and determined that it was properly admitted, despite the alien’s objections on the grounds that:" }, { "docid": "22323126", "title": "", "text": "(5th Cir.1981) (stating that appellate review of a denial of voluntary departure is limited to whether the Attorney General exercised his discretion arbitrarily or capriciously); R. Steel, Steel on Immigration Law § 14:48 at 454 (1983) (stating that one factor in deciding whether to grant voluntary departure is the “nature and extent of immigration violations”). The judge gave counsel the opportunity to present evidence in support of CalderonOntiveros, but counsel deliberately bypassed this opportunity. There is no record evidence supporting Calderon-Ontiveros. We hold that the deficiencies in his case, rather than the immigration judge’s conduct, wholly explain the outcome below. See Keough, 748 F.2d at 1083. Calderon-Ontiveros would have us remand his case, presumably for the sole purpose of conducting the hearing differently but not, he must concede, for the purpose of altering the ultimate outcome. He has cited no cases, and we have found none, to support this notion. Clearly, claimed deficiencies in the hearing, singly and collectively, do not even arguably approach a level of seriousness or unfairness such that it could reasonably be characterized as no hearing at all. Further, there is also nothing to suggest that the immigration judge was constitutionally disqualified by interest or bias. Calderon-Ontiveros also complains that the judge erred in admitting the INS apprehension report, which was hearsay. The relevant ease law is to the contrary. See Tejeda-Mata v. INS, 626 F.2d 721, 724 (9th Cir.1980) (upholding the admission, over a hearsay objection, of an INS apprehension report such as was admitted in Calderon-Ontiveros’ case), cert. denied, 456 U.S. 994, 102 S.Ct. 2280, 73 L.Ed.2d 1291 (1982). The Administrative Procedure Act, which governs such hearings, excludes only “irrelevant, immaterial, or unduly repetitious evidence.” 5 U.S.C. § 556(d). It is well established that hearsay is admissible in administrative proceedings. E.g., School Board v. HEW, 525 F.2d 900, 905 (5th Cir.1976); Hoska v. United States Department of the Army, 677 F.2d 131, 138 (D.C.Cir.1982) (stating that “[pjrovided it is rele vant and material, hearsay is admissible in administrative proceedings generally”). Moreover, the hearsay was merely cumulative of Calderon-Ontiveros’ on-the-record admission that he had been" }, { "docid": "22323122", "title": "", "text": "identify past instances when he had illegally entered the United States. If such an entry fell within the preceding seven years, Calderon-Ontiveros necessarily would have established an absence from the country and thus his ineligibility for suspension of deportation. The government offered as evidence the INS report describing CalderonOntiveros’ July 30,1984 apprehension as he entered the United States near El Paso. Before admitting this document, the judge questioned Calderon-Ontiveros about it and asked him to underline the portions with which he disagreed. This questioning occurred off the record; the judge denied the request of Calderon-Ontiveros’ attorney to read the report prior to his questions. The attorney did, however, confer with Calderon-Ontiveros while the judge read and explained the apprehension report. After questioning Calderon-Ontiveros, the judge admitted the report into evidence. When the proceedings went back on the record, Calderon-Ontiveros admitted that he had been outside the United States in July 1984. The immigration judge’s manner of conducting the hearing — his questioning of Calderon-Ontiveros with regard to the apprehension report before allowing counsel to read it, his admission of the report into evidence, posing some questions off the record, and his on-the-record colloquy with Calderon-Ontiveros concerning the latter’s past illegal entries into this country — so aggravated Calderon-Ontiveros’ attorney that when his turn came to present evidence he refused to do so, and asked instead that the judge terminate the hearing on grounds that his client’s due process rights had been violated. The judge refused to stop the hearing and then denied suspension of deportation and voluntary departure. The judge held that CalderonOntiveros was not entitled to the former relief because he had not been continuously present in the United States during the preceding seven years. The judge denied voluntary departure because of CalderonOntiveros’ past history of illegal entries. In his appeal to the BIA, Calderon-Ontiveros complained that the actions of the immigration judge interfered with his constitutional right to counsel. He also asserted that the judge abused his discretion in denying suspension of deportation and voluntary departure. In a brief order, the BIA affirmed the immigration judge. Calderon-Ontiveros timely" }, { "docid": "22323120", "title": "", "text": "GARWOOD, Circuit Judge: This is a deportation case. Amalio Calderon-Ontiveros (Calderon-Ontiveros), who conceded deportability at his deportation hearing, appeals from the Board of Immigration Appeals’ (BIA) affirmance of an immigration judge’s decision denying him both suspension of deportation and voluntary departure. The BIA also held that Calderon-Ontiveros’ due process rights were not violated in the deportation hearing. Calderon-Ontiveros raises only this latter issue on appeal, and we affirm the BIA. Facts and Proceedings Below At his deportation hearing, Calderon-Ontiveros, a Mexican citizen, admitted illegally entering the United States in 1970, 1976, 1978, and 1984. In 1978, he was accompanied by the woman with whom he had been living in Mexico and their child. The pair were soon married in Chicago, Illinois and have since had three more children, all United States citizens. In July 1984, officers with the Immigration and Naturalization Service (INS) apprehended CalderonOntiveros in Las Cruces, New Mexico and he was sent back to Mexico. Later that month, he crossed the border back into this country, but was apprehended while doing so by INS officials. The present proceedings commenced with a deportation hearing held on September 24, 1984. Calderon-Ontiveros, who was represented by counsel at the hearing, conceded deportability. He gave notice that he would seek voluntary departure. See 8 U.S.C. § 1254 (providing for voluntary departure which “offers significant advantages over deportation.” Parcham v. INS, 769 F.2d 1001, 1002 n. 1 (4th Cir.1985)). Calderon-Ontiveros also gave notice that he would seek suspension of deportation, see 8 U.S.C. § 1254(a)(1), although he apparently had not filed a formal application for this relief. The immigration judge recognized that a threshold requirement for suspension of deportation is that the applicant have been “physically present in the United States for a continuous period of not less than seven years immediately preceding the date of such application.” Id. He was also familiar with the Supreme Court’s holding that this continuous physical presence requirement is to be applied literally. INS v. Phinpathya, 464 U.S. 183, 104 S.Ct. 584, 592-93, 78 L.Ed.2d 401 (1984). Accordingly, he asked Calderon-Ontiveros a series of questions designed to" }, { "docid": "22323128", "title": "", "text": "outside the United States during a period in 1984. Finally, the government asks us to sanction Calderon-Ontiveros for filing a frivolous appeal. Calderon-Ontiveros has filed no reply to the government’s brief requesting such relief. The substantive argument in his appellate brief occupies just one page and cites not a single supporting case. The constitutional claim is utterly without merit. The brief fails to raise the two substantive issues central to his case below. Thus, we can infer only that Calderon-Ontiveros filed this appeal solely to delay his ultimate deportation. Appeals filed for delay are frivolous, Dallo v. INS, 765 F.2d 581, 589 (6th Cir.1985), and pursuant to Fed.R.App.P. 38, we award double costs to the government in this case. Rather than place the full burden of this sanction on Calderon-Ontiveros, we hold his counsel personally responsible for one half of this award. See 28 U.S.C. § 1927; Dallo, 765 F.2d at 589-90. Conclusion We affirm the BIA order holding that Calderon-Ontiveros’ due process rights were not violated during his deportation hearing. Furthermore, we award double costs to the government, to be borne equally by Calderon-Ontiveros and his attorney. AFFIRMED. . 8 U.S.C. § 1252(b) permits the judge to “interrogate, examine, and cross-examine the alien.\" The judge did not exceed his statutory authorization. . It is not clear why the immigration judge’s questions with regard to the apprehension report could not have been on the record. The Immigration and Nationality Act requires a record of the deportation hearing. 8 U.S.C. § 1252(b). However, the judge’s questions were in connection with the government's offer of the apprehension report into evidence, and in these circumstances the relevant regulations permitted the judge, in the exercise of his discretion, to hold the questioning off the record. 8 C.F.R. § 242.15. In the absence of any showing of prejudice, we will not disturb the immigration judge’s exercise of discretion. Avila-Murrieta v. INS, 762 F.2d 733, 736 (9th Cir.1985)." }, { "docid": "3023344", "title": "", "text": "ability to present his case against deportation, thereby denying him due process and a fair hearing. Kandiel claims that he did not answer questions during his hearing in order not to incriminate himself. The government violates procedural due process “only if [its] actions substantially prejudice the complaining party.” Calderon-Ontiveros v. Immigration & Naturalization Service, 809 F.2d 1050, 1052 (5th Cir.1986) (citing Ka Fung Chan v. Immigration & Naturalization Service, 634 F.2d 248, 258 (5th Cir. Jan. 1981). No such substantial prejudice occurred here. The immigration judge deemed Kandiel’s refusal to plead to the allegations of the OSC as denials, not admissions. From Kandiel’s silence, he could lawfully have drawn adverse inferences. Immigration & Naturalization Service v. Lopez-Mendoza, 468 U.S. 1032, 1043-44, 104 S.Ct. 3479, 3485-86, 82 L.Ed.2d 778, 789 (1984). The INS showed, as required, identity and alienage by introducing the record of Kandiel’s criminal convictions; the burden then shifted to Kandiel to prove time, place and manner of entry. Lopez-Mendoza, 468 U.S. at 1039, 104 S.Ct. at 3483, 82 L.Ed.2d at 786; see 8 U.S.C. § 1361. Kandiel cannot use his decision not to avail of that opportunity as a palladium against an otherwise valid deportation order. Even had the indictment not been brought and had Kandiel testified, the outcome would not have differed. His record of convictions indicates that the indictment did not prejudice him. It established his alienage and his unlawful presence in the United States. He cannot in deportation proceedings collaterally attack those facts which his convictions established. IV CONCLUSION Kandiel’s convictions operate as collateral estoppel against his raising the issue of his alienage in deportation proceedings. His contentions that the immigration judge abused his discretion in denying him a continuance and that his indictment deprived him of the opportunity for a fair hearing are both meritless. Consequently the BIA’s order is AFFIRMED. . In all but the first of these charges, \"illegally and unlawfully” in the United States is also an essential element. . Kandiel offers the death certificate of a Mohamed Nagy Ibrahim Ali Kandiel (which the immigration judge admitted); a letter dated August" }, { "docid": "23612595", "title": "", "text": "motion to reopen before the BIA is simply not a substitute.” 990 F.2d at 1124 (Fletcher, J., concurring) (citations omitted); see also Gebremichael, 10 F.3d at 39 (“The motion to reopen process was clearly not designed as an opportunity to respond to officially noticed facts.”). In cases such as this one, where the BIA reverses the immigration judge’s findings, the reopening procedure does not substitute for advance notice and an opportunity to rebut administratively noticed facts before the ruling is issued. See Ulloa, 1991 WL 181745 at *1-*2. The plain language of the regulations makes them inapplicable to motions to reopen based on information that was available and could have been presented at the time of the hearing. More to. the point, petitioners are entitled to full review of the record on direct appeal; reopening is a matter in the BIA’s discretion. Finally, a petitioner is not guaranteed a stay of deportation while awaiting a decision on reopening. 8 C.F.R. § 3.8(a). A petitioner’s due process rights are not protected by a procedure that depends entirely on the good faith of the BIA. See Gebremichael, 10 F.3d at 40-41; Ulloa, 1991 WL 181745 at *2 (motion to reopen “imposes the unreasonable risk that a petitioner may be deported before the Board considers the rebuttal evidence contained in his motion to reopen”); see, e.g. Castaneda-Suarez v. INS, 993 F.2d 142, 145 & n. 5 (7th Cir.1993) (INS declined to assure appellate court that petitioner would not be deported before consideration of his good-faith motion to reopen). Consequently, we hold that the BIA denied the Petitioners due process by overturning the immigration judge’s finding that Petitioners had a well-founded fear of persecution based solely on the administratively noticed facts, by failing to give their case individualized consideration and, more importantly, by not providing them with “the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ ” Mathews v. Eldridge, 424 U.S. at 333, 96 S.Ct. at 902 (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965)). For these reasons, we reverse" }, { "docid": "3023343", "title": "", "text": "evidence was admitted, the immigration judge did, in fact, grant Kandiel a continuance until November 21, 1989. Because Kandiel was ill on the 21st, the immigration judge granted a further continuance of the hearing until November 29, 1989. As Kan-diel did not seek a continuance on that date, the hearing finally concluded. Kandiel received the continuance he sought on November 3rd. The record does not indicate that after November 21st Kan-diel sought and was denied continuances. Further, contrary to Kandiel’s assertion, the immigration judge did admit into evidence the death certificate for the arrival of which Kandiel had sought a continuance. Finally, Kandiel cannot use the letter from the Egyptian Consulate in deportation proceedings to attack collaterally his conviction. Consequently, Kandiel’s contention that the immigration judge abused his discretion is meritless. Indictment during Deportation Proceedings Finally, Kandiel argues that he was denied due process because he was indicted under section 911 of Title 18 of the United States Code during the period when his deportation proceedings were being conducted. The indictment, he claims, hampered his ability to present his case against deportation, thereby denying him due process and a fair hearing. Kandiel claims that he did not answer questions during his hearing in order not to incriminate himself. The government violates procedural due process “only if [its] actions substantially prejudice the complaining party.” Calderon-Ontiveros v. Immigration & Naturalization Service, 809 F.2d 1050, 1052 (5th Cir.1986) (citing Ka Fung Chan v. Immigration & Naturalization Service, 634 F.2d 248, 258 (5th Cir. Jan. 1981). No such substantial prejudice occurred here. The immigration judge deemed Kandiel’s refusal to plead to the allegations of the OSC as denials, not admissions. From Kandiel’s silence, he could lawfully have drawn adverse inferences. Immigration & Naturalization Service v. Lopez-Mendoza, 468 U.S. 1032, 1043-44, 104 S.Ct. 3479, 3485-86, 82 L.Ed.2d 778, 789 (1984). The INS showed, as required, identity and alienage by introducing the record of Kandiel’s criminal convictions; the burden then shifted to Kandiel to prove time, place and manner of entry. Lopez-Mendoza, 468 U.S. at 1039, 104 S.Ct. at 3483, 82 L.Ed.2d at 786; see 8" }, { "docid": "22323125", "title": "", "text": "Cir.1984). Calderon-Ontiveros apparently believes that the immigration judge’s vigorous questioning substantially prejudiced his case. We disagree and hold that the judge’s questions did not deny CalderonOntiveros a fair and meaningful hearing. Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976) (stating that “[t]he fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner’ ”) (quoting Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965)); see also Harper v. Lindsay, 616 F.2d 849, 858 (5th Cir.1980) (noting that the “fundamentals of due process” are notice, hearing, and appeal). The judge’s questions do not appear to have been designed to trick Calderon-Ontiveros and he does not suggest that the judge’s participation resulted in an incorrect resolution of his case. Based on his own admissions, Calderon-Ontiveros was not entitled to suspension of deportation, and his history of past illegal entries is ample support for a discretionary denial of voluntary departure. See Carnejo-Molina v. INS, 649 F.2d 1145, 1151 (5th Cir.1981) (stating that appellate review of a denial of voluntary departure is limited to whether the Attorney General exercised his discretion arbitrarily or capriciously); R. Steel, Steel on Immigration Law § 14:48 at 454 (1983) (stating that one factor in deciding whether to grant voluntary departure is the “nature and extent of immigration violations”). The judge gave counsel the opportunity to present evidence in support of CalderonOntiveros, but counsel deliberately bypassed this opportunity. There is no record evidence supporting Calderon-Ontiveros. We hold that the deficiencies in his case, rather than the immigration judge’s conduct, wholly explain the outcome below. See Keough, 748 F.2d at 1083. Calderon-Ontiveros would have us remand his case, presumably for the sole purpose of conducting the hearing differently but not, he must concede, for the purpose of altering the ultimate outcome. He has cited no cases, and we have found none, to support this notion. Clearly, claimed deficiencies in the hearing, singly and collectively, do not even arguably approach a level of seriousness or unfairness such that it could reasonably" }, { "docid": "22323123", "title": "", "text": "it, his admission of the report into evidence, posing some questions off the record, and his on-the-record colloquy with Calderon-Ontiveros concerning the latter’s past illegal entries into this country — so aggravated Calderon-Ontiveros’ attorney that when his turn came to present evidence he refused to do so, and asked instead that the judge terminate the hearing on grounds that his client’s due process rights had been violated. The judge refused to stop the hearing and then denied suspension of deportation and voluntary departure. The judge held that CalderonOntiveros was not entitled to the former relief because he had not been continuously present in the United States during the preceding seven years. The judge denied voluntary departure because of CalderonOntiveros’ past history of illegal entries. In his appeal to the BIA, Calderon-Ontiveros complained that the actions of the immigration judge interfered with his constitutional right to counsel. He also asserted that the judge abused his discretion in denying suspension of deportation and voluntary departure. In a brief order, the BIA affirmed the immigration judge. Calderon-Ontiveros timely instituted this appeal and raises only the issue of whether the immigration judge violated his due process rights guaranteed by the fifth and fourteenth amendments. Discussion By failing to brief the voluntary departure and suspension of deportation issues, Calderon-Ontiveros has waived our consideration of them. We do not examine issues not raised on appeal “absent the possibility of injustice so grave as to warrant disregard of usual procedural rules.” McGee v. Estelle, 722 F.2d 1206, 1213 (5th Cir.1984) (en banc) (footnote omitted); see Olgin v. Darnell, 664 F.2d 107, 108 (5th Cir.1981). After studying the record, it is plain to us that we will create no such possibility by applying the usual rule here. We must, however, consider whether the immigration judge violated the due process rights of Calderon-Ontiveros. In the administrative law context, as elsewhere, procedural due process is violated only if the government’s actions substantially prejudice the complaining party. Ka Fung Chan v. INS, 634 F.2d 248, 258 (5th Cir.1981); see Keough v. Tate County Board of Education, 748 F.2d 1077, 1083 (5th" }, { "docid": "8155959", "title": "", "text": "not transform the hearing into one of a criminal nature. Additional, factors point to the civil nature of the proceedings at issue. The plaintiffs, rather than the court, instigated the proceedings. Latrobe Steel Co. v. United Steelworkers, Etc., 545 F.2d 1336, 1343-44 (3d Cir.1976) (Civil contempt proceedings are instituted primarily on the motion of the plaintiff and are part of the underlying action.) Also, the principal beneficiary of the defendant’s compliance was the plaintiffs and not the court or the Government. Id. at 1344. Thus, the defendant McMonagle is entitled to due process required for a civil proceeding. Hicks v. Feiock, 485 U.S. at 638, 108 S.Ct. at 1433. Due process generally requires an opportunity granted at a meaningful time and in a meaningful manner for a hearing appropriate to the nature of the case. Due process does not, of course, require that the defendant in every civil case actually have a hearing on the merits. A State, can, for example, enter a default judgment against a defendant who, after adequate notice, fails to make a timely appearance, or who, without justifiable excuse, violates a procedural rule requiring the production of evidence necessary for orderly adjudication. What the Constitution does require is “an opportunity ... granted at a meaningful time and in a meaningful manner....” Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965) (emphasis added). Boddie v. Connecticut, 401 U.S. 371, 378, 91 S.Ct. 780, 786, 28 L.Ed.2d 113 (1970) (citations omitted). Defendant does not contend that the court failed to give him adequate notice of the hearing but rather that he was denied an opportunity to be present at the contempt hearing in violation of his due process rights. Whether the defendant waived his right to be present at the hearing is a mixed question of law and fact. Because the facts are undisputed, our review of whether McMonagle’s actions constituted waiver is plenary. Ram Construction Co. v. American States Insurance Co., 749 F.2d 1049, 1053 (3rd Cir.1984). Due process is waived when there is an intentional relinquishment of a known right." }, { "docid": "22323121", "title": "", "text": "INS officials. The present proceedings commenced with a deportation hearing held on September 24, 1984. Calderon-Ontiveros, who was represented by counsel at the hearing, conceded deportability. He gave notice that he would seek voluntary departure. See 8 U.S.C. § 1254 (providing for voluntary departure which “offers significant advantages over deportation.” Parcham v. INS, 769 F.2d 1001, 1002 n. 1 (4th Cir.1985)). Calderon-Ontiveros also gave notice that he would seek suspension of deportation, see 8 U.S.C. § 1254(a)(1), although he apparently had not filed a formal application for this relief. The immigration judge recognized that a threshold requirement for suspension of deportation is that the applicant have been “physically present in the United States for a continuous period of not less than seven years immediately preceding the date of such application.” Id. He was also familiar with the Supreme Court’s holding that this continuous physical presence requirement is to be applied literally. INS v. Phinpathya, 464 U.S. 183, 104 S.Ct. 584, 592-93, 78 L.Ed.2d 401 (1984). Accordingly, he asked Calderon-Ontiveros a series of questions designed to identify past instances when he had illegally entered the United States. If such an entry fell within the preceding seven years, Calderon-Ontiveros necessarily would have established an absence from the country and thus his ineligibility for suspension of deportation. The government offered as evidence the INS report describing CalderonOntiveros’ July 30,1984 apprehension as he entered the United States near El Paso. Before admitting this document, the judge questioned Calderon-Ontiveros about it and asked him to underline the portions with which he disagreed. This questioning occurred off the record; the judge denied the request of Calderon-Ontiveros’ attorney to read the report prior to his questions. The attorney did, however, confer with Calderon-Ontiveros while the judge read and explained the apprehension report. After questioning Calderon-Ontiveros, the judge admitted the report into evidence. When the proceedings went back on the record, Calderon-Ontiveros admitted that he had been outside the United States in July 1984. The immigration judge’s manner of conducting the hearing — his questioning of Calderon-Ontiveros with regard to the apprehension report before allowing counsel to read" }, { "docid": "23238156", "title": "", "text": "hearsay, and is not properly admissible without the testimony of the officer who filled out the form, so that he may be available for cross examination. First we note that the rules of evidence applicable in the courts are not applicable in deportation proceedings. Soto-Hernandez v. INS, 726 F.2d 1070 (5th Cir.1984). Nonetheless, due process standards of fundamental fairness extend to the conduct of deportation proceedings. Bridges v. Wixon, 326 U.S. 135, 65 S.Ct. 1443, 89 L.Ed. 2103 (1945). The test for admissibility of evidence in a deportation proceeding is whether the evidence is probative and whether its use is fundamentally fair so as not to deprive the alien of due process of law. See, e.g., Calderon-Ontiveros v. INS, 809 F.2d 1050 (5th Cir.1986); Baliza v. INS, 709 F.2d 1231 (9th Cir.1983); Tashnizi v. INS, 585 F.2d 781 (5th Cir.1978); Trias-Hernandez v. INS, 528 F.2d 366 (9th Cir.1975). In Trias-Hemandez, the Ninth Circuit considered the admissibility of a Form 1-213, and determined that it was properly admitted, despite the alien’s objections on the grounds that: “(1) he was not advised of his rights as required by Miranda”] “(2) the INS did not comply with its own regulation, 8 C.F.R. § 287.3”; “(3) it was inadmissible hearsay; and (4) no interpreter was present at the interrogation.” 528 F.2d at 368. Bustos makes similar claims but none require reversal. Several courts have held that Form 1-213 is admissible, despite its hearsay character. Hearsay is admissible in administrative proceedings, so long as the admission of evidence meets the tests of fundamental fairness and probity. Calderon-Ontiveros, 809 F.2d at 1053; Trias-Hernandez, 528 F.2d at 369; Martin-Mendoza v. INS, 499 F.2d 918, 921 (9th Cir.1974). The Form 1-213 is essentially a recorded recollection of a conversation with the alien, and there is no evidence that the statements were not those of the petitioner or that they were the result of coercion. The affidavit of the examining officer shows that the information in the Form 1-213 is based upon statements of the petitioner, and the petitioner does not contest their validity. In Tejeda-Mata v. INS, 626" }, { "docid": "23612580", "title": "", "text": "denial of due process. The INS responds that the BIA’s ability to take administrative notice is well supported in case law, and that it is undisputed that control of the Nicaraguan government now is in the hands of a coalition government comprised of parties opposed to the Sandinistas. In addition, the INS argues that notice and an opportunity to be heard are not required before the BIA may take administrative notice of facts- bearing on a case and that, regardless, any failure to notify Petitioners of the taking of administrative notice was ameliorated by Petitioners’ ability to move for reopening under BIA regulations. We begin by noting that, while there is no constitutional right to political asylum itself, noncitizens, even those charged with entering the country illegally, are entitled to due process when threatened with deportation. See Landon v. Plasencia, 459 U.S. 21, 32, 103 S.Ct. 321, 329, 74 L.Ed.2d 21 (1982); The Japanese Immigrant Case, 189 U.S. 86, 101, 23 S.Ct. 611, 47 L.Ed. 721 (1903); Bauge v. INS, 7 F.3d 1540, 1543 (10th Cir.1993); Gutierrez-Rogue v. INS, 954 F.2d 769, 773 (D.C.Cir.1992). “The fundamental requirement of due process is the opportunity to be heard at ‘a meaningful time and in a meaningful manner.’ ” Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965)). In the adjudicative context, due process entitles a person to factfinding based on a record produced before the decisionmaker and disclosed to that person, see Goldberg v. Kelly, 397 U.S. 254, 271, 90 S.Ct. 1011, 1022, 25 L.Ed.2d 287 (1970), and an individualized determination of his interests, see Rhoa-Zamora v. INS, 971 F.2d 26, 34 (7th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1943, 123 L.Ed.2d 649 (1993). Finally, it .requires that the decision-maker actually consider the evidence and argument that a party presents. See Morgan v. United States, 298 U.S. 468, 481, 56 S.Ct. 906, 911, 80 L.Ed. 1288 (1936). On the facts of this case, we conclude that the BIA’s" }, { "docid": "1346255", "title": "", "text": "case [is that] the government must make a reasonable effort in INS proceedings to afford the alien a reasonable opportunity to confront the witnesses against him or her”) (emphasis added). INS alone decides what evidence it will present to establish deportability, and in doing so it alone must account for its ability to accommodate the cross-examination rights of those whom it seeks to deport. Otherwise, INS’ opponents, who, like Olabanji, often appear pro se without language skills or experience in American conflict resolution, would be forced to appear prepared to meet any possible evidence that INS decides to present. This requirement is not an unreasonable obstacle when considered in light of the simple means courts have allowed INS to satisfy its burden. III. CONCLUSION We GRANT Olabanji’s petition for review, VACATE the BIA’s decision and order, and REMAND this case to the BIA for further proceedings consistent with this opinion. . We recognize one other exception to the cross-examination right in section 1252(b)(3): people may not assert a cross-examination right to prevent the government from establishing uncontested facts. In Bustos-Torres, this court affirmed the BIA’s deportation order when the only evidence offered at the deportation hearing was a recorded recollection of an INS official’s interview of Bustos-Torres on an INS form which stated that Bustos-Torres is a citizen of Mexico who entered the United States without inspection. 898 F.2d at 1055-56. This court reasoned that where “Bustos does not contest that the [recorded recollection] reflects the [INS] officer’s examination, nor did he attempt to impeach the information on the form,\" and he pleaded the Fifth Amendment rather than answer the IJ’s questions concerning the information on the form, the hearsay nature of the form is irrelevant to its admissibility in deportation proceedings. Id. at 1056. The court refused to permit Bustos-Torres to assert a cross-examination right when the record contained no indication that this right would have been of any use. Id.; see also Calderon-Ontiveros v. I.N.S., 809 F.2d 1050, 1053 (5th Cir.1986) (IJ fundamentally fair in admitting hearsay report that is cumulative of Calderon-Ontiveros’ testimony when Calderon-Ontiveros produced no" }, { "docid": "22323127", "title": "", "text": "be characterized as no hearing at all. Further, there is also nothing to suggest that the immigration judge was constitutionally disqualified by interest or bias. Calderon-Ontiveros also complains that the judge erred in admitting the INS apprehension report, which was hearsay. The relevant ease law is to the contrary. See Tejeda-Mata v. INS, 626 F.2d 721, 724 (9th Cir.1980) (upholding the admission, over a hearsay objection, of an INS apprehension report such as was admitted in Calderon-Ontiveros’ case), cert. denied, 456 U.S. 994, 102 S.Ct. 2280, 73 L.Ed.2d 1291 (1982). The Administrative Procedure Act, which governs such hearings, excludes only “irrelevant, immaterial, or unduly repetitious evidence.” 5 U.S.C. § 556(d). It is well established that hearsay is admissible in administrative proceedings. E.g., School Board v. HEW, 525 F.2d 900, 905 (5th Cir.1976); Hoska v. United States Department of the Army, 677 F.2d 131, 138 (D.C.Cir.1982) (stating that “[pjrovided it is rele vant and material, hearsay is admissible in administrative proceedings generally”). Moreover, the hearsay was merely cumulative of Calderon-Ontiveros’ on-the-record admission that he had been outside the United States during a period in 1984. Finally, the government asks us to sanction Calderon-Ontiveros for filing a frivolous appeal. Calderon-Ontiveros has filed no reply to the government’s brief requesting such relief. The substantive argument in his appellate brief occupies just one page and cites not a single supporting case. The constitutional claim is utterly without merit. The brief fails to raise the two substantive issues central to his case below. Thus, we can infer only that Calderon-Ontiveros filed this appeal solely to delay his ultimate deportation. Appeals filed for delay are frivolous, Dallo v. INS, 765 F.2d 581, 589 (6th Cir.1985), and pursuant to Fed.R.App.P. 38, we award double costs to the government in this case. Rather than place the full burden of this sanction on Calderon-Ontiveros, we hold his counsel personally responsible for one half of this award. See 28 U.S.C. § 1927; Dallo, 765 F.2d at 589-90. Conclusion We affirm the BIA order holding that Calderon-Ontiveros’ due process rights were not violated during his deportation hearing. Furthermore, we award double" }, { "docid": "12389596", "title": "", "text": "and that there is no entitlement to the oath on the part of the debtor, he shall be remanded for imprisonment under the existing commitment. The requirement of Section 3554 that the hearing before the district judge must be held “not later than the next regular session” of the court means that, under normal circumstances, the debtor will be brought before a court for a hearing within two to ten days of his incarceration, depending upon the county in which and the day on which he was arrested. II The constitutional issue presented is a narrow one. It is whether the failure of Section 3505 to afford the debtor an opportunity to be heard, before he is incarcerated, as to why he failed to obey the disclosure commissioner's subpoena, deprives the debtor of due process of law. Where the infringement upon a person’s liberty is so apparent, no extended discussion is necessary to demonstrate that by denying the debtor any opportunity to explain his absence at the disclosure hearing, Section 3505 violates the most basic requirement of due process. “The fundamental requisite of due process of law is the opportunity to be heard.” Grannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 783, 58 L.Ed. 1363 (1914); Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965). See also Link v. Wabash Railroad Co., 370 U.S. 626, 632, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962); Anderson National Bank v. Luckett, 321 U.S. 233, 246, 64 S.Ct. 599, 88 L.Ed. 692 (1944). Such hearing must be “at a meaningful time and in a meaningful manner.” Armstrong v. Manzo, supra, 380 U.S. at 552, 85 S.Ct. at 1191. “Many controversies have raged about the cryptic and abstract words of the Due Process Clause but there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 656-657, 94 L.Ed." } ]

[ { "docid": "7214513", "title": "", "text": "residence of the defendant, to a place which may be more convenient to the litigants, or to the witnesses who are to testify in the case. Before application of the general venue statute, however, the forum selection clause of the agreement between the instant parties must be considered. In Bremen, et al v. Zapata OffShore Co., 407 U.S. 1, 15, 92 S.Ct. 1907, 1916, 32 L.Ed.2d 513 (1972), the United States Supreme Court indicated that forum clauses should control absent a strong showing that it should be set aside. Courts have suggested that a forum clause, even though it is freely bargained for and contravenes no important public policy of the forum, may nevertheless be unreasonable and unenforceable if the chosen forum is seriously inconvenient for the trial of the action. Bremen at 16, 92 S.Ct. at 1916. According to Bremen, it can be assumed that parties do not consciously agree to have actions brought in an inconvenient place. Therefore, on rare occasions, it will be presumably in accord with the desire of the parties to have the trial in a substantially more convenient place than the chosen state. Bremen at 18, 92 S.Ct. at 1917. Both parties have expressed a preference to have this action transferred. Defendant seeks transfer of the cause to the Eastern District of Arkansas, where he currently resides. Plaintiff, seeks in the alternative, transfer of this cause to the Eastern District of New York, where it claims the cause of action arose. Texas now has only the most tenuous connection to the cause of action, that being only the choice-of-forum clause of the agreement. Actually, Texas no longer bears a reasonable relation to the dispute. Queen Noor, Inc. v. McGinn, 578 F.Supp. 218, 221 (S.D.Tex.1984). In ruling upon a section 1404(a) motion, the Court must consider the avail ability and convenience of witnesses and parties, the location of counsel, the location of books and records, the cost of obtaining attendance of witnesses and other trial expenses, the place of the alleged wrong, the possibility of delay and prejudice if transfer is granted, and the plaintiff’s" } ]

[ { "docid": "10996088", "title": "", "text": "Henderson and Bryan shall proceed as Case No. 95-248 in accordance with the deadlines previously set in this case. III. Motion to Transfer AT & T also seeks a transfer of each Plaintiffs case to the District encompassing the office in which each Plaintiff worked. Thus, AT & T seeks to transfer Plaintiff Bryan’s case to the Houston Division of the Southern District of Texas, Plaintiff Harry-man’s case to the Atlanta Division of the Northern District of Georgia, Plaintiff Henderson’s case to the Houston Division of the Southern District of Texas, Plaintiff Hipp’s case to the Western Division of the Western District of Missouri, and Plaintiff Talbert’s ease to the Dallas Division of the Northern District of Texas. Pursuant to 28 U.S.C. § 1404(a), “[f]or the convenience of parties and witnesses, in the interest of justice,” a case may be transferred to any other District Court or Division where it might have been brought. When considering whether a transfer is warranted, the Court must consider the following factors: the availability and convenience of witnesses and parties; the location of counsel; the location of books and records; the cost of obtaining attendance of witnesses and other trial expenses; the place of the alleged wrong; the possibility of delay and prejudice if transfer is granted; and the Plaintiffs choice of forum. Dupre v. Spanier Marine Corp., 810 F.Supp. 823, 825 (S.D.Tex.1993); see, e.g., Hogan v. Malone Lumber, Inc., 800 F.Supp. 1441, 1443 (E.D.Tex.1992); United Sonics, Inc. v. Shock, 661 F.Supp. 681, 682-83 (W.D.Tex.1986). The party seeking a change of venue bears the burden of demonstrating that the forum should be changed. Time, Inc. v. Manning, 366 F.2d 690, 698 (5th Cir.1966); Sanders v. State St. Bank & Trust Co., 813 F.Supp. 529, 534 (S.D.Tex.1993). Unless the balance of factors strongly favors the moving party, the Plaintiffs choice of forum generally should not be disturbed. Peteet v. Dow Chem. Co., 868 F.2d 1428, 1436 (5th Cir.), cert. denied, 493 U.S. 935, 110 S.Ct. 328, 107 L.Ed.2d 318 (1989); Enserch Int’l Exploration, Inc. v. Attock Oil Co., Ltd., 656 F.Supp. 1162, 1167 n. 15" }, { "docid": "10996089", "title": "", "text": "parties; the location of counsel; the location of books and records; the cost of obtaining attendance of witnesses and other trial expenses; the place of the alleged wrong; the possibility of delay and prejudice if transfer is granted; and the Plaintiffs choice of forum. Dupre v. Spanier Marine Corp., 810 F.Supp. 823, 825 (S.D.Tex.1993); see, e.g., Hogan v. Malone Lumber, Inc., 800 F.Supp. 1441, 1443 (E.D.Tex.1992); United Sonics, Inc. v. Shock, 661 F.Supp. 681, 682-83 (W.D.Tex.1986). The party seeking a change of venue bears the burden of demonstrating that the forum should be changed. Time, Inc. v. Manning, 366 F.2d 690, 698 (5th Cir.1966); Sanders v. State St. Bank & Trust Co., 813 F.Supp. 529, 534 (S.D.Tex.1993). Unless the balance of factors strongly favors the moving party, the Plaintiffs choice of forum generally should not be disturbed. Peteet v. Dow Chem. Co., 868 F.2d 1428, 1436 (5th Cir.), cert. denied, 493 U.S. 935, 110 S.Ct. 328, 107 L.Ed.2d 318 (1989); Enserch Int’l Exploration, Inc. v. Attock Oil Co., Ltd., 656 F.Supp. 1162, 1167 n. 15 (N.D.Tex.1987). Whether a case should be transferred is a decision left to the sound discretion of the trial court. Jarvis Christian College v. Exxon Corp., 845 F.2d 523, 528 (5th Cir.1988); Dupre, 810 F.Supp. at 825. As to Plaintiffs Henderson and Bryan, AT & T has failed to convince the Court that a transfer is warranted. In essence, AT & T contends that the convenience of the parties, witnesses, and attorneys requires a transfer to the Houston Division. Given the close proximity of the Houston Division courthouse to the Galveston Division courthouse, the Court finds that any added convenience resulting from the requested transfer would be minimal at best. See Continental Airlines, 805 F.Supp. at 1400. Moreover, Plaintiff Henderson resides in Galveston County. This Court is sincerely interested in resolving cases involving citizens of this Division, and only rarely transfers cases brought by or against its own citizens. Thus, the Court declines to disturb the forum chosen by Plaintiffs Henderson arid Bryan and introduce the likelihood of delay inherent with any transfer simply to avoid" }, { "docid": "18023092", "title": "", "text": "ORDER DENYING MOTION TO TRANSFER VENUE KENT, District Judge. This is a personal injury case arising under the Jones Act and general maritime law. Plaintiff allegedly was injured on November 15, 1996 while working aboard the S/S MARINE DUVAL. He filed this ease against Defendants on April 14, 1997. Now before the Court is Defendants’ Motion to Transfer Venue of August 14, 1997. For the reasons set forth below, the Motion is DENIED. Defendants seek a transfer to the Middle District of Florida based on 28 U.S.C. § 1404(a). Section 1404(a) provides: “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” 28 U.S.C. § 1404(a). Defendants bear the burden of demonstrating to the Court that it should, in its sound discretion, decide to transfer the action. Peteet v. Dow Chemical Co., 868 F.2d 1428, 1436 (5th Cir. 1989) (holding that the decision to transfer rests within the sound discretion of the district court); Time, Inc. v. Manning, 366 F.2d 690, 698 (5th Cir.1966) (holding that the defendant bears the burden of demonstrating that the action should be transferred). I. ANALYSIS The Court weighs the following factors when deciding whether a venue transfer is warranted: the availability and convenience of witnesses and parties, the location of counsel, the location of books and records, the cost of obtaining attendance of witnesses and other trial expenses, the place of the alleged wrong, the possibility of delay and prejudice if transfer is granted, and the plaintiff’s choice of forum, which is generally entitled to great deference. See, e.g., Dupre v. Spanier Marine Corp., 810 F.Supp. 823, 825 (S.D.Tex.1993); Continental Airlines v. American Airlines, 805 F.Supp. 1392, 1395-96 (S.D.Tex.1992) (discussing the importance of the plaintiffs choice of forum in light of the policies underlying § 1404(a)). 1) Availability and Convenience of Witnesses and Parties Defendants’ request of a transfer of venue to the Middle District of Florida is based on several factors. First, none of the parties to this lawsuit are residents" }, { "docid": "12341447", "title": "", "text": "of factors that favor transferring this action to the Southern District of Indiana. The place of the alleged wrong was Indiana. The availability and convenience of witnesses also favors an Indiana venue. Although Plaintiff relies heavily on the fact that the RIM process was designed in Texas, the actual injuries she alleges all occurred in Indiana. The design of the RIM process appears to be a peripheral issue at best. The key witnesses in this case will be Plaintiffs supervisors and coworkers at the GM plant in Indiana, the approximately twenty physicians who treated Plaintiff for her alleged injuries, and Plaintiff herself, all of whom reside in Indiana. While the Court has recognized that greater deference should be given to non-party witnesses, see Continental Airlines, Inc. v. American Airlines, Inc., 805 F.Supp. 1392, 1397 (S.D.Tex.1992), Plaintiff has pointed to few, if any, key witnesses who reside anywhere in Texas. The location of books and records also favors transfer. As previously stated, all of the key medical and personnel records are located in Indiana. The only records that exist in this District are those connected to the RIM process, again a peripheral issue. Next, Plaintiff argues that all parties have retained local counsel here. That fact is not surprising, considering the ease was filed in Texas, nor does it weigh heavily in the Court’s analysis. Finally, the Court generally will defer to the plaintiffs choice of forum where factually justified. See United Sonics, 661 F.Supp. at 683 (plaintiffs choice of forum is “most influential and should rarely be disturbed unless the balance is strongly in defendant’s favor”). However, the plaintiffs choice of forum will be given close scrutiny where, as here, the plaintiff does not live within the Division of the Court. Therefore, after careful consideration of the relevant factors and the specific facts of this case, the Court concludes that GM has carried its burden of demonstrating that a transfer would best serve the interests of justice and judicial efficiency, and would not delay the prompt resolution of Plaintiffs case. Accordingly, GM’s Motion to Transfer is GRANTED. III. CONCLUSION For" }, { "docid": "18023099", "title": "", "text": "places little weight in this factor as applied to the present facts. 4) Trial Expenses Defendants argue that “[t]he cost of obtaining witnesses at trial in the Southern District of Texas is the major factor supporting transfer ...” (Motion to Transfer, p. 7 (emphasis added)). However, in light of the facts alleged in Defendants’ Motion to Transfer, this argument has little merit. As discussed above, most of the witnesses reside in places other than Florida, the location of books and records is of little consequence to this case, most of the witnesses remain employed by Defendants aboard the MARINE DUVAL. To the contrary, the Court finds that the costs associated with trying this suit in Galveston likely will be less than those incurred by trying this ease in the Middle District of Florida. 5) Place of the Alleged Wrong Plaintiff was injured in Tampa, within the Middle District of Florida. This factor supports transfer. However, although the place of the alleged wrong is an important factor to consider when deciding whether to transfer venue, it is not the sole factor. See Dupre, 810 F.Supp. at 824; Furthermore, by Defendants’ own admission, the MARINE DUVAL continues to make frequent stops in Galveston and Houston. Therefore, the Court finds that the residents of the Southern District have more than a passing interest in the outcome of this litigation and the safety of operations aboard the MARINE DUVAL. Cf. Continental Airlines, 805 F.Supp. at 1399. (“Plaintiffs alleged Defendants engaged in violation of the ... law; to the extent residents in the Galveston Division suffered from these actions ... it cannot be said that they have no interest in the outcome of this litigation.”). 6) Possibility of Delay and Plaintiffs Choice of Forum Plaintiffs choice to litigate this case in the Galveston Division of the Southern District is entitled to great deference. See United Sonics, Inc. v. Shock, 661 F.Supp. 681, 683 (W.D.Tex.1986) (asserting that plaintiffs choice of forum is “most influential and should rarely be disturbed unless the balance is strongly in defendant’s favor”); Carlile v. Continental Airlines, Inc., 953 F.Supp. 169, 171" }, { "docid": "18023100", "title": "", "text": "is not the sole factor. See Dupre, 810 F.Supp. at 824; Furthermore, by Defendants’ own admission, the MARINE DUVAL continues to make frequent stops in Galveston and Houston. Therefore, the Court finds that the residents of the Southern District have more than a passing interest in the outcome of this litigation and the safety of operations aboard the MARINE DUVAL. Cf. Continental Airlines, 805 F.Supp. at 1399. (“Plaintiffs alleged Defendants engaged in violation of the ... law; to the extent residents in the Galveston Division suffered from these actions ... it cannot be said that they have no interest in the outcome of this litigation.”). 6) Possibility of Delay and Plaintiffs Choice of Forum Plaintiffs choice to litigate this case in the Galveston Division of the Southern District is entitled to great deference. See United Sonics, Inc. v. Shock, 661 F.Supp. 681, 683 (W.D.Tex.1986) (asserting that plaintiffs choice of forum is “most influential and should rarely be disturbed unless the balance is strongly in defendant’s favor”); Carlile v. Continental Airlines, Inc., 953 F.Supp. 169, 171 (S.D.Tex.1997) (Kent, J.). Furthermore, the possibility of delay plays a large role in the Court’s analysis. See Dupre, 810 F.Supp. at 828. Plaintiff was injured in No- • vember of 1996 and filed this case in April of 1997. Almost a year has passed since Plaintiffs accident. Although Defendants have the burden to demonstrate that transfer is proper, they have failed to establish any valid basis that warrants subjecting this case to the delays inherent in any transfer to any District. See Dupre, 810 F.Supp. at 828 (a prompt trial “is not without relevance to the convenience of parties and witnesses and the interest of justice”); Sanders v. State Street Bank, 813 F.Supp. 529, 536 (S.D.Tex.1993) (Kent, J.). II. CONCLUSION After careful consideration of the above factors in light of the facts in this case, the Court is unconvinced that the convenience realized and the expenses saved, if any, by transferring this case to the Middle District of Florida is sufficient to deprive the Plaintiff of his chosen forum, particularly in light of the delay" }, { "docid": "12341444", "title": "", "text": "accordingly must conclude that jurisdiction exists over this claim under 28 U.S.C. 1331. All Plaintiffs remaining claims, which stem from a common nucleus of operative fact, are also within the subject-matter jurisdiction of this Court under 28 U.S.C. § 1367(a). Accordingly, Plaintiffs Motion to Remand is DENIED. II. GM’S MOTION TO TRANSFER Next, GM moves for a transfer of venue to the Southern District of Indiana. Pursuant to 28 U.S.C. § 1404, “[f]or the convenience of parties and witnesses, in the interest of justice,” a case may be transferred to any other district or division where it originally could have been brought. When considering whether a transfer is warranted, the Court must consider the following factors: the availability and convenience of witnesses and parties; the location of counsel; the location of books and records; the cost of obtaining attendance of witnesses and other trial expenses; the place of the alleged wrong; the possibility of delay and prejudice if transfer is granted; and the plaintiffs choice of forum. Dupre v. Spanier Marine Corp., 810 F.Supp. 823, 825 (S.D.Tex.1993); see, e.g., Hogan v. Malone Lumber, Inc., 800 F.Supp. 1441, 1443 (E.D.Tex.1992); United Sonics, Inc. v. Shock, 661 F.Supp. 681, 682-83 (W.D.Tex.1986). The party seeking the transfer of venue bears the burden of demonstrating that, in its sound discretion, the Court should transfer the action. Peteet v. Dow Chemical Co., 868 F.2d 1428, 1436 (5th Cir.), cert. denied, 493 U.S. 935, 110 S.Ct. 328, 107 L.Ed.2d 318 (1989) (whether to transfer a case is a decision resting within the sound discretion of the District Court); Time, Inc. v. Manning, 366 F.2d 690, 698 (5th Cir.1966) (movant bears the burden of demonstrating that the action should be transferred). In this case, Plaintiff alleges that she was injured by chemical exposure while working at GM’s plant in Anderson, Indiana. The alleged defective equipment and hazardous waste are located in Indiana. Plaintiffs allegations of inadequate safety training, improper maintenance, improper and careless storage of chemicals, and chemical spillage occurred in Indiana as well. Furthermore, Plaintiff was treated by at least twenty doctors, all of whom are" }, { "docid": "23084398", "title": "", "text": "injury occurring in Texas, are properly maintainable in this Court. The defendants in these cases inevitably meet these actions with a motion to transfer venue. Therefore, the Court feels compelled to visit this area again for the benefit of educating others similarly situated who might contemplate the bring ing of actions in this Court or the transfer of actions from this Court. At the outset, it must be noted that although this case is primarily a dispute between parties from Louisiana, venue is appropriate in any “judicial district in which the defendants are subject to personal jurisdiction at the time the action is commenced.” 28 U.S.C.A. § 1391(a) (West Supp.1992). Because the plaintiff’s accident took place while the pushboat was within the borders of Texas, venue is permissible in this Court. 28 U.S.C.A. § 1404(a) (1976) states: “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district court or division where it might have been brought.” It is well settled that the party moving for a change of venue bears the burden of demonstrating why the forum should be changed. See, e.g., Time, Inc. v. Manning, 366 F.2d 690, 698 (5th Cir.1966); Enserch Int’l Exploration, Inc. v. Attock Oil Co., 656 F.Supp. 1162, 1167 n. 15 (N.D.Tex.1987). Whether to transfer a case under this statute is a decision that rests within the sound discretion of the trial court. See Jarvis Christian College v. Exxon Corp., 845 F.2d 523, 528 (5th Cir.1988). In reaching its decision, a court must consider several factors: the availability and convenience of witnesses and parties, the location of counsel, the location of books and records, the cost of obtaining attendance of witnesses and other trial expenses, the place of the alleged wrong, the possibility of delay and prejudice if transfer is granted, and the plaintiff’s choice of forum. See, e.g., Hogan v. Malone Lumber, Inc., 800 F.Supp. 1441, 1443 (E.D.Tex. 1992); United Sonics v. Shock, 661 F.Supp. 681, 682-83 (W.D.Tex.1986); Greiner v. American Motor Sales Corp., 645 F.Supp. 277, 278 (E.D.Tex.1986); Coons" }, { "docid": "5362875", "title": "", "text": "be joined as a plaintiff. Fatouros claims that Facebook disabled his account around the same time as it disabled Fteja’s because Fatouros had posted on his “wall” an editorial he had written for a Cypriot newspaper regarding politics in Northern Cyprus. (Fatouros Compl. ¶ 4.) Fteja consents to joining Fatouros but Facebook opposes the motion. LEGAL STANDARD “[F]ederal law, specifically 28 U.S.C. § 1404(a), governs the District Court’s decision whether to give effect to the parties’ forum-selection clause and transfer this case....\" Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 32, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988). \"A plaintiffs choice of forum `is entitled to significant consideration and will not be disturbed unless other factors weigh strongly in favor of transfer.’\" Hershman v. UnumProvident Corp., 658 F.Supp.2d 598, 601 (S.D.N.Y. 2009) (quoting Royal & Sunalliance v. British Airways, 167 F.Supp.2d 573, 576 (S.D.N.Y.2001)). \"The burden is on the moving party, here defendant], to make a clear and convincing showing that transfer is proper.\" Hershman, 658 F.Supp.2d at 600. “The threshold question in deciding transfer of venue ... is whether the action could have been brought in the transferee forum.” Atl. Recording Corp. v. Project Playlist, Inc., 603 F.Supp.2d 690, 695 (S.D.N.Y.2009). If the answer is yes, under 28 U.S.C. § 1404(a) “[a] district court may exercise its discretion to transfer venue ‘for the convenience of parties and witnesses, in the interest of justice.’ ” N.Y. Marine and Gen. Ins. Co. v. Lafarge N. Am., Inc., 599 F.3d 102, 112 (2d Cir.2010) (quoting 28 U.S.C. § 1404(a)). “A motion to transfer under § 1404(a) thus calls on the district court to weigh in the balance a number of case-specific factors.” Stewart Org., Inc., 487 U.S. at 29, 108 S.Ct. 2239. “Among the factors to be considered in determining whether to grant a motion to transfer venue are, inter alia: (1) the plaintiffs choice of forum, (2) the convenience of witnesses, (3) the location of relevant documents and relative ease of access to sources of proof, (4) the convenience of parties, (5) the locus of operative facts, (6) the availability" }, { "docid": "16029927", "title": "", "text": "Co., 868 F.2d 1428, 1436 (5th Cir.1989). The following factors are relevant: (1) the availability and convenience of witnesses and parties; (2) the place of the alleged wrong; (3) the location of the books and records; (4) the possibility of delay or prejudice if transfer is granted; (5) the location of counsel; and (6) the plaintiffs choice of forum. Hall, 64 F.Supp.2d at 644. (1) Availability and Convenience of the Witnesses and Parties Arguably, the convenience of the witnesses and parties is the most important factor in determining whether a case should be transferred pursuant to 28 U.S.C. § 1404(a). See Dupre v. Spanier Marine Corp., 810 F.Supp. 823, 825 (S.D.Tex.1993). In this case, Milk Train identifies two witnesses it intends to call at trial, Collen Pank and Michael J. Pank, both of whom are the owners of Milk Train. Milk Train states that it would be burdensome for those potential witnesses to attend trial in the Western District of Texas. However, the Court notes that these two witnesses are the only witnesses located in New York. Moreover, Milk Train is the only party located in New York. All the other parties to this suit, Plaintiff Moreno, Plaintiff Ortega, and Defendant AG-Labor Services, are located in El Paso, Texas. Because the majority of the parties are in Texas, and because only two witnesses are located in New York, the Court is of the opinion that this factor weighs against transferring venue. (2) Place of the Alleged Wrong In the instant case, the alleged wrong occurred both in Texas and in New York. Accordingly, the Court finds that this factor neither favors nor disfavors a transfer of venue. (3) Location of Books and Records When considering a motion to transfer venue, the location of books and other records is usually given little weight, unless the documents “are so voluminous that their transport is a major undertaking.” Gardipee v. Petroleum Helicopters, Inc., 49 F.Supp.2d 925, 931 (E.D.Tex.1999) (quoting Met-L-Wood Corp. v. SWS Indus., Inc., 594 F.Supp. 706, 710 (N.D.Ill.1984)). Here, Milk Train has not indicated which documents it believes are relevant to" }, { "docid": "7086937", "title": "", "text": "v. Exxon Corp., 845 F.2d 523, 528 (5th Cir.1988) (“Decisions to effect a 1404 transfer are committed to the sound discretion of the transferring judge, and review of a transfer is limited to’ abuse of that discretion.”); Marbury-Pattillo Constr. Co. v. Bayside Warehouse Co., 490 F.2d 155, 158 (5th Cir.1974) (declaring that whether to transfer venue is within the discretion of the trial court and will not be reversed on appeal absent an abuse of discretion). In determining whether a venue transfer is warranted, the Court considers the following factors: the availability and convenience of witnesses and parties; the location of counsel; the location of pertinent books and records; the cost of obtaining attendance of witnesses and other trial expenses; the place of the alleged wrong; the possibility of delay and prejudice if transfer is granted; and the plaintiffs choice of forum, which is generally entitled to great deference. See, e.g., Henderson v. AT & T Corp., 918 F.Supp. 1059, 1065 (S.D.Tex.1996) (Kent, J.); Dupre v. Spanier Marine Corp., 810 F.Supp. 823, 825 (S.D.Tex.1993) (Kent, J.); Continental Airlines, Inc. v. American Airlines, Inc., 805 F.Supp. 1392, 1395-96 (S.D.Tex.1992) (Kent, J.) (discussing the importance of the plaintiffs choice of forum in light of the policies underlying § 1404(a)). Continental maintains that Plaintiffs’ case should be transferred to the Houston Division principally because: (1) the vast majority of fact witnesses are located in the Houston Division, including the entire Continental flight crew; (2) Plaintiffs reside in Harris County, an area within the Houston Division; (3) Defendant is headquartered in Houston; (4) both Parties’ counsel have offices in Houston; (5) any relevant business or medical records can be found in either Houston or London; (6) the events of September 11, 2001 have so severely crippled the airline industry as to make it unduly burdensome for Continental to assume the unnecessary travel expenses associated with trial in Galveston, especially if multiple lawsuits of this type are filed here; and (7) the alleged wrong occurred either in Houston or London. In response, the Blansetts point out that: (1) Continental does not adequately identify witnesses or" }, { "docid": "23084399", "title": "", "text": "the party moving for a change of venue bears the burden of demonstrating why the forum should be changed. See, e.g., Time, Inc. v. Manning, 366 F.2d 690, 698 (5th Cir.1966); Enserch Int’l Exploration, Inc. v. Attock Oil Co., 656 F.Supp. 1162, 1167 n. 15 (N.D.Tex.1987). Whether to transfer a case under this statute is a decision that rests within the sound discretion of the trial court. See Jarvis Christian College v. Exxon Corp., 845 F.2d 523, 528 (5th Cir.1988). In reaching its decision, a court must consider several factors: the availability and convenience of witnesses and parties, the location of counsel, the location of books and records, the cost of obtaining attendance of witnesses and other trial expenses, the place of the alleged wrong, the possibility of delay and prejudice if transfer is granted, and the plaintiff’s choice of forum. See, e.g., Hogan v. Malone Lumber, Inc., 800 F.Supp. 1441, 1443 (E.D.Tex. 1992); United Sonics v. Shock, 661 F.Supp. 681, 682-83 (W.D.Tex.1986); Greiner v. American Motor Sales Corp., 645 F.Supp. 277, 278 (E.D.Tex.1986); Coons v. American Horse Show Ass’n, Inc., 533 F.Supp. 398, 400 (S.D.Tex.1982); Morgan v. Illinois Cent. R.R. Co., 161 F.Supp. 119, 120 (S.D.Tex.1958). The Court examines in turn each of these factors in the context of this case. A. Availability and Convenience of Witnesses and Parties. This factor is arguably the most important of those listed. See Fletcher v. Southern Pac. Transp. Co., 648 F.Supp. 1400, 1401-02 (E.D.Tex.1986); 15 Wright, Miller & Cooper, Federal Practice and Procedure § 3851 at 415 (1986). As this Court explained in Continental Airlines, 805 F.Supp. at 1396, in considering the availability and convenience of witnesses, a court must concentrate primarily upon the availability and convenience of key witnesses. The convenience of one key witness may outweigh the convenience of numerous less important witnesses. See, e.g., Young v. Armstrong World Indus., Inc., 601 F.Supp. 399, 401-02 (N.D.Tex.1984). Furthermore, the moving party must do more than make a general allegation that certain key witnesses are needed. See id.; 15 Wright, Miller & Cooper, § 3851 at 425. The movant must specifically identify" }, { "docid": "3385342", "title": "", "text": "the transfer. Acrotube, Inc. v. J.K. Fin. Group, Inc., 653 F.Supp. 470, 477 (N.D.Ga.1987). Therefore, when assessing the merits of a § 1404(a) motion, a court must determine if a transfer would make it substantially more convenient for the parties to litigate the case. Id. The decision to transfer a pending case is committed to the sound discretion of the district court. Van Dusen v. Barrack, 376 U.S. at 616, 84 S.Ct. at 809; Parsons v. Chesapeake & Ohio Ry. Co., 375 U.S. 71, 74, 84 S.Ct. 185, 187, 11 L.Ed.2d 137 (1963). The criteria weighed by a court in deciding a § 1404(a) motion include: (1) the convenience of the parties; (2) the convenience of material witnesses; (3) the availability of process to compel the presence of unwilling witnesses; (4) the cost of obtaining the presence of witnesses; (5) the relative ease of access to sources of proof; (6) calendar congestion; (7) where the events in issue took place; and (8) the interests of justice in general. St. Cyr v. Greyhound Lines, Inc., 486 F.Supp. 724, 727 (E.D.N.Y.1980); Goodman v. Schmalz, 80 F.R.D. 296, 300-01 (E.D.N.Y.1978); see also Dupre v. Spanier Marine Corp., 810 F.Supp. 823, 825 (S.D.Tex.1993). In a transfer of venue analysis under § 1404(a), the plaintiff’s choice of forum is entitled to great deference. Continental Airlines, Inc. v. American Airlines, Inc., 805 F.Supp. 1392, 1396 (S.D.Tex.1992). In the instant case, a review of the relevant factors indicates that a transfer is not warranted. Under 28 U.S.C. § 1391, venue is proper in the Southern District of Texas because that is where a substantial part of the events and alleged omissions occurred. While it may be more convenient for the Dentes to litigate in New Jersey, a balancing of the relevant factors favors litigating this dispute in Texas. The events giving rise to State Street’s cause of action occurred in the Southern District of Texas because the Dentes’ failure to pay the note in this district forms the basis of the claim. See General Latex & Chem. Corp. v. Phoenix Medical Tech., 765 F.Supp. 1246, 1250-51 (W.D.N.C." }, { "docid": "21407095", "title": "", "text": "the suit; and (9) the time, cost, and ease in which the trial can be conducted, and all other practical considerations relative to the trial. Lindloff v. Schenectady Intern., 950 F.Supp. 183, 185 (E.D.Tex.1996); Fletcher v. Southern Pac. Transp. Co., 648 F.Supp. 1400, 1401 (E.D.Tex.1986) (collecting authorities). The district court’s determination to transfer a case will be reversed only for an abuse of discretion. McKethan v. Texas Farm Bureau, 996 F.2d 734, 738 (5th Cir.1993). B. Analysis (1) Plaintiffs’choice of forum Plaintiffs claim that Reed’s exposure occurred at the Borger facility, and they do not challenge the propriety of venue in the Northern District. Plaintiffs argue, however, that their choice of forum should receive both “great deference” and “high esteem” from the trial court.. Pis.’ Resp. to Def.’s Mot. to Transfer Venue (hereinafter “Pis.’ Resp.”) at 3 (citing Emrick v. Calcasieu Kennel Club, Inc., 800 F.Supp. 482 (E.D.Tex. 1992)). Plaintiffs argue that their choice of forum should not be disturbed unless the balance of factors greatly favors the defendant. Pis.’ Resp. at 4 (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 91 L.Ed. 1055 (1947) and collecting authorities). The court disagrees. First, the deference given to a plaintiffs choice of forum is greater in a forum non conveniens transfer than it is in a § 1404(a) transfer. Continental Airlines v. American Airlines, 805 F.Supp. 1392, 1395 (S.D.Tex.1992); see also Norwood v. Kirkpatrick, 349 U.S. 29, 32, 75 S.Ct. 544, 99 L.Ed. 789 (1955) (district courts have more discretion to transfer cases under § 1404(a) than they do to dismiss cases for forum non conveniens). For example, in Box v. Ameritrust Texas, N.A., 810 F.Supp. 776, 780-81 (E.D.Tex.1992), the court held that great deference was to be given to a plaintiffs choice of forum in a § 1404(a) ease. However, Box relied on the Supreme Court’s opinion in Gulf Oil v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947), which was & forum non conveniens case. The Supreme Court has since clarified the fact that transfers under § 1404(a) should be examined under" }, { "docid": "2637984", "title": "", "text": "plaintiffs chosen forum.” Dow v. Jones, 232 F.Supp.2d 491, 499 (D.Md.2002)(eiting Helsel, 198 F.Supp.2d at 712). Mere assertions of inconvenience or hardship, without more, are insufficient to sustain a motion to dismiss or to transfer pursuant to § 1404(a). See Dow, 232 F.Supp.2d at 499; Helsel, 198 F.Supp.2d at 712. In deciding a motion to transfer venue under § 1404(a), the court must “weigh in the balance a number of case-specific factors.” Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988). The host of convenience factors a court should consider include: (1) the plaintiffs choice of forum; (2) relative ease of access to sources of proof; (3) availability of compulsory process for attendance of unwilling witnesses, and the cost of obtaining attendance of willing and unwilling witnesses; (4) possibility of a view of the premises, if appropriate; (5) enforceability of a judgment, if one is obtained; (6) relative advantage and obstacles to a fair trial; (7) other practical problems that make a trial easy, expeditious, and inexpensive; (8) administrative difficulties of court congestion; (9) local interest in having localized controversies settled at home; (10) appropriateness in having a trial of a diversity case in a forum that is at home with the state law that must govern the action; and (11) avoidance of unnecessary problems with conflicts of laws. Brown v. Stallworth, 235 F.Supp.2d 453, 456 (D.Md.2002)(quoting Choice Hotels Int’l, Inc. v. Madison Three, Inc., 23 F.Supp.2d 617, 622, n. 4 (D.Md.1998)(internal citations omitted)). The decision whether to transfer venue is committed to the sound discretion of the trial court. See Brock v. Entre Computer Ctr., Inc., 933 F.2d 1253, 1257 (4th Cir.1991). See also Stewart, 487 U.S. at 29, 108 S.Ct. 2239 (§ 1404(a) intended “to place discretion in the district court to adjudicate motions for transfer according to an ‘individualized, case-by-case consideration of convenience and fairness’ ”) (quoting Van Dusen v. Barrack, 376 U.S. 612, 622, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964)). 2. Forum Selection Clauses As noted before, when a defendant contests the validity of a forum selection" }, { "docid": "7086936", "title": "", "text": "1404(a): Section 1404(a) provides: “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” 28 U.S.C. § 1404(a). Defendant bears the burden of demonstrating to the Court that it should transfer the case. See Peteet v. Dow Chem. Co., 868 F.2d 1428, 1436 (5th Cir.1989) (requiring the defendant to make a showing that the forum sought is more convenient); Time, Inc. v. Manning, 366 F.2d 690, 698 (5th Cir.1966) (“At the very least, the plaintiffs privilege of choosing venue places the burden on the defendant to demonstrate why the forum should be changed.”). The decision to transfer a case rests within the sound discretion of the Court, and such determinations are reviewed under an abuse of discretion standard. See Peteet, 868 F.2d at 1436 (“A motion to transfer venue is addressed to the discretion of the trial court and will not be reversed on appeal absent an abuse of discretion.”);' Jarvis Christian Coll. v. Exxon Corp., 845 F.2d 523, 528 (5th Cir.1988) (“Decisions to effect a 1404 transfer are committed to the sound discretion of the transferring judge, and review of a transfer is limited to’ abuse of that discretion.”); Marbury-Pattillo Constr. Co. v. Bayside Warehouse Co., 490 F.2d 155, 158 (5th Cir.1974) (declaring that whether to transfer venue is within the discretion of the trial court and will not be reversed on appeal absent an abuse of discretion). In determining whether a venue transfer is warranted, the Court considers the following factors: the availability and convenience of witnesses and parties; the location of counsel; the location of pertinent books and records; the cost of obtaining attendance of witnesses and other trial expenses; the place of the alleged wrong; the possibility of delay and prejudice if transfer is granted; and the plaintiffs choice of forum, which is generally entitled to great deference. See, e.g., Henderson v. AT & T Corp., 918 F.Supp. 1059, 1065 (S.D.Tex.1996) (Kent, J.); Dupre v. Spanier Marine Corp., 810 F.Supp. 823, 825 (S.D.Tex.1993) (Kent," }, { "docid": "12584970", "title": "", "text": "1404(a) to another district or division, where it “might have been brought,” the court must consider whether the interests of the convenience of the witnesses and parties, as well as the interest of justice are served thereby. The movant seeking transfer pursuant to § 1404(a) has the burden of establishing, by reference to particular circumstances and by a preponderance of the evidence, that the transferee forum is clearly more convenient and that transfer is proper. Davidson v. Exxon Corporation, 778 F.Supp. 909, 911 (E.D.La. 1991). “[T]he defendant must make a convincing showing of the right to have the case transferred since § 1404(a) provides for transfer ‘to a more convenient forum, not to a forum likely to prove equally convenient or inconvenient.’ ” Southern Investors II v. Commuter Aircraft Corporation, 520 F.Supp. 212, 218 (M.D.La.1981), quoting Van Dusen v. Barrack, 376 U.S. 612, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964). When considering a motion to transfer pursuant to § 1404(a), federal courts have considered a number of factors outside the three enumerated in the statute. Some of these factors are: location of counsel; the location of books and records; ease of access to proof; where the case can be tried expeditiously and inexpensively; the cost of obtaining attendance of witnesses and other trial expenses; the place of the alleged wrong, the possibility of delay and prejudice if transfer is granted; and the plaintiff’s choice of forum. This last factor is very influential and should rarely be disturbed unless the balance is strongly in the defendant’s favor. Eddy v. Inland Bay Drilling & Workover, Inc., 784 F.Supp. 370, 375 n. 10 (S.D.Tex.1992); see also Sorrels Steel Company, Inc. v. Great Southwest Corp., 651 F.Supp. 623, 628 (S.D.Miss.1986). However, the general rule that the plaintiff’s choice of forum is not to be disturbed does not obtain where it is clearly outweighed by other factors. Howell v. Tanner, 650 F.2d 610, 616 (5th Cir.1981), cert. denied, 456 U.S. 919, 102 S.Ct. 1777, 72 L.Ed.2d 180 (1982). Once the court determines that transfer to a district other than that selected by the plaintiff would" }, { "docid": "3385343", "title": "", "text": "F.Supp. 724, 727 (E.D.N.Y.1980); Goodman v. Schmalz, 80 F.R.D. 296, 300-01 (E.D.N.Y.1978); see also Dupre v. Spanier Marine Corp., 810 F.Supp. 823, 825 (S.D.Tex.1993). In a transfer of venue analysis under § 1404(a), the plaintiff’s choice of forum is entitled to great deference. Continental Airlines, Inc. v. American Airlines, Inc., 805 F.Supp. 1392, 1396 (S.D.Tex.1992). In the instant case, a review of the relevant factors indicates that a transfer is not warranted. Under 28 U.S.C. § 1391, venue is proper in the Southern District of Texas because that is where a substantial part of the events and alleged omissions occurred. While it may be more convenient for the Dentes to litigate in New Jersey, a balancing of the relevant factors favors litigating this dispute in Texas. The events giving rise to State Street’s cause of action occurred in the Southern District of Texas because the Dentes’ failure to pay the note in this district forms the basis of the claim. See General Latex & Chem. Corp. v. Phoenix Medical Tech., 765 F.Supp. 1246, 1250-51 (W.D.N.C. 1991). To support their respective positions, State Street and the Dentes list potential -witnesses whose testimony they contend will be required at trial. The relative convenience to the witnesses if often recognized as the most important factor to be considered in ruling on a motion under § 1404(a). See Electronic Transaction Network v. Katz, 734 F.Supp. 492, 501 (N.D.Ga.1989); Saminsky v. Occidental Petroleum Corp., 373 F.Supp. 257, 259 (S.D.N.Y.1974). In addition to themselves, the Dentes have identified only one witness who resides in New Jersey—John Carpenter (“Carpenter”), the manager of the Woodbridge Mall. According to the Dentes, Carpenter will testify about the negotiations for renewal of the lease. State Street, however, contends that Carpenter’s testimony will be relevant only if the court determines that the note is ambiguous and that the lease negotiations affected the Dentes’ continuing obligations under the note. State Street’s list consists of at least nine non-party witnesses who reside in the Southern District of Texas. State Street contends that this list may be expanded to include witnesses necessary to establish the" }, { "docid": "7424966", "title": "", "text": "the burden of demonstrating that the action should be transferred). In determining whether to grant a motion to transfer venue under section 1404(a), a district court must balance the private convenience interests of the litigants and the public interests in the fair and efficient administration of justice. See In re Triton Ltd. Sec. Lit., 70 F.Supp.2d 678, 688 (E.D.Tex.1999); Robertson v. Kiamichi RR Co., 42 F.Supp.2d 651, 655 (E.D.Tex.1999). A. Private Convenience Interests Generally, the party seeking the transfer bears a heavy burden of showing that the convenience factors favor transfer. See In re Triton, 70 F.Supp.2d at 688. Moreover, the defendant seeking transfer cannot carry this burden by making unsupported assertions, but must properly establish the relevant facts. See id. (“Defendants seeking a transfer cannot carry their burden merely by making unsupported assertions, but rather must properly establish relevant facts by affidavit, deposition, or otherwise.”). The private convenience factors include: (1) the convenience of the parties and witnesses; (2) the place of the alleged wrong; (3) the location of counsel; (4) the cost of obtaining the attendance of witnesses; (5) the accessibility and location of sources of proof; (6) the possibility of delay and prejudice if a transfer is granted; and (7) the plaintiffs choice of forum, which is usually given great deference. See Robertson, 42 F.Supp.2d at 655; In re Triton, 70 F.Supp.2d at 688 (“The plaintiffs choice of forum is paramount consideration in any determination of transfer request and that choice of forum should not be lightly disturbed.”). The presence of a forum-selection clause changes the analysis in that the Court must consider convenience and fairness in light of the parties express preference for the chosen forum. See Stewart, 487 U.S. at 29-30, 108 S.Ct. 2239 (stating that section 1404(a) places discretion in the district court to adjudicate motions to transfer according to an “individualized, case-by-case consideration of convenience and fairness”). While the presence of the forum selection clause is “a significant factor that figures centrally in the [ ] court’s decision,” the court may also consider the relative bargaining power of the parties. Id. at 29," }, { "docid": "18023093", "title": "", "text": "court); Time, Inc. v. Manning, 366 F.2d 690, 698 (5th Cir.1966) (holding that the defendant bears the burden of demonstrating that the action should be transferred). I. ANALYSIS The Court weighs the following factors when deciding whether a venue transfer is warranted: the availability and convenience of witnesses and parties, the location of counsel, the location of books and records, the cost of obtaining attendance of witnesses and other trial expenses, the place of the alleged wrong, the possibility of delay and prejudice if transfer is granted, and the plaintiff’s choice of forum, which is generally entitled to great deference. See, e.g., Dupre v. Spanier Marine Corp., 810 F.Supp. 823, 825 (S.D.Tex.1993); Continental Airlines v. American Airlines, 805 F.Supp. 1392, 1395-96 (S.D.Tex.1992) (discussing the importance of the plaintiffs choice of forum in light of the policies underlying § 1404(a)). 1) Availability and Convenience of Witnesses and Parties Defendants’ request of a transfer of venue to the Middle District of Florida is based on several factors. First, none of the parties to this lawsuit are residents of Texas. Defendants further argue that none of the witnesses to the accident live in Texas, but instead, live in various parts of the world, including Florida, Virginia, New York, Maine, and Guatemala. The convenience of the witnesses and the parties is generally a primary concern of this Court when considering transfer motions. Here, although Defendants list a multitude of potential witnesses, including all persons aboard the vessel at the time of the accident, only six of those identified are key witnesses who will likely testify to the facts surrounding the accident. C/M Jones, 3/M Ross, GVAI Wheatley, and Boatswain Rivers actually witnessed the accident in which Plaintiff was injured. A.B. Ladefoged, although not an eye witness, has knowledge of, and is expected to testify about, deck conditions at the time of Plaintiffs accident. These key witnesses identified by Defendants live in Florida, Maine, Virginia, Florida, and Guatemala respectively. Defendant also argues that the Ship Superintendent, who resides in New York, is expected to testify. Thus, the key witnesses identified by Defendants are not just" } ]

[ { "docid": "1228828", "title": "", "text": "must weigh them to determine whether the equities warrant a conclusion that inequitable conduct occurred.”). We perceive no abuse of discretion here. The district court’s inequitable conduct finding is correct. D. Walker Process Antitrust Claim The defendants in this case counterclaimed against DDI for violation of § 2 of the Sherman Act, and the same jury that found the patent obvious found DDI liable on that counterclaim. Proof that a patentee has “obtained the patent by knowingly and willfully misrepresenting facts to the Patent Office ... [is] sufficient to strip [the patentee] of its exemption from the antitrust laws.” Walker Process Equip., Inc. v. Food Mach. & Chem. Corp., 382 U.S. 172, 177, 86 S.Ct. 347, 15 L.Ed.2d 247 (1965). A party who asserts such a fraudulently obtained patent may be subject to an antitrust claim. If a patentee asserts a patent claim and the defendant can demonstrate the required fraud on the PTO, as well as show that “the other elements necessary to a § 2 case are present,” the defendant-counter-claimant is entitled to treble damages under the antitrust laws. Id. at 175, 86 S.Ct. 347. The first barrier for a Walker Process claimant to clear is the requirement that the patent be obtained through actual fraud upon the PTO. This question is governed by Federal Circuit law. No-belpharma AB v. Implant Innovations, Inc., 141 F.3d 1059, 1068 (Fed.Cir.1998) (en banc in relevant part). A finding of inequitable conduct does not by itself suffice to support a finding of Walker Process fraud, because “inequitable conduct is a broader, more inclusive concept than the common law fraud needed to support a Walker Process counterclaim.” Nobelpharma, 141 F.3d at 1069. To demonstrate Walker Process fraud, a claimant must make higher threshold showings of both materiality and intent than are required to show inequitable conduct. Id. at 1070-71; C.R. Bard, Inc. v. M3 Sys., Inc., 157 F.3d 1340, 1364 (Fed.Cir.1998) (Walker Process claimant “must make a greater showing of scienter and materiality than when seeking unenforceability based on conduct before the Patent Office”). Furthermore, a finding of Walker Process fraud cannot result" } ]

[ { "docid": "9352463", "title": "", "text": "however, concerned a question of which state law governs in a federal diversity action and is not directly applicable to the transfer of a federal question case for purposes of pretrial discovery. See In re Korean Air Lines Disaster, 829 F.2d 1171 (D.C.Cir.1987), cert. granted, 485 U.S. 986, 108 S.Ct. 1288, 99 L.Ed.2d 499 (1988), aff'd on other grounds, Chan v. Korean Airlines, Ltd., 490 U.S. 122, 109 S.Ct. 1676, 104 L.Ed.2d 113 (1989). Although the complaint, at least in theory , ultimately will be transferred back to the Ninth Circuit for trial, there is no compelling reason why Ninth Circuit decisions should take precedence over those in the Seventh Circuit. If a party were to appeal a pretrial decision by this court, then the appeal would be made to the Seventh Circuit Court of Appeals, not the Ninth Circuit. The Seventh Circuit has recognized this rule of law and stated: Although the multidistrict statute does not say which court of appeals has juris diction over appeals from orders by the district court to which a case is transferred, most eases hold that it is the court of appeals covering the transferee court rather than the one covering the transferor court. FMC Corp. v. Glouster Engineering Co., 830 F.2d 770, 771 (7th Cir.1987), cert. dismissed, 486 U.S. 1063, 108 S.Ct. 2838, 100 L.Ed.2d 937 (1988). The Seventh Circuit is the proper court for an appeal because the Ninth Circuit has no jurisdiction over the case until this court retransfers, if appropriate, the case there. Manual for Complex Litigation, Second, § 31.121; See also FMC Corp., 830 F.2d at 771-72 (1987); Allegheny Airlines, Inc. v. LeMay, 448 F.2d 1341, 1344 (7th Cir.1971) (per curiam), cert. denied, 404 U.S. 1001, 92 S.Ct. 565, 30 L.Ed.2d 553 (1974); In re Corrugated Container Antitrust Litigation, 662 F.2d 875, 880 (D.C.Cir.1981); Preston Corp. v. Raese, 335 F.2d 827, 828 (4th Cir.1964); Astarte Shipping Co. v. Allied Steel & Export Service, 767 F.2d 86 (5th Cir.1985) (per curiam); In re Plumbing Fixture Cases, 298 F.Supp. 484 (J.P.M.D.L.1968). In addition, the District of Columbia Circuit Court has" }, { "docid": "3323042", "title": "", "text": "ultimate determination de novo, and the underlying factual findings for clear error.\" Linear Tech. Corp. v. Micrel, Inc., 275 F.3d 1040, 1047 (Fed.Cir.2001). Taken together, then, we must review the district court's summary judgment of invalidity and unenforceability by considering whether the facts, viewed in the light most favorable to ConAgra, nevertheless provide clear and convincing evidence of either (or both) prior use or prior sale. See Linear Tech., 275 F.3d at 1047; Liquid Dynamics, 355 F.3d at 1367. The district court also entered judgment against ConAgra after the jury found antitrust liability on Unitherm's Walker Process claim. We apply Federal Circuit law to all antitrust claims premised on the bringing of a patent infringement suit. Nobelpharma AB v. Implant Innovations, 141 F.3d 1059, 1068 (Fed.Cir.1998) (en banc in relevant part). Whether a patentee's conduct in procuring or enforcing a patent is sufficient to strip its immunity from the antitrust laws is therefore a legal question that we review de novo under Federal Circuit law. Id. We apply the law of the regional circuit, in this case, the Tenth Circuit, to the elements of antitrust claims that are not unique to patent law. Id. These elements include but are not restricted to considerations of antitrust standing, market definition, antitrust injury, and damages. Id. The Tenth Circuit recognizes antitrust standing, like all questions of standing to sue, as a question of law subject to de novo review. Ashley Creek Phosphate Co. v. Chevron USA, Inc., 315 F.3d 1245, 1253-1254 (10th Cir.2003); Motive Parts Warehouse v. Facet Enters., 774 F.2d 380, 389 (10th Cir.1985). Market definition and antitrust injury, on the other hand, are intensely factual determinations. See e.g., Eastman Kodak Co. v. Image Technical Servs., 504 U.S. 451, 482, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992) (\"The proper market definition in this case can be determined only after a factual inquiry into the `commercial realities' faced by consumers.\"); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (\"To survive petitioners' motion for summary judgment, respondents must establish that there is a" }, { "docid": "8355589", "title": "", "text": "a transfer. Just as Erie R.R. v. Tompkins aimed to prevent forum-shopping by compelling federal courts to apply the law of the state in which they sit, the Supreme Court in Van Dusen sought to “ensure that the ‘accident’ of federal diversity jurisdiction does not enable a party to utilize a transfer to achieve a result in federal court which could not have been achieved in the courts of the State where the action was filed.” 376 U.S. 612, 638, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964); see also Ferens v. John Deere Co., 494 U.S. 516, 523, 110 S.Ct. 1274, 108 L.Ed.2d 443 (1990). With cases based on federal question jurisdiction, however, adopting the law of multiple transferor circuits poses problems. As the D.C. Circuit observed in In re Korean Air Lines Disaster, “because there is ultimately a single proper interpretation of federal law, the attempt to ascertain and apply diverse circuit interpretations simultaneously is inherently self-contradictory.” 829 F.2d 1171, 1175 (D.C.Cir.1987). For this reason, circuits considering the issue since Korean Air have held that, in federal question cases consolidated under § 1407, the law of the transferor court warrants “close consideration” but does not bind the transferee court. Id. at 1176; see also, e.g., Menowitz v. Brown, 991 F.2d 36, 41 (2d Cir.1993); In re Temporomandibular Joint Implants Prods. Liab. Litig., 97 F.3d 1050, 1055 (8th Cir.1996). Although the Seventh Circuit has yet to decide which law governs federal claims in cases transferred under 28 U.S.C. § 1407, it has adopted the rationale of Korean Air when resolving the question under 28 U.S.C. § 1404(a), which authorizes district courts to transfer cases for reasons of convenience. See McMasters v. U.S., 260 F.3d 814, 819 (7th Cir.2001); Eckstein v. Balcor Film Investors, 8 F.3d 1121, 1126 (7th Cir.1993), cert. denied, 510 U.S. 1073, 114 S.Ct. 883, 127 L.Ed.2d 78 (1994). Under § 1404(a), a transferee court in the Seventh Circuit is “free to decide [federal claims] in the manner it views as correct without deferring to the interpretation of the transferor circuit.” McMasters v. U.S., 260 F.3d at 819" }, { "docid": "22856847", "title": "", "text": "Report or to consider the omission of any mention of this report from the Prospectus.\" Brief for Appellants at 10-11 n. 8 (emphasis added). Nevertheless, in their reply brief and at oral argument plaintiffs advanced arguments premised on the Laventhol Report. It is well-established that, ”[a]s a general matter, the courts of appeals will not consider arguments raised on appeal for the first time in a reply brief.” Hoxworth v. Blinder, Robinson & Co., 903 F.2d 186, 205 n. 29 (3d Cir.1990); accord International Raw Materials, Ltd. v. Stauffer Chem. Co., 978 F.2d 1318, 1327 n. 11 (3d Cir.1992), cert. denied, - U.S. -, 113 S.Ct. 1588, 123 L.Ed.2d 154 (1993). Under these circumstances, then, we will not reach the merits of this issue. . The transfer of the complaints filed in the Southern and Eastern Districts of New York to the District of New Jersey presents a potential choice of law issue in terms of whether Second or Third Circuit precedent controls. The district court followed the approach the D.C. Circuit adopted in the leading case on choice of law in multidistrict transfers, see In re Korean Air Lines Disaster, 829 F.2d at 1176. Consequently, the district court held that while only this court's precedent would control, the Second Circuit’s precedent would merit close consideration. See In re Donald I. Trump Sec. Litig., 793 F.Supp. at 548. Because neither party has challenged the district court’s holding on this point, we assume without deciding that it was correct. . Although the plaintiffs did not attach the prospectus to their complaint, the defendants appended it to their motion to dismiss. We recently held that \"a court may consider an undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the document.” Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir.1993). Because the complaint directly challenged the prospectus, the district court properly considered the prospectus in deciding whether to grant the Rule 12(b)(6) motion. . There are substantial differences between the elements a plaintiff must" }, { "docid": "3323082", "title": "", "text": "433 F.2d 779. ConAgra’s knowing and willful misrepre sentation therefore constituted fraud on the PTO. See Molins, 48 F.3d at 1180-1181; Spalding, 203 F.3d at 807. Unitherm has thus met the first and most basic requirement for bringing a Walker Process claim. Unitherm has shown that, as a matter of Federal Circuit antitrust law, ConAgra attempted to enforce a patent that it obtained through fraud on the PTO. ConAgra is therefore stripped of its antitrust immunity and susceptible to antitrust liability — provided that Unitherm can show that ConAgra’s behavior met all other necessary elements of a § 2 claim subject to Tenth Circuit law. (v) Standing Federal Circuit antitrust law is directed, almost entirely, to a single question: “[WJhether conduct in procuring or enforcing a patent is sufficient to strip a patentee of its immunity from the antitrust laws.” Nobelpharma, 141 F.3d at 1068. Once we have determined, as we have here, that a patentee deserves no antitrust immunity, our inquiry shifts to apply the substantive antitrust laws of the regional circuit. Id. ConAgra challenges on appeal, as it did below, Unitherm’s standing to bring its antitrust claim. It is widely recognized that an antitrust plaintiff must allege more than simply that the defendant’s wrongful behavior directly damaged the plaintiffs business, but also that the accused behavior stifled competition. See, e.g., Ill. Brick Co. v. Illinois, 431 U.S. 720, 724, 97 S.Ct. 2061, 52 L.Ed.2d 707 (1977); E. Food Servs., Inc. v. Pontifical Catholic Univ. Servs. Ass’n, 357 F.3d 1, 4 (1st Cir.2004); Hayes v. Solomon, 597 F.2d 958, 973 (5th Cir.1979). The line between antitrust claims and ordinary business tort and contract claims is not always clear. Some behavior, (according to Unitheriñ, ConAgra’s behavior), can give rise to both sets of claims; the classic example is a near monopolist who burns down the plant of his only competitor. See E. Food, 357 F.3d at 4. For Unitherm to possess antitrust standing under Tenth Circuit law, it must demonstrate that ConAgra’s behavior caused it to suffer an “antitrust injury.” Ashley Creek Phosphate Co. v. Chevron USA, Inc., 315 F.3d" }, { "docid": "17558635", "title": "", "text": "so. An indirect purchaser can bear some part of the monopoly overcharge for a product even when that product does not pass from the direct to the indirect purchaser. For example, in Landes and Posner's example of the bread buyer, the bread buyer pays a higher price for bread because the baker passes along some part of the monopoly overcharge paid for the oven. . The situation may be different when the firm is party to the antitrust violation. Cf. In re Midwest Milk Monopolization Litigation, 730 F.2d 528, 529-30 (8th Cir.1984), cert. denied, 469 U.S. 924, 105 S.Ct. 306, 83 L.Ed.2d 240 (1984); In re Beef Industry Antitrust Litigation, 600 F.2d 1148, 1163 (5th Cir.1979), cert. denied, 449 U.S. 905, 101 S.Ct. 280, 66 L.Ed.2d 137 (1980); McCarthy, 80 F.3d at 854. . The plaintiffs do characterize the venues as beneficiaries of and participants in Ticketmaster’s unlawful activity, but the plaintiffs have not joined the venues as defendants. In this circuit, an antitrust plaintiff cannot avoid the Illinois Brick rule by characterizing a direct purchaser as a party to the antitrust violation, unless the direct purchaser is joined as a defendant. See In re Midwest Milk Monopolization Litigation, 730 F,2d at 529—31. These consolidated cases are controlled by the law of this circuit, rather than that of the various circuits in which they were first filed. See Temporomandibular loint (TMJ) Implant Recipients v. E.I. Du Pont De Nemours & Co., 97 F.3d 1050, 1055 (8th Cir.1996)(“When analyzing questions of federal law, the transferee court should apply the law of the circuit in which it is located.”); see also In re Korean Air Lines Disaster, 829 F.2d 1171 (D.C.Cir.1987), aff'd sub nom Chan v. Korean Air Lines, Ltd., 490 U.S. 122, 109 S.Ct. 1676, 104 L.Ed.2d 113 (1989); but see Cooper, The Korean Air Disaster: Choice of Law in Federal Multidistrict Litigation, 57 Geo. Wash.L.Rev. 1145 (1989). . We note that, unlike in the Eastman Kodak case, there are no information costs here that may prevent the plaintiffs from separating out from the total purchase price the actual purchase price" }, { "docid": "22292158", "title": "", "text": "another determine his case.’ ” Coker, 950 F.2d at 847 (quoting H.L. Green Co. v. MacMahon, 312 F.2d 650, 652 (2d Cir.1962), cert. denied, 372 U.S. 928, 83 S.Ct. 876, 9 L.Ed.2d 736 (1963)); see also In re Pittsburgh & Lake Erie R.R. Co. Sec. & Antitrust Litig., 543 F.2d 1058, 1065 n. 19 (3d Cir.1976) (“federal law, in its area of competence, is assumed to be nationally uniform, whether or not it is in fact”). Applying Van Dusen by analogy to issues of federal law also runs contrary to the principle that, until the Supreme Court speaks, the federal circuit courts are under duties to arrive at their own determinations of the merits of federal questions presented to them; “ ‘[i]f a federal court simply accepts the interpretation of another circuit without [independently] addressing the merits, it is not doing its job.’ ” In re Korean Air Lines Disaster, 829 F.2d at 1175 (quoting R.L. Marcus, Conflict Among Circuits and Transfers Within the Federal Judi- dal System, 93 Yale L.J. 677, 702 (1984)). Our construction of the pre-trial transfer statute also serves the goals of administrative efficiency underlying § 1407. It would be unwieldy, if not impossible, for a court to apply differing rules of federal law to various related cases consolidated before it. See id. at 1174-76 (D.H. Ginsburg, J., concurring); see also In re Integrated Resources Real Estate Ltd. Partnerships Sec. Litig., 815 F.Supp. 620 (S.D.N.Y.1993). Whether or not courts apply a state limitations period to a federal claim, “the choice of a limitations period for a federal cause of action is itself a question of federal law.” DelCostello v. International Bhd. of Teamsters, 462 U.S. 151, 159 n. 13, 103 S.Ct. 2281, 2289 n. 13, 76 L.Ed.2d 476 (1983) (citation omitted). Where a federal statute lacks an explicit statute of limitations, federal courts may apply limitations periods provided by analogous state laws (as we did in § 10(b)/Rule 10b-5 actions prior to Ceres), may select a federal limitations period (as we did in Ceres), or may choose not to apply a limitations period at all, see" }, { "docid": "5428110", "title": "", "text": "another circuit without independently addressing the merits, it is not doing its job.” In re Korean Air Lines Disaster, 829 F.2d 1171, 1175 (D.C.Cir.1987) (Ruth Bader Ginsburg, J.), aff'd sub nom. on other grounds, Chan v. Korean Air Lines, Ltd., 490 U.S. 122, 109 S.Ct. 1676, 104 L.Ed.2d 113 (1989) (iquoting R.L. Marcus, Conflict Among Circuits and Transfers Within the Federal Judicial System, 93 Yale L.J. 677, 702 (1984)). District courts also have a paramount interest in enforcing subpoenas emanating from their jurisdiction in a predictable and consistent manner. That interest would be undermined if a district, court were required to apply choice of law principles whenever a discovery dispute involved litigation pending in another district or circuit. Apart from spawning wasteful litigation over the appropriate choice of law, such a rule would leave litigants wondering what body of precedent governs their discovery dispute. Even after that bridge was crossed, the body of precedent created through such an itinerant analysis would be infused with a subtle layer of uncertainty. Litigants would then be required to intuit whether the holding of a particular case hinged on Second Circuit precedent or on the application of another circuit’s pronouncements. In short, the line of reasoning advocated by Reuters would obscure rather than enhance uniformity in federal jurisprudence. It is noteworthy that Reuters has not cited a single case employing choice of law analysis as between circuits. On the contrary, in cases like this one, courts have uniformly applied the law of the circuit in which the subpoena issued. See Gonzales v. National Broadcasting Co., Inc., 155 F.3d 618 (2d Cir.1998) (applying federal law as interpreted by the Second Circuit in federal question case where underlying action litigated in Western District of Louisiana and subpoena issued by Southern District of New York); In re Madden, 151 F.3d 125 (3d Cir.1998) (applying federal law as interpreted by the Third Circuit in federal question case where underlying action litigated in District of Connecticut and subpoenas issued by Western District of Pennsylvania); In re Application of Dow Jones & Co., Inc., 1998 WL 883299 (S.D.N.Y.1998) (applying federal" }, { "docid": "8355588", "title": "", "text": "environmental regulations made continued voluntary production economically unfeasible. Noranda and Falconbridge further argue that DuPont’s production was only temporarily reduced to deal with a short-term inventory bubble. I. Choice of Law As an initial matter, the Court must identify the governing law in this case. 28 U.S.C. § 1407 authorizes the Judicial Panel on Multidistrict Litigation to consolidate, by transfer of venue to a single district, civil actions pending in different federal courts. When cases are based on diversity of citizenship, the transferee court must apply the state laws that the transferor forums would have, according to that forums’ choice-of-law rules. See In re Data General Corp. Antitrust Litigation, 510 F.Supp. 1220, 1227-28 (J.P.M.L.1979) (quoting In re Air Crash Disaster at John F. Kennedy International Airport on June 21, 1975, 407 F.Supp. 244, 246-47 (J.P.M.L.1976); In re Air Crash Disaster Near Chicago, 644 F.2d 594, 610 (7th Cir.1981)). This practice parallels the principle set forth in Van Dusen v. Barrack, which teaches that, under 28 U.S.C. § 1404(a), the law of the transferor forum accompanies a transfer. Just as Erie R.R. v. Tompkins aimed to prevent forum-shopping by compelling federal courts to apply the law of the state in which they sit, the Supreme Court in Van Dusen sought to “ensure that the ‘accident’ of federal diversity jurisdiction does not enable a party to utilize a transfer to achieve a result in federal court which could not have been achieved in the courts of the State where the action was filed.” 376 U.S. 612, 638, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964); see also Ferens v. John Deere Co., 494 U.S. 516, 523, 110 S.Ct. 1274, 108 L.Ed.2d 443 (1990). With cases based on federal question jurisdiction, however, adopting the law of multiple transferor circuits poses problems. As the D.C. Circuit observed in In re Korean Air Lines Disaster, “because there is ultimately a single proper interpretation of federal law, the attempt to ascertain and apply diverse circuit interpretations simultaneously is inherently self-contradictory.” 829 F.2d 1171, 1175 (D.C.Cir.1987). For this reason, circuits considering the issue since Korean Air have held" }, { "docid": "4152965", "title": "", "text": "a hearing, it is hereby ORDERED that the Motion is GRANTED in part and DENIED in part. The Motion is GRANTED as to the Seventh Count, asserting violations of the Racketeer Influenced and Corrupt Organizations Act, as plaintiffs have failed to plead any predicate acts. The Motion is DENIED as to the Eighth Count, alleging violations of the Employee Retirement Security Act of 1974. . A separate motion for class certification is also pending in this case with respect to the ERISA allegations. This memorandum does not address those issues. . Ikon supplies copiers, printing systems, and similar services in the United States and Europe. See In re Ikon Office Solutions, Inc. Sec. Litig., 66 F.Supp.2d 622, 625 (E.D.Pa. 1999). . On this count, there are two named plaintiffs: Julia Whetman and Judy Peterson. . Other courts in this jurisdiction have applied In re KAL in addressing similar choice of law questions. See In re Donald J. Trump Casino Sec. Litig., 7 F.3d 357, 369 n. 8 (3d Cir.1993) (assuming without deciding that district court's decision to follow In re KAL Disaster was correct); In re Asbestos Prods. Liab. Litig., MDL No. 875, 1996 WL 239863, at *3 (E.D.Pa. May 2, 1996) (applying same rule); In re Orthopedic Bone Screw Prods. Liab. Litig., MDL No. 1014, 1996 WL 221784, at *1 n. 5 (E.D.Pa. Apr.8, 1996) (same); Novodzelsky v. Astor, Weiss & Newman, Civ. A. No. 94-2407, 1994 WL 527281, at *3 (E.D.Pa. Sept.22, 1994) (same). Also, all the parties commenting on the choice-of-law issue concluded that Third Circuit law should govern. .A court should grant a motion to dismiss only if the defendant establishes that “plaintiffs could prove no set of facts that would entitle them to relief.” Nami v. Fauver, 82 F.3d 63, 65 (3d Cir.1996); see also Johnsrud v. Carter, 620 F.2d 29, 33 (3d Cir.1980) (stating that burden is on m.oving party). The court must determine whether \"under any reasonable reading of the pleadings, the plaintiffs may be entitled to relief” and must \"accept as true the factual allegations in the complaint and all reasonable inferences" }, { "docid": "17558636", "title": "", "text": "purchaser as a party to the antitrust violation, unless the direct purchaser is joined as a defendant. See In re Midwest Milk Monopolization Litigation, 730 F,2d at 529—31. These consolidated cases are controlled by the law of this circuit, rather than that of the various circuits in which they were first filed. See Temporomandibular loint (TMJ) Implant Recipients v. E.I. Du Pont De Nemours & Co., 97 F.3d 1050, 1055 (8th Cir.1996)(“When analyzing questions of federal law, the transferee court should apply the law of the circuit in which it is located.”); see also In re Korean Air Lines Disaster, 829 F.2d 1171 (D.C.Cir.1987), aff'd sub nom Chan v. Korean Air Lines, Ltd., 490 U.S. 122, 109 S.Ct. 1676, 104 L.Ed.2d 113 (1989); but see Cooper, The Korean Air Disaster: Choice of Law in Federal Multidistrict Litigation, 57 Geo. Wash.L.Rev. 1145 (1989). . We note that, unlike in the Eastman Kodak case, there are no information costs here that may prevent the plaintiffs from separating out from the total purchase price the actual purchase price and service fee components. See Eastman Kodak, 504 U.S. at 473-74, 112 S.Ct. at 2085-86. MORRIS SHEPPARD ARNOLD, Circuit Judge, dissenting. The court holds that Illinois Brick, Co. v. Illinois, 431 U.S. 720, 97 S.Ct. 2061, 52 L.Ed.2d 707 (1977), precludes these plaintiffs from bringing an antitrust action against Ticketmaster under Section 4 of the Clayton Act, see 15 U.S.C. § 15(a). I respectfully disagree. The court begins its opinion by attempting to clarify the meaning of the phrase “indirect purchaser” in the antitrust context. Citing Illinois Brick itself, numerous other cases, and several law review articles, the court concludes that “[a]n indirect purchaser is one who bears some portion of a monopoly overcharge only by virtue of an antecedent transaction between the monopolist and [a direct purchaser].” The phrase “antecedent transaction,” however, appears nowhere in the authorities relied on, and, in fact, a mere “antecedent transaction” will not turn all purchasers of a monopolized product into indirect purchasers for the purposes of Illinois Brick. Illinois Brick, 431 U.S. at 727, 97 S.Ct. at 2065," }, { "docid": "3323041", "title": "", "text": "v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Prior use under § 102(b) includes any use of the claimed invention by a person other than the inventor who is under no limitation, restriction or obligation of secrecy to the inventor. Netscape Communications Corp. v. Konrad, 295 F.3d 1315, 1320 (Fed.Cir.2002). Whether a patent is invalid due to a § 102(b) public use is a question of law based on underlying questions of fact. Id. Our standards for reviewing a district court's finding of § 102(b) prior sale are similar: \"In order to invalidate a patent under the on-sale bar of 35 U.S.C. § 102(b), an accused infringer must demonstrate by clear and convincing evidence that there was a definite sale or offer to sell more than one year before the application.\" 3M v. Chemque, Inc., 303 F.3d 1294, 1301 (Fed.Cir.2002). \"A determination that a product was placed on sale prior to the critical date is a conclusion of law based on underlying findings of fact. We review the ultimate determination de novo, and the underlying factual findings for clear error.\" Linear Tech. Corp. v. Micrel, Inc., 275 F.3d 1040, 1047 (Fed.Cir.2001). Taken together, then, we must review the district court's summary judgment of invalidity and unenforceability by considering whether the facts, viewed in the light most favorable to ConAgra, nevertheless provide clear and convincing evidence of either (or both) prior use or prior sale. See Linear Tech., 275 F.3d at 1047; Liquid Dynamics, 355 F.3d at 1367. The district court also entered judgment against ConAgra after the jury found antitrust liability on Unitherm's Walker Process claim. We apply Federal Circuit law to all antitrust claims premised on the bringing of a patent infringement suit. Nobelpharma AB v. Implant Innovations, 141 F.3d 1059, 1068 (Fed.Cir.1998) (en banc in relevant part). Whether a patentee's conduct in procuring or enforcing a patent is sufficient to strip its immunity from the antitrust laws is therefore a legal question that we review de novo under Federal Circuit law. Id. We apply the law of the regional circuit, in" }, { "docid": "14461284", "title": "", "text": "had not waived privilege and that the privileged information was not “vital to [Jer-gens’] defense.” Id. at 15-16. Having thus granted summary judgment to Q-Pharma and denied Jergens’ discovery-related motions, the court dismissed Jergens’ antitrust counterclaim. Jergens timely appealed to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1). DISCUSSION In deciding issues not unique to our exclusive jurisdiction, we apply the law of the regional circuit in which the district court sits. See Midwest Indus., Inc. v. Karavan Trailers Inc., 175 F.3d 1356, 1359 (Fed.Cir.1999) (en banc in relevant part). We therefore apply the law of the Ninth Circuit to the question of sanctions under Rule 11. See Antonious v. Spalding & Evenflo Cos., 275 F.3d 1066, 1072 (Fed.Cir.2002). The Ninth Circuit defines a frivolous claim or pleading for Rule 11 purposes as one that is “legally or factually ‘baseless’ from an objective perspective ... [and made without] a reasonable and competent inquiry.” Christian v. Mattel, Inc., 286 F.3d 1118, 1127 (9th Cir.2002) (citation omitted); see also Townsend v. Holman Consulting Corp., 929 F.2d 1358, 1362 (9th Cir.1990) (en banc). We review a district court’s denial of sanctions under Rule 11 for an abuse of discretion. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990). We apply Federal Circuit law to the issue of attorney fees in patent infringement cases. Special Devices, Inc. v. OEA, Inc., 269 F.3d 1340, 1343 (Fed.Cir.2001). We review a denial of attorney fees under 35 U.S.C. § 285 for an abuse of discretion; however, we review the factual determination whether a case is exceptional under § 285 for clear error. Forest Labs., Inc. v. Abbott Labs., 339 F.3d 1324, 1328 (Fed.Cir.2003). When reviewing a district court’s judgment involving federal antitrust law, we generally apply the law of the regional circuit in which the district court sits. Nobelpharma AB v. Implant Innovations, Inc., 141 F.3d 1059, 1067 (Fed.Cir.1998) (en banc in relevant part). However, “whether conduct in procuring or enforcing a patent is sufficient to strip a patentee of its immunity from the antitrust laws" }, { "docid": "9352464", "title": "", "text": "a case is transferred, most eases hold that it is the court of appeals covering the transferee court rather than the one covering the transferor court. FMC Corp. v. Glouster Engineering Co., 830 F.2d 770, 771 (7th Cir.1987), cert. dismissed, 486 U.S. 1063, 108 S.Ct. 2838, 100 L.Ed.2d 937 (1988). The Seventh Circuit is the proper court for an appeal because the Ninth Circuit has no jurisdiction over the case until this court retransfers, if appropriate, the case there. Manual for Complex Litigation, Second, § 31.121; See also FMC Corp., 830 F.2d at 771-72 (1987); Allegheny Airlines, Inc. v. LeMay, 448 F.2d 1341, 1344 (7th Cir.1971) (per curiam), cert. denied, 404 U.S. 1001, 92 S.Ct. 565, 30 L.Ed.2d 553 (1974); In re Corrugated Container Antitrust Litigation, 662 F.2d 875, 880 (D.C.Cir.1981); Preston Corp. v. Raese, 335 F.2d 827, 828 (4th Cir.1964); Astarte Shipping Co. v. Allied Steel & Export Service, 767 F.2d 86 (5th Cir.1985) (per curiam); In re Plumbing Fixture Cases, 298 F.Supp. 484 (J.P.M.D.L.1968). In addition, the District of Columbia Circuit Court has considered the question of which circuit’s federal common law should govern in a case transferred for consolidated pretrial proceedings and has held: The federal courts spread across the country owe respect to each other’s efforts and should strive to avoid conflicts, but each has an obligation to engage independently in reasoned analysis. Binding precedent for all is set only by the Supreme Court, and for the district courts within a circuit, only by the court of appeals for that circuit. Korean Air Lines, 829 F.2d at 1176. The D.C. Circuit Court then went on to state that: [W]e deal here not with an “all-purpose” transfer under 28 U.S.C. § 1404(a), but with a transfer under 28 U.S.C. § 1407 “for coordinated or consolidated pretrial proceedings.” We have held, in accord with the district court, that the law of a transferor forum on a federal question ... merits close consideration, but does not have stare decisis effect in a transferee forum situated in another circuit. Id. The D.C. Circuit’s reasoning in Korean Air Lines is persuasive," }, { "docid": "22211012", "title": "", "text": "Co., 494 U.S. 516, 110 S.Ct. 1274, 108 L.Ed.2d 443 (1990). In Eckstein, Judge Easterbrook recognized that Van Dusen and Ferens arose under the federal courts’ diversity jurisdiction. 8 F.3d at 1127. Nonetheless, he found it appropriate to apply Van Dusen and Ferens “whenever different federal courts use different federal rules.” Id. He stated: [although both of those cases arose under the diversity jurisdiction, their references to Erie v. Tompkins, 304 U.S. 64, [58 S.Ct. 817, 82 L.Ed. 1188] (1938), do not imply a ruling limited to state law. Erie is itself part of national law, interpreting the Rules of Decision Act, 28 U.S.C. § 1652. Id. Because the court interpreted § 27A’s reference to “the jurisdiction” as implying a non-uniform federal law, it concluded that the law of the transferor forum governed. The Second Circuit reached a contrary conclusion in an earlier Securities and Exchange Act ease, Menowitz v. Brown, 991 F.2d 36, 40-41 (2d Cir.1993). Addressing the same issue, the Second Circuit held that when determining “the jurisdiction” under § 27A of the Securities and Exchange Act of 1934, a transferee court should apply the statute of limitations of its circuit and ignore the law of the transferor court. 991 F.2d at 40. The court reasoned that the rule of Van Dusen does not apply when a ease is transferred under § 1407 to a federal court that has a different construction of relevant federal law than the federal court in which the action was filed. Id. The court continued, “[a]pplying Van Dusen by analogy to issues of federal law also runs contrary to the principle that, until the Supreme Court speaks, the federal circuit courts are under duties to arrive at their own determinations of the merits of federal questions presented to them.” Id. In reaching this conclusion, the Second Circuit relied principally on this Circuit’s decision in In re Korean Air Lines Disaster, 829 F.2d 1171 (D.C.Cir.1987), aff'd on other grounds, Chan v. Korean Air Lines, 490 U.S. 122, 109 S.Ct. 1676, 104 L.Ed.2d 113 (1989). In In re Korean Air Lines Disaster, the District of" }, { "docid": "20860703", "title": "", "text": "Co., Inc., 947 F.2d 469, 475 (Fed.Cir.1991). A case “aris[es] under the patent laws” if the complaint establishes that “plaintiffs right to relief necessarily depends on resolution of a substantial question of federal patent law, in that patent law is a necessary element of one of the well-pleaded claims.” Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 809, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988). If a plaintiff presents- a claim “supported by alternative theories in the complaint,” that claim does not depend on patent law and accordingly Federal Circuit precedent is not controlling. Id. at 810,108 S.Ct. 2166. “In other words, an antitrust claim only gives rise to Federal Circuit jurisdiction and only necessitates the application of Federal Circuit law, if ‘patent law is essential to each of [the] theories’ of liability under the antitrust claims alleged in the complaint.” In re Lipitor Antitrust Litigation, Master Docket No. 3:12-cv-2389 (PGS), 2013 WL 4780496, at *14 (D.N.J. Sept. 5, 2013) (quoting Christianson, 486 U.S. at 809, 108 S.Ct. 2166). IV. Disciission a. PhotoMedex Should be Dismissed From this Action i. Improper Service Under Fed,R,Civ.P. 12(b)(5), a . defendant may move to dismiss on the basis that service of process was improper. Fed. R.Civ.P. 12(b)(5),' Without proper service, the court lacks-personal jurisdiction over the defendant. Under New York law, a corporation may be served by personal service on a director, officer, managing or general agent, or cashier or assistant cashier, or any other agent authorized by law to accept service. N.Y. C.P.L.R. § 311(a)(1); Fed.R.Civ.P. 4(e)(1), (h). “New York Courts have consistently held that service of process on one corporation does not confer jurisdiction over another, even where one corporation may wholly own another, or where they may share the same principals.” McKibben v. Credit Lyonnais, No. 98 Civ. 3358 LAP, 1999 WL 604883, at *3 (S.D.N.Y. Aug. 10,1999) (internal quotation and citation omitted). “The standards set in Rule 4(d) for service on individuals and corporations are to be liberally construed, to further the purpose of finding personal jurisdiction in. cases in. which the party has received actual notice.” Grammenos" }, { "docid": "10455199", "title": "", "text": "permanent destruction of bone and tissue within the jaw. Those who allegedly marketed the implants to physicians and Plaintiffs included Vitek, Inc., which sold the implants containing Teflon®, and Dow Coming and its subsidiary Dow Corning Wright, which sold implants containing silicone compounds. Plaintiffs do not assert that Dow Chemical or Corning ever sold TMJ implants. Nevertheless, several of the Complaints allege liability against Dow Chemical and Corning through both corporate control claims and direct liability. Plaintiffs argue that genuine issues of material fact exist as to whether Dow Chemical should be held liable under a variety of theories, including fraud, aiding and abetting tortious conduct, coconspiracy, concert of action, a trademark licensors theory, negligent performance of an undertaking, state consumer protection laws, and participation theory. III. DISCUSSION A transferee court has authority to enter dispositive orders terminating cases transferred under 28 U.S.C. § 1407. In re Donald J. Trump Casino Sec. Litig., 7 F.3d 357, 364-68 (3rd Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 1219, 127 L.Ed.2d 565 (1994). In analyzing questions of federal law, the transferee court should give “close consideration” to the law of the transferor court, but should apply the law as it has been interpreted by the transferee circuit court. In re Korean Air Lines Disaster, 829 F.2d 1171, 1176 (D.C.Cir.1987). For issues governed by state law, the transferee court must apply the state law that would have been applied if the case had not been transferred. Id. at 1175 (“Our system contemplates differences between different states’ laws; thus a multidistrict judge asked to apply divergent state positions on a point of law would face a coherent, if sometimes difficult, task.”); see Van Dusen v. Barrack, 376 U.S. 612, 639, 84 S.Ct. 805, 821, 11 L.Ed.2d 945 (1964). Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Unigroup, Inc. v. O’Rourke Storage & Transfer Co., 980 F.2d 1217, 1219-20 (8th Cir.1992)." }, { "docid": "16055911", "title": "", "text": "based its determination on four grounds. First, the Court determined that prior federal courts had based their decision on an inapplicable Supreme Court opinion involving state choice-of-law issues rather than federal choice-of-law issues. Id. at 1173-1175. Second, the Court found that “[ajpplying divergent interpretations of the governing federal law to plaintiffs, depending solely upon where they initially filed suit, would surely reduce the efficiencies achievable through consolidated preparatory proceedings.” Id. at 1175. Third, the Court determined that it would be “inherently self-contradictory” and “logically inconsistent to require one judge to apply simultaneously different and conflicting interpretations of what is supposed to be a unitary federal law.” Id. at 1175-76. Finally, the Court explained that “ ‘[i]f ... more than one interpretation of federal law exists, the Supreme Court of the United States can finally determine the issue and restore uniformity in the federal system.’ ” Id. at 1176 (quoting In re Korean Air Line Disaster of Sept. 1, 1983, 664 F.Supp. 1488, 1489 (D.D.C. 1987)). Following the D.C. Circuit’s decision, circuit and district courts, including the Ninth Circuit, have uniformly applied the law of the transferee circuit in MDL proceedings involving federal law. See, e.g., Newton v. Thomason, 22 F.3d 1455, 1460 (9th Cir.1994); Temporomandibular Joint (TMJ) Implant Recipients v. E.I. Du Pont de Nemours & Co., 97 F.3d 1050, 1055 (8th Cir.1996); Murphy v. F.D.I.C., 208 F.3d 959, 964-65 (11th Cir.2000); Bradley v. United States, 161 F.3d 777, 782 n. 4 (4th Cir.1998); Menowitz v. Brown, 991 F.2d 36, 40-41 (2d Cir.1993); Eckstein v. Balcor Film Investors, 8 F.3d 1121, 1126 (7th Cir.1993). See also In re Methyl Tertiary Butyl Ether (“MTBE”) Prods. Liab. Litig., 2005 WL 106936 at *4 n. 37 (S.D.N.Y. Jan.18, 2005) (listing examples of district court opinions holding that questions of federal law are governed by the law of the transferee circuit). For example, in Newton the Ninth Circuit held that “when reviewing federal claims, a transferee court in this circuit is bound only by our circuit’s precedent.” 22 F.3d at 1460. The Court follows the approach mandated by Newton and Korean Air Lines Disaster," }, { "docid": "23373486", "title": "", "text": "warnings were inadequate and that no lesser sanctions were considered before the court dismissed the case. Before we attend to the merits of Aura Lamp’s appeal, we must address a question raised by ITC at oral argument. A. The United States Court of Appeals for the Federal Circuit has exclusive jurisdiction over certain appeals, including those cases where the jurisdiction of the district court is based, in whole or in part, on 28 U.S.C. § 1338(a). See 28 U.S.C. § 1295(a)(1); Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 807, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988); Unique Concepts, Inc. v. Manuel, 930 F.2d 573, 574 (7th Cir.1991). Section 1338 grants original jurisdiction to the district courts over any civil actions arising under the federal patent laws, among other things. Unique Concepts, 930 F.2d at 574. To determine whether the district court’s jurisdiction is based on section 1338, we must “apply the well-pleaded complaint rule: if the plaintiff must succeed on a question of patent law in order to prevail, then jurisdiction is founded on § 1338, and if not, not.” Id. In addition to five counts alleging breach of contract, Aura Lamp’s complaint contains a claim for patent invalidity. R. 1, ¶¶ 69-76. Thus, the jurisdiction of the district court was based, at least in part, on the patent laws and jurisdiction over the appeal lies exclusively with the Federal Circuit. This is true even though the district court resolved the case without reference to patent law. Recall the court dismissed the case for want of prosecution. We have held that “[i]f the district court’s jurisdiction rests on a patent claim, then an appeal from an entirely non-patent disposition goes to the federal circuit.” In re BBC Int’l, Ltd., 99 F.3d 811, 813 (7th Cir.1996). See also Kennedy v. Wright, 851 F.2d 963, 968-69 (7th Cir.1988) (jurisdiction under the patent laws in the district court is a necessary and sufficient condition of the Federal Circuit’s appellate jurisdiction). Having determined that the Federal Circuit has jurisdiction over the appeal and that we necessarily lack jurisdiction, we are left with" }, { "docid": "8355590", "title": "", "text": "that, in federal question cases consolidated under § 1407, the law of the transferor court warrants “close consideration” but does not bind the transferee court. Id. at 1176; see also, e.g., Menowitz v. Brown, 991 F.2d 36, 41 (2d Cir.1993); In re Temporomandibular Joint Implants Prods. Liab. Litig., 97 F.3d 1050, 1055 (8th Cir.1996). Although the Seventh Circuit has yet to decide which law governs federal claims in cases transferred under 28 U.S.C. § 1407, it has adopted the rationale of Korean Air when resolving the question under 28 U.S.C. § 1404(a), which authorizes district courts to transfer cases for reasons of convenience. See McMasters v. U.S., 260 F.3d 814, 819 (7th Cir.2001); Eckstein v. Balcor Film Investors, 8 F.3d 1121, 1126 (7th Cir.1993), cert. denied, 510 U.S. 1073, 114 S.Ct. 883, 127 L.Ed.2d 78 (1994). Under § 1404(a), a transferee court in the Seventh Circuit is “free to decide [federal claims] in the manner it views as correct without deferring to the interpretation of the transferor circuit.” McMasters v. U.S., 260 F.3d at 819 (quoting Korean Air, 829 F.2d at 1174). This is because, in contrast to the multifarious and localized nature of state laws, “[a] single federal law implies a national interpretation .... [E]ach court of appeals considers the [federal] question independently ... without regard to the geographic location of the events giving rise to the litigation.” Eckstein, 8 F.3d at 1126. The law of the transferor forum is only applied when the federal law in question is intend ed to be geographically non-uniform. Id. at 1127. Because the Sherman Act is intended to apply uniformly throughout the territorial United States, it does not trigger this exception. Taking its cue from the foregoing cases, this Court holds that Seventh Circuit law applies to the present multidistrict litigation. II. Statute of Limitations Before proceeding to the merits of Defendants’ motions, the Court must address their assertion that all Sherman Act claims fail due to the expiration of the statute of limitations. Antitrust claims are subject to a four-year statute of limitations period. 15 U.S.C. § 15b. Generally, an antitrust" } ]

[ { "docid": "18744927", "title": "", "text": "a case involving a contract to split fees in violation of the bankruptcy rules is apposite here: “what is struck at in the refusal to enforce contracts of this kind is not only actual evil results but their tendency to evil in other cases.” 312 U.S. at 268 (citations omitted). 3. An attorney should not place himself in a position where he may be required to choose between conflicting duties. Woods v. City National Bank, 312 U.S. 262, 61 S.Ct. 493, 85 L.Ed. 820 (1940); In re Westmoreland, 270 F.Supp. 408 (D.Ga.1987); In re Buder, 358 Mo. 796, 217 S.W.2d 563 (Mo.1949); Gillette v. Newhouse Realty Co., 75 Utah 13, 282 P. 776 (Utah 1929). 4. In Newhouse Realty Co., the court stated: The rule that an attorney may not by his contract of employment place himself in a position where his own interests or the interest of another, whom he represents, conflict with the interests of his client, is founded upon principles of public policy. It is designed to serve various purposes, among them, to prevent the dishonest practitioner from fraudulent conduct, to preclude the honest practitioner from putting himself in a position where he may be required to choose between conflicting duties or between his own interests and those of his client, to remove from the attorney any temptation which may tend to cause him to deviate from his duty of enforcing to the full extent the right of this client, to further the orderly administration of justice, and to foster respect for the profession and the courts. 282 P. at 779. 5. In the present case, the Applicant while purporting to serve as attorney for Debtor, received compensation for services rendered to Debtor from Hawaiian Improvement Corporation a corporation controlled by Mr. Shasteen, a general partner of Debtor and an apparent owner of Shasteen, Inc., a creditor of Debtor. 6. The Court finds that when Applicant agreed to receive and did receive compensation from a corporation controlled by an individual who was both a general partner of Debtor and owner of a corporation which was a creditor" } ]

[ { "docid": "13290409", "title": "", "text": "OPINION EMIL F. GOLDHABER, Bankruptcy Judge: The question in the matter at bench is whether we should grant the request of former counsel to the trustee for fees and expenses in light of the applicant’s removal from the case because of conflict of interest. For the reasons stated herein we will deny the allowance of fees but grant the request for expenses. The facts of this case are as follows: The Philadelphia Athletic Club, Inc. (“the debtor”) filed a petition for reorganization under chapter 11 of the Bankruptcy Code (“the Code”) on August 18,1980, and shortly thereafter a trustee was appointed. The trustee then sought the appointment of Melvin Lashner, Esq. (“Lashner”) as his counsel. The application was opposed by the debtor on the ground that Lashner’s appointment would create a conflict of interest. Concluding that the objection was without merit, we granted the application. On appeal, however, the district court reversed us, finding that a conflict existed. From the time of his appointment (on October 27, 1981) until the reversal by the district court (on May 23, 1982), Lashner served as counsel to the trustee and he has applied for the allowance of compensation and reimbursement of costs. The debtor, once again, objects. We commence our discussion with Woods v. City National Bank and Trust Co. of Chicago, 312 U.S. 262, 61 S.Ct. 493, 85 L.Ed. 820 (1941), in which an indenture trustee, a bondholders’ committee and the committee’s counsel sought compensation in a chapter X proceeding under the former bankruptcy statute, the Bankruptcy Act of 1898 (“the Act”). The United States Supreme Court reversed the Court of Appeals for the Seventh Circuit and affirmed the district court’s denial of compensation on the basis of a conflict of interest. The essence of the Woods opinion holds that: Under Ch. X of the Chandler Act the bankruptcy court has plenary power to review all fees and expenses in connection with the reorganization from whatever source they may be payable. Reasonable compensation for services rendered may be allowed. The claimant, however, has the burden of proving their worth. Furthermore, “reasonable compensation" }, { "docid": "15204650", "title": "", "text": "to deny fees. Gray, 30 F.3d at 1324 (“The permissive ‘may deny’ language [of § 328(c) ] does not require the court to deny legal fees or disgorge previously paid fees in all cases.”); Electro-Wire Prods., Inc. v. Sirote & Permutt, P.C. (In re Prince), 40 F.3d 356, 359 (11th Cir.1994) (“[T]he language of 11 U.S.C. § 328(e) permits a court to deny compensation to professionals found not to be disinterested persons, but does not require a denial of fees in those instances.”); Rome, 19 F.3d at 62 (declining to adopt a “per se or brightline rule invariably requiring denial of all compensation under section 328(c).”). Courts which have disallowed fees or ordered their return have done so in the wake of egregious conduct on the part of the applicant, including failures to disclose or irredeemable conflicts. Woods v. City Nat’l Bank & Trust Co., 312 U.S. 262, 268, 61 S.Ct. 493, 85 L.Ed. 820 (1941) (“Where a claimant ... was subject to conflicting interests, he should be denied compensation.”); Rome, 19 F.3d 54 at 60 (holding that attorney’s “failure to make full and spontaneous disclosure ... provided sufficient ground for the discretionary denial of compensation under section 328(e).”); In re Prince, 40 F.3d at 361 (denying compensation because “firm operated under intolerable conflicts of interest----”); Smith v. Marshall (In re Hot Tin Roof, Inc.), 205 B.R. 1000, 1003 (1st Cir. BAP 1997) (“Where the professional maintains any connections proscribed by § 327(a) and does not disclose those connections, the attorney should expect nothing more than the denial of compensation requested and disgorgement of fees received.”). We agree with the bankruptcy court that Pruss’ conduct constitutes a serious breach of her ethical and professional obligations, as well as her duty to remain a disinterested person under the Bankruptcy Code. By purchasing the debtor’s former household with funds advanced by the debtor and entering into the subsequent trust agreement, Pruss created landlord-tenant and trustee-beneficiary relationships with her client. In this regard, we do not disturb the findings of the bankruptcy court or disagree with its legal conclusions. Notwithstanding the severity of" }, { "docid": "1274468", "title": "", "text": "a person who was both the debtor’s general partner and the owner of a corporate creditor of the debtor. The court considered the attorney’s conflict and § 328(c), and denied the attorney’s request for compensation. The court also required the attorney to refund fees he had already received. This Court is aware that some courts have allowed attorney fees, notwithstanding the attorney’s conflict. Fees were not completely denied to an attorney who applied for appointment in good faith, believing he was disinterested and without conflict. In re Pacific Express, Inc., 56 B.R. 859 (Bkrtcy.E.D.Cal.1985). In this case, the attorney withdrew his application after facts indicated a conflict may exist. An attorney is not appointed in a bankruptcy ease until the court determines that the attorney has no adverse interest. The Court’s determination is based on the employment application and the attorney’s affidavit. If the attorney has an undisclosed adverse interest, the court may deny him all compensation. It is the attorney’s duty to reveal any connection, whether or not he believes it to be adverse. Even if the attorney inadvertently fails to disclose, he serves without compensation. In re Costal Equities, Inc., 39 B.R. 304 (Bkrtcy. S.D.Calif.1984). It is undisputed that Ms. Isaak never formally disclosed her connection with IFC and FPCAID, that she was not a disinterested person according to § 327, and that she held interest adverse to the estate of FPCAID. Ms. Isaak, in fact, asserted a claim against IFC for fees she allegedly earned in conjunction with the Demetree sale during the pendency of the Chapter 11 case of IFC. She, in fact, filed a claim in that case, asserting that she was entitled to a lien on the proceeds from the Demetree sale. Ms. Isaak was counsel of record for IFC in the suit filed against it by the Cura-dor to set aside the transfers of all FPCAID real estate holdings through several intermediary entities and ultimately to IFC. She represented IFC throughout that litigation, and also on appeal. Considering the totality of the undisputed evidence in this record, it is clear that Ms. Isaak" }, { "docid": "12172274", "title": "", "text": "as suggested by the district court, but rather enhances the conflict. See Advisory Note to Rule 215(c) (“if there is a question as to the validity or amount of a general creditor’s claim, his attorney would be subject to a disqualifying interest”). Because an actual conflict of interest existed, Baggott’s application for compensation should have been denied. See Woods v. City National Bank & Trust, 312 U.S. 262, 269, 61 S.Ct. 493, 497, 85 L.Ed. 820 (1941): [T]he incidence of a particular conflict of interest can seldom be measured with any degree of certainty. The bankruptcy court need not speculate as to whether the result of the conflict was to delay action where speed was essential, to close the record of past transactions where publicity and investigation were needed, to compromise claims by inattention where vigilant assertion was necessary, or otherwise to dilute the undivided loyalty owed to those whom the claimant purported to represent. Where an actual conflict of interest exists, no more need be shown in this type of case to support a denial of compensation. Accordingly, even had Baggott been able to sustain its burden to demonstrate the propriety of the nunc pro tunc appointment, an issue on which this court expresses no conclusion, the compensation would be denied as a result of the conflict of interest. Consistent with this analysis, the district court award of fees from the estate is reversed. . Baggott clients: In re Georgetown, Debtor Imperial (Gagel, President) — unsecured creditor Gagel personally — unsecured creditor G.W.F. (Gagel partnership) — a partial owner of Georgetown Georgetown — debtor In re G.W.F., Debtor Gagel personally — petitioning creditor G.W.F. (Gagel partnership) — debtor Gagel — a partial owner of G.W.F. . The third partner in G.W.F., Williams, had since died and his estate had assigned its interests to Frey. . 11 U.S.C. § 329(a) provides as follows: § 329. Debtor’s transactions with attorneys (a) Any attorney representing a debtor in a case under this title, or in connection with such a case, whether or not such attorney applies for compensation under this title, shall" }, { "docid": "23146131", "title": "", "text": "with the Supreme Court’s authoritative pronouncement in Woods v. City Nat. Bank & Trust Co. of Chicago, a 1941 reorganization case under Chapter X of the Chandler Act. Claims for compensation filed by an indenture trustee, a bondholders committee, and counsel representing them both, were all disallowed. With particular reference to the role of counsel, the Court commented that: Where a claimant ... was serving more than one master or was subject to conflicting interests, he should be denied compensation. It is no answer to say that fraud or unfairness were not shown to have resulted. Woods sanctions broad latitude in a bankruptcy court’s analysis of the conflict of interest question, made necessary by its mercurial nature: (T)he incidence of a particular conflict of interest can seldom be measured with any degree of certainty. The bankruptcy court need not speculate as to whether the result of the conflict was to delay action where speed was essential ... Where an actual conflict of interest exists, no more need be shown in this type of case to support a denial of compensation. Although nominally decided on the narrow statutory ground of entitlement to compensation, Woods actually has its genesis in the broadest ethical norms, running as deep as the pre-Biblical injunction to do good and eschew evil. Denial of compensation in the case of a conflict is designed to eradicate “not only evil results but their tendency to evil in other cases” and to “keep the standard of fiduciaries ‘at a level higher than that trodden by the crowd.’ ” As we will see, that mode of thinking runs as an unbroken thread through the fabric of bankruptcy case law. In Re Philadelphia Athletic Club Inc., a Pennsylvania District Court reversed a bankruptcy judge’s appointment of an attorney for the trustee who had previously represented the owners of 50 per cent of a noncorporate entity which in turn owned the corporate debtor. The District Court stretched to reach the point in an appeal from an order that was clearly interlocutory. In a redundancy for the sake of emphasis the court twice noted" }, { "docid": "3654525", "title": "", "text": "must be disinterested and may not hold or represent an interest adverse to the estate. This requirement applies equally to an attorney appointed to represent a debtor in possession. 11 U.S.C. § 1107 (1988); In re Anver Corp., 44 B.R. 615, 618-20 (Bankr.Mass.1984). The standards for the employment of court appointed attorneys are exacting because Congress has determined that strict standards are necessary in light of the unique nature of the bankruptcy process. In re Cropper Co., 35 B.R. 625, 629 (Bankr.M.D.Ga.1983). Thus, the Bankruptcy Code permits denial of an attorney’s compensation for services and reimbursement of expenses if that attorney is not a disinterested person or represents or holds an interest adverse to the interest of the estate with respect to the matter on which such attorney is employed. See 11 U.S.C. § 328(c) (1988). The United States Supreme Court has stated that “[wjhere an actual conflict of interest exists, no more need be shown in this type of case to support a denial of compensation.” Woods v. City Nat’l Bank & Trust Co., 312 U.S. 262, 268, 61 S.Ct. 493, 497, 85 L.Ed. 820 (1941). Notwithstanding the general rule, a review of the relevant case law reveals two approaches taken by courts in response to conflicts on the part of counsel appointed by the court. One approach mandates complete denial of compensation regardless of the intrinsic value of the attorney’s services or the benefit obtained for the estate. In re B.E.T. Genetics, Inc., 35 B.R. 269 (Bankr.E.D.Cal.1983); In re Chou-Chen Chemicals, Inc., 31 B.R. 842 (Bankr.W.D.Ky.1983); In re 765 Assoc., 14 B.R. 449 (Bankr.D.Haw.1981); In re Paine, 14 B.R. 272 (Bankr.W.D.Mich.1981). The other line of cases rooted in the equitable nature of the bankruptcy court holds that the judge should not be bound by a completely inflexible rule requiring denial of all fees in all cases. In re Roberts, 46 B.R. 815 (Bankr.Utah 1985); In re Watson Seafood & Poultry Co., 40 B.R. 436, 440 (Bankr.E.D.N.C.1984). This relaxed standard has been held to be particularly appropriate in corporate reorganization cases. In re New York, N.H. & H.R. Co.," }, { "docid": "18607850", "title": "", "text": "City National Bank and Trust Co., 312 U.S. 262, 61 S.Ct. 493, 85 L.Ed. 820 (1941). The opinion did not cite § 649 of the 1898 Code, and did contain broad language based upon general fiduciary principles: Furthermore, “reasonable compensation for services rendered” necessarily implies loyal and disinterested service in the interest of those for whom the claimant purported to act. American United Mutual Life Ins. Co. v. City of Avon Park, 311 U.S. 138, 61 S.Ct. 157, 85 L.Ed. 91. Where a claimant, who represented members of the investing public, was serving more than one master or was subject to conflicting interests, he should be denied compensation. It is no answer to say that fraud or unfairness were not shown to have resulted. Cf. Jackson v. Smith, 254 U.S. 586, 589, 41 S.Ct. 200, 201-02, 65 L.Ed. 418. The principle enunciated by Chief Justice Taft in a case involving a contract to split fees in violation of the bankruptcy rules, is apposite here: “What is struck at in the refusal to enforce contracts of this kind is not only actual evil results but their tendency to evil in other cases.” Weil v. Neary, 278 U.S. 160, 173, 49 S.Ct. 144, 149, 73 L.Ed. 243. Furthermore, the incidence of a particular conflict of interest can seldom be measured with any degree of certainty. The bankruptcy court need not speculate as to whether the result of the conflict was to delay action where speed was essential, to close the record of past transactions where publicity and investigation were needed, to compromise claims by inattention where vigilant assertion was necessary, or otherwise to dilute the undivided loyalty owed to those whom the claimant purported to represent. Where an actual conflict of interest exists, no more need be shown in this type of case to support a denial of compensation. Id. 312 U.S. at 268, 61 S.Ct. at 497. The trustee also relied on Wolf v. Weinstein, 372 U.S. 633, 83 S.Ct. 969, 10 L.Ed.2d 33 (1963). Wolf involved individuals trading in the debtor’s stock after they entered upon their fiduciary duties, and" }, { "docid": "22881008", "title": "", "text": "Court the authority to disallow fees where a professional is found to not have been disinterested. 11 U.S.C. section 327 (1982). It has also been shown that the case law supports the result. See, e.g., In re Chou-Chen Chemicals, 31 B.R. 842 (Bankr.W.D.Ky.1983). The only question therefore is whether fees are to be disallowed in their entirety, or only in part. The seminal case regarding conflicts of interest in bankruptcy cases is Woods v. City National Bank and Trust Co., 312 U.S. 262, 61 S.Ct. 493, 85 L.Ed. 820 (1941). This case affirmed the decision of a district court which disallowed compensation to an attorney for a Chapter X debtor because the applicants were serving conflicting interests. In Woods, the court held that “reasonable” compensation “necessarily implies loyal and disinterested service in the interest of those for whom the claimant purported to act.” Id. at 268, 61 S.Ct. at 497. A narrow interpretation of this case might indicate that attorney fees should be disallowed in total upon the finding of a conflict. This conclusion is reached from the Supreme Court’s frequently cited conclusion that “where an actual conflict of interest exists, no more need be shown in this type of case to support a denial of compensation.” Id. at 266, 61 S.Ct. at 496. Other courts do not maintain this strict standard. For example, in Berner v. Equitable Office Building Corp., 175 F.2d 218 (2d Cir.1949), the court held that the penalty for the conflict of interest ought to be in proportion to the gravity of the breach, rather than the entire fee. Id., at 222. In re Martin, 817 F.2d 175 (1st Cir.1987); In re GHR Energy Corp., 60 B.R. 52 (Bankr.S.D.Tex.1985); In re O’Connor, 52 B.R. 892 (Bankr.W.D.Okla.1985); In re Roberts, 46 B.R. 815 (Bankr.N.D.Ga.1985). Other courts suggest a type of balancing test which would compare the attorneys misconduct with the equities of the case. Watson Seafood, 40 B.R. at 440. This case held that “all fees are denied when a conflict is present, but the court should have the ability to deviate from that rule in those" }, { "docid": "22881007", "title": "", "text": "case, the Court has no choice but to hold that Locke Purnell’s fees do not survive one of the special heed Johnson factors, that of benefit to the estate. Further, the requirements of section 330 of the Code requiring compensation only for value of services provided have not been met. Reduction of fees is appropriate under this standard. VI. DISCUSSION OF THE LAW REGARDING FEE ALLOWANCE TO COUNSEL HOLDING A CONFLICT OF INTEREST Having reached the conclusion that Locke Purnell had a conflict of interest in its representation of the Debtors, the Court must take appropriate action. In particular, the Court must consider the various cases which suggest methods for dealing with a conflict of interest in a bankruptcy case. The conclusion is that Locke Pur-nell’s fees must be reduced. It might be noted that the discussion in this section of the opinion applies only to a fee reduction for conflicts of interest. Any possible reduction of fees for other claims is considered hereafter. It has already been noted that the Bankruptcy Code gives the Court the authority to disallow fees where a professional is found to not have been disinterested. 11 U.S.C. section 327 (1982). It has also been shown that the case law supports the result. See, e.g., In re Chou-Chen Chemicals, 31 B.R. 842 (Bankr.W.D.Ky.1983). The only question therefore is whether fees are to be disallowed in their entirety, or only in part. The seminal case regarding conflicts of interest in bankruptcy cases is Woods v. City National Bank and Trust Co., 312 U.S. 262, 61 S.Ct. 493, 85 L.Ed. 820 (1941). This case affirmed the decision of a district court which disallowed compensation to an attorney for a Chapter X debtor because the applicants were serving conflicting interests. In Woods, the court held that “reasonable” compensation “necessarily implies loyal and disinterested service in the interest of those for whom the claimant purported to act.” Id. at 268, 61 S.Ct. at 497. A narrow interpretation of this case might indicate that attorney fees should be disallowed in total upon the finding of a conflict. This conclusion is" }, { "docid": "18732022", "title": "", "text": "succinctly, “when an actual conflict of interest exists, no more need be shown .. . to support a denial of compensation.” Woods v. City Nat Bank & Trust, 312 U.S. 262, 268, 61 S.Ct. 493, 497, 85 L.Ed. 820 (1941). One Court has explained that the policy behind the “fee penalty” is that of preventing the dishonest practitioner from [engaging in] fraudulent conduct, to preclude the honest practitioner from putting himself in a position where he may be required to choose between conflicting duties. .. Gillette v. Newhouse Realty Co., 75 Utah 13, 282 P. 776, 779 (1929). In other words, the penalty serves a prophylactic purpose. It strikes not only at actual evil, but at the tendency of divided loyalty to create evil. Weil v. Neary, 278 U.S. 160,173, 49 S.Ct. 144, 149, 73 L.Ed. 243 (1929). The Court’s analysis would not be complete without discussing the strong public interest in compensating bankruptcy attorneys. Proper compensation includes balancing the goal of setting fees high enough to áttract competent members of the bar while doing justice to the debtor and his creditors. Matter of First Colonial Corp. of America, 544 F.2d 1291 (5th Cir. 1977); Ja-cobowitz v. Double Seven Corporation, 378 F.2d 405 (9th Cir. 1967). The Court fails to see, however, how the goal of attracting competent attorneys is harmed by refusing to compensate attorneys whose services were subject to conflicting interests. Indeed the denial of fees in such circumstances can only further aid the effort of attracting and maintaining a competent bankruptcy bar. The Court also notes that, under similar circumstances, the Supreme Court and numerous lower courts have expressed a strong federal policy against attorneys representing conflicting interests. See, e. g.; Woods v. City Nat. Bank & Trust Co., 312 U.S. 262, 61 S.Ct. 493, 85 L.Ed. 820 (1941); Weil v. Neary, 278 U.S. 160,49 S.Ct. 144, 73 L.Ed. 243 (1929); Silbiger v. Prudence Bonds Corporation, 180 F.2d 917 (2nd Cir. 1959); Crites Inc. v. Prudential Ins. Co., 134 F.2d 925 (6th Cir. 1943); Gesellschaft Fur Drahtlose Telegraphic M.B.H. v. Brown, 78 F.2d 410 (D.C. Cir. 1935);" }, { "docid": "1274467", "title": "", "text": "during -the employment, that professional person held an interest adverse to the estate and was not disinterested as required by § 327 of the Bankruptcy Code. The seminal conflict of interest case is Woods v. City Nat’l Trust Co. of Chicago, 312 U.S. 262, 61 S.Ct. 493, 85 L.Ed. 820 (1941), which involved an indentured trustee, bondholders’ committee, and the committee’s counsel requesting compensation. The Court noted that the bankruptcy court has the power to review all applications for fees and expenses. While “reasonable” compensation may be allowed, reasonable implies loyal, disinterested service, and compensation should be denied a claimant who serves more than one master. Denying compensation when conflicts exist eliminates actual evil results, and the potential for evil in other cases. It makes no difference whether fraud or unfairness actually resulted. Where there is an actual conflict of interest, no more need be shown to support a denial of compensation. In re 765 Associates, 14 B.R. 449 (Bkrtcy. Hawaii 1981), the debtor’s attorney had received compensation from a corporation which was controlled by a person who was both the debtor’s general partner and the owner of a corporate creditor of the debtor. The court considered the attorney’s conflict and § 328(c), and denied the attorney’s request for compensation. The court also required the attorney to refund fees he had already received. This Court is aware that some courts have allowed attorney fees, notwithstanding the attorney’s conflict. Fees were not completely denied to an attorney who applied for appointment in good faith, believing he was disinterested and without conflict. In re Pacific Express, Inc., 56 B.R. 859 (Bkrtcy.E.D.Cal.1985). In this case, the attorney withdrew his application after facts indicated a conflict may exist. An attorney is not appointed in a bankruptcy ease until the court determines that the attorney has no adverse interest. The Court’s determination is based on the employment application and the attorney’s affidavit. If the attorney has an undisclosed adverse interest, the court may deny him all compensation. It is the attorney’s duty to reveal any connection, whether or not he believes it to be adverse." }, { "docid": "15065078", "title": "", "text": "States v. McClain, 593 F.2d 658, 664-65 (5th Cir.), cert. denied, 444 U.S. 918, 100 S.Ct. 234, 62 L.Ed.2d 173 (1979). . Such conduct is a violation of ethical obligations as well. Disciplinary Rule 1-102(A)(4) states that misconduct occurs where counsel engages \"in conduct involving dishonesty, fraud, deceit, or misrepresentation.” ABA Code of Prof. Resp., DR 1-102(A)(4). . We need not decide here whether an immaterial misrepresentation warrants denial of all compensation. The misrepresentations allegedly made here, if proven, were clearly material both in relation to the size of fees sought and the size of the fees ultimately awarded. . In Weil v. Neary, 278 U.S. 160, 49 S.Ct. 144, 73 L.Ed. 243 (1928), attorneys for the trustees in bankruptcy entered into a fee-sharing contract with attorneys for the creditors. Id. at 167-71, 49 S.Ct. at 147-49. The court held that even in the \"absence of any finding or showing of actual fraud,” the contract was illegal and unenforceable. Id. at 173, 49 S.Ct. at 149. Again, in Woods v. City Bank Co., 312 U.S. 262, 61 S.Ct. 493, 85 L.Ed. 820 (1940), both counsel and the trustee were subject to conflicting interests. The court held that “ 'reasonable compensation for services rendered’ necessarily implies loyal and disinterested service” and \"[w]here a claimant ... was serving more than one master ... he should be denied compensation” even though no \"fraud” was shown. Weil and Woods both indicate that where fraud is shown, all compensation should be denied. . The court also found that counsels' actions violated then Bankruptcy Rules 215 and 219— providing another basis for denial of compensation. Id. at 468-70. . An important issue in fee application cases is the twelve factors a judge should consider when awarding compensation enunciated in Johnson v. Georgia Highway Express, 488 F.2d 714 (5th Cir.1974). Wooten asks us to overrule Johnson. We decline Wooten’s invitation and, of course, are powerless to reverse a prior panel's opinion absent supervening statute or Supreme Court decision. Affholder Inc. v. Southern Rock Inc., 746 F.2d 305, 311 (5th Cir.1984). While the Supreme Court noted in Hensley" }, { "docid": "13290410", "title": "", "text": "(on May 23, 1982), Lashner served as counsel to the trustee and he has applied for the allowance of compensation and reimbursement of costs. The debtor, once again, objects. We commence our discussion with Woods v. City National Bank and Trust Co. of Chicago, 312 U.S. 262, 61 S.Ct. 493, 85 L.Ed. 820 (1941), in which an indenture trustee, a bondholders’ committee and the committee’s counsel sought compensation in a chapter X proceeding under the former bankruptcy statute, the Bankruptcy Act of 1898 (“the Act”). The United States Supreme Court reversed the Court of Appeals for the Seventh Circuit and affirmed the district court’s denial of compensation on the basis of a conflict of interest. The essence of the Woods opinion holds that: Under Ch. X of the Chandler Act the bankruptcy court has plenary power to review all fees and expenses in connection with the reorganization from whatever source they may be payable. Reasonable compensation for services rendered may be allowed. The claimant, however, has the burden of proving their worth. Furthermore, “reasonable compensation for services rendered” necessarily implies loyal and disinterested service in the interest of those for whom the claimant purported to act. American United Mutual Life Ins. Co. v. City of Avon Park, 311 U.S. 138 [61 S.Ct. 157, 85 L.Ed. 91], Where a claimant, who represented members of the investing public, was serving more than one master or was subject to. conflicting interests, he should be denied compensation. It is no answer to say that fraud or unfairness were not shown to have resulted. Cf. Jackson v. Smith, 254 U.S. 586, 589 [41 S.Ct. 200, 201, 65 L.Ed. 418]. The principle enunciated by Chief Justice Taft in a ease involving a contract to split fees in violation of the bankruptcy rules, is apposite here: “What is struck at in the refusal to enforce contracts of this kind is not only actual evil results but their tendency to evil in other cases.” Weil v. Neary, 278 U.S. 160, 173 [49 S.Ct. 144, 149, 73 L.Ed. 243]. Furthermore, the incidence of a particular conflict of interest can" }, { "docid": "11205711", "title": "", "text": "personal pecuniary interest in Darrah’s claim, beyond the mere professional interest an attorney ordinarily has in his client’s claim. In essence, the arrangement made him a creditor of all the related estates, or so close to one that we think the distinction should make no difference. Furthermore, if he were allowed to be paid for his services out of the Debtors’ estate, his contingent fee from Darrah would pay him a second time for much of the same work. Absent the spontaneous, timely, and complete disclosure required by § 327(a) and Rule 2014, court-approved counsel proceed at their own risk. Rome, 19 F.3d at 59. Where the professional maintains any connections proscribed by § 327(a) and does not disclose those connections, the attorney should expect nothing more than the denial of compensation requested and disgorgement of fees received. See Smith v. Marshall (In re Hot Tin Roof, Inc.), 205 B.R. 1000, 1003 (1st Cir. BAP 1997) and cases cited therein. Winship’s failure to disclose the contingent fee agreement with Darrah provided sufficient ground for the bankruptcy court’s discretionary denial of his compensation under § 328(c). Winship further argues that, even if the bankruptcy court was correct that an actual conflict existed, disgorgement of all fees was not warranted since there was no evidence of harm and that his services provided a significant benefit to the estate. However, we review not the quality of his representation, but his application for employment as it was presented to the bankruptcy court. Interwest, 23 F.3d at 317 (citing In re Martin, 817 F.2d 175, 183 (1st Cir.1987)). “A fiduciary ... may not perfect his claim to compensation by insisting that, although he had conflicting interests, he served his several masters equally well or that his primary loyalty was not weakened by the pull of his secondary one.” Woods v. City Nat’l Bank & Trust Co., 312 U.S. 262, 269, 61 S.Ct. 493, 85 L.Ed. 820 (1941). Where there has been a clear failure to make timely disclosure of all facts material to a potential conflict of interest, counsel appointed pursuant to § 327 can" }, { "docid": "23602138", "title": "", "text": "become actual is remote and the reasons for employing the professional in question are particularly compelling. In these cases, there are assets in the Herman and Berkow estates, which may ultimately be sufficient to pay a dividend to unsecured creditors. Under these circumstances, Ravin, Greenberg and Be-derson have an actual conflict of interest, and they are therefore removed as attorney and accountant for the trustee in the Herman and Berkow cases, but not the BH & P case. • V. A professional who serves conflicting interests in a bankruptcy case may be denied compensation. In the seminal case of Woods v. City Nat. Bank & Trust Co., 312 U.S. 262, 61 S.Ct. 493, 85 L.Ed. 820 (1941) reh’g denied, 312 U.S. 715, 61 S.Ct. 736, 85 L.Ed. 1145 (1941), counsel to the creditors committee in a case under Chapter X of the Bankruptcy Act was also counsel to the indenture trustee. The District Court disallowed the claim of the indenture trustee for the services of its counsel because of the conflict of interest. The Court of Appeals reversed because there was no conspiracy to defraud nor substantial evidence of mismanagement or negligence. The Supreme Court reversed the Court of Appeals. Where a claimant, who represented members of the investing public, was serving more than one master or was subject to conflicting interests, he should be denied compensation. It is no answer to say that fraud or unfairness were not shown to have resulted. Cf. Jackson v. Smith, 254 U.S. 586, 589, 65 L.Ed. 418, 424, 41 S.Ct. 200 [202 1921]. The principle enunciated by Chief Justice Taft in a case involving a contract to split fees in violation of the bankruptcy rules, is apposite here: “What is struck at in the refusal to enforce contracts of this kind is not only actual evil results but their tendency to evil in other cases.” Id., 312 U.S. at 268, 61 S.Ct. at 497. The Court went on to emphasize that where there is an actual conflict of interest, that fact alone is a sufficient basis for the bankruptcy court to deny compensation:" }, { "docid": "8133678", "title": "", "text": "of the foregoing and of the debtor, * * (Emphasis supplied) Sections 241, 242, 243, 11 U.S.C.A. §§ 641, 642 and 643 respectively of the Chandler Act, taken from Section 77B, as amended by the Act of June 7, 1934, 11 U.S.C.A. Section 207, sub. c(9), made no change in the provisions of the latter that the bankruptcy court “may allow a reasonable compensation for the services rendered. * * *” In Woods v. City National Bank & Trust Co., 1941, 312 U.S. 262, 61 S.Ct. 493, 85 L.Ed. 820, the Supreme Court cited Section 221(4) as bearing upon the question of allowance of “reasonable compensation” for services rendered. The Woods case, as did American United Mutual Life Insurance Co. v. City of Avon Park, 1940, 311 U.S. 138, 61 S.Ct. 157, 85 L.Ed. 91, 136 A.L.R. 860, specifically noted the scope of the power of the bankruptcy court in the allowance of compensation and the requirement for “loyal and disinterested service.” Said the Supreme Court in the Woods case (312 U.S. pp. 267, 268, 61 S.Ct. 497): “* * * Under Ch. X of the Chandler Act the bankruptcy court has plenary power to review all fees and expenses in connection with the reorganization from whatever source they may be payable. [Citing in a footnote Section 221(4)]. Reasonable compensation for services rendered may be allowed. The claimant, however, has the burden of proving their worth. Furthermore, ‘reasonable compensation for services rendered’ necessarily implies loyal and disinterested service in the interest of those for whom the claimant purported to act. American United Mut. Life Ins. Co. v. City of Avon Park, 311 U.S. 138, 61 S.Ct. 157, 85 L.Ed. 91 [136 A.L.R. 860], * * * Where a claimant, who represented members of the investing public, was serving more than one master or was subject to conflicting interests, he should be denied compensation. It is no answer to say that fraud or unfairness were not shown to have resulted. * * * Where an actual conflict of interest exists, no more need be shown in this type of case to" }, { "docid": "1274466", "title": "", "text": "attempts to recover books and records of FPCAID from Ms. Manning. Clearly, at the time she became the attorney for FPCAID, she was not a disinterested person and, in fact, she held an interest adverse to that of FPCAID. The difficulty with the case at hand is that Ms. Isaak was authorized by this Court to be employed based on her Affidavit filed in this case. She was counsel of record for FPCAID until April 24, 1987, when this Court entered an Order and granted her Motion to Withdraw as counsel for FPCAID. Thus, whether or not she was eligible to serve as counsel of record for FPCAID is obviously moot as she is no longer acting as attorney for FPCAID. This conclusion, however, does not preclude the consideration of the Curador’s second contention that Ms. Isaak is not entitled to any compensation whatsoever by virtue of § 328(c) of the Bankruptcy Code. This Section authorizes the court to deny compensation for services and reimbursement of expenses of a professional person, if at any time, during -the employment, that professional person held an interest adverse to the estate and was not disinterested as required by § 327 of the Bankruptcy Code. The seminal conflict of interest case is Woods v. City Nat’l Trust Co. of Chicago, 312 U.S. 262, 61 S.Ct. 493, 85 L.Ed. 820 (1941), which involved an indentured trustee, bondholders’ committee, and the committee’s counsel requesting compensation. The Court noted that the bankruptcy court has the power to review all applications for fees and expenses. While “reasonable” compensation may be allowed, reasonable implies loyal, disinterested service, and compensation should be denied a claimant who serves more than one master. Denying compensation when conflicts exist eliminates actual evil results, and the potential for evil in other cases. It makes no difference whether fraud or unfairness actually resulted. Where there is an actual conflict of interest, no more need be shown to support a denial of compensation. In re 765 Associates, 14 B.R. 449 (Bkrtcy. Hawaii 1981), the debtor’s attorney had received compensation from a corporation which was controlled by" }, { "docid": "18607849", "title": "", "text": "under section 327 or 1103 of this title, such professional person is not a disinterested person, or represents or holds an interest adverse to the interest of the estate with respect to the matter on which such professional person is employed. 11 U.S.C. § 328(c) (emphasis added). The successor trustee argues that “public policy and ... the purposes of the Bankruptcy Code” require denial of all fees, including those for services predating English’s acquisition of the creditor’s interest. Opening Brief of Appellant at 11. The trustee relies upon Supreme Court cases written during the period the 1898 Bankruptcy Code was in effect. That Code contained a section that flatly denied all compensation to an attorney “who at any time after assuming to act in [a representative or fiduciary] capacity” has purchased a claim against the debtor. 11 U.S.C. § 649 (repealed 1978). The first of those cases cited by the successor trustee involved conflicts that existed from the outset, and affirmed a district court’s denial of fees but not its disallowance of expenses. Woods v. City National Bank and Trust Co., 312 U.S. 262, 61 S.Ct. 493, 85 L.Ed. 820 (1941). The opinion did not cite § 649 of the 1898 Code, and did contain broad language based upon general fiduciary principles: Furthermore, “reasonable compensation for services rendered” necessarily implies loyal and disinterested service in the interest of those for whom the claimant purported to act. American United Mutual Life Ins. Co. v. City of Avon Park, 311 U.S. 138, 61 S.Ct. 157, 85 L.Ed. 91. Where a claimant, who represented members of the investing public, was serving more than one master or was subject to conflicting interests, he should be denied compensation. It is no answer to say that fraud or unfairness were not shown to have resulted. Cf. Jackson v. Smith, 254 U.S. 586, 589, 41 S.Ct. 200, 201-02, 65 L.Ed. 418. The principle enunciated by Chief Justice Taft in a case involving a contract to split fees in violation of the bankruptcy rules, is apposite here: “What is struck at in the refusal to enforce contracts of" }, { "docid": "12391644", "title": "", "text": "F.2d 863 (D.C.Cir.1984) (outlining analysis required to find unethical conduct lessened value of lawyer’s services to client); In re Watson Seafood & Poultry Co., 40 B.R. 436, 439-40 (Bankr.E.D.N.C.1984) (once conflict of interest is shown, attorney fees should be entirely denied, even though the services rendered had intrinsic value and brought a benefit to the estate). See also In re Global Marine, Inc., 108 B.R. 998, 1004-06 (Bankr.S.D.Tex.1987), appeal dismissed, 108 B.R. 1007 (S.D.Tex.1988) (holding that court may deny 'or reduce fees based on ethical violations, but finding none); In re Ochoa, 74 B.R. 191, 197 (Bankr.N.D.N.Y.1987) (lack of quality representation justified denial of all attorney fees); In re GHR Energy Corp., 60 B.R. 52, 68 (Bankr.S.D.Tex.1985) (based on equities of case court would not deny all attorney fees based solely on technical findings of interest-edness). The Supreme Court addressed the effect of an ethical violation upon the reasonableness of a fee in the bankruptcy context in Woods v. City National Bank & Trust Co., 312 U.S. 262, 61 S.Ct. 493, 85 L.Ed. 820 (1941). “Reasonable compensation for services rendered” necessarily implies loyal and disinterested service in the interest of those for whom the claimant purported to act. Where a claimant, who represented members of the investing public, was serving more than one master or was subject to conflicting interests, he should be denied compensation. It is no answer to say that fraud or unfairness were not shown to have resulted. The principle enunciated by Chief Justice Taft in a case involving a contract to split fees in violation of the bankruptcy rules, is apposite here: “What is struck at in the refusal to enforce contracts of this kind is not only actual evil results but their tendency to evil in other cases.” Furthermore, the incidence of a particular’ conflict of interest can seldom be measured by any degree of certainty. The bankruptcy court need not speculate as to whether the result of the conflict was to delay action where speed was essential, to close the record of past transactions where publicity and investigation were needed, to compromise claims by" }, { "docid": "15065079", "title": "", "text": "262, 61 S.Ct. 493, 85 L.Ed. 820 (1940), both counsel and the trustee were subject to conflicting interests. The court held that “ 'reasonable compensation for services rendered’ necessarily implies loyal and disinterested service” and \"[w]here a claimant ... was serving more than one master ... he should be denied compensation” even though no \"fraud” was shown. Weil and Woods both indicate that where fraud is shown, all compensation should be denied. . The court also found that counsels' actions violated then Bankruptcy Rules 215 and 219— providing another basis for denial of compensation. Id. at 468-70. . An important issue in fee application cases is the twelve factors a judge should consider when awarding compensation enunciated in Johnson v. Georgia Highway Express, 488 F.2d 714 (5th Cir.1974). Wooten asks us to overrule Johnson. We decline Wooten’s invitation and, of course, are powerless to reverse a prior panel's opinion absent supervening statute or Supreme Court decision. Affholder Inc. v. Southern Rock Inc., 746 F.2d 305, 311 (5th Cir.1984). While the Supreme Court noted in Hensley that some factors in Johnson \"are subsumed within the initial calculation of hours reasonably expended at a reasonable hourly rate,” the Court in no way denied the utility of the Johnson analysis. Hensley, 461 U.S. at 434 n. 9, 103 S.Ct. at 1940 n. 9. The Johnson analysis was applied to bankruptcy proceedings in In re First Colonial Corp. of America, 544 F.2d 1291 (5th Cir.), cert. denied, 431 U.S. 904, 97 S.Ct. 1696, 52 L.Ed.2d 388 (1977). . Wooten contends that the detail requirements for fee applications should not be applied retroactively to him. We reject this contention. The bankruptcy rules and case authority regarding fee applications have long been in place. . The trustee in In re Orbit Liquor Store also served as attorney. The trustee claimed his statutory maximum fee and the creditors claimed that much of the work charged to attorney’s fees was duplicative, and trustee work rather than attorney work. The court recognized that a “serious problem\" exists when “one person acts as trustee and attorney and fails to distinguish" } ]

[ { "docid": "23570046", "title": "", "text": "157 F. 49, 51, 84 C. C. A. 553, 555, 15 L. R. A. [N. S.] 1100; Weiss v. Haight & Freese Co. [C. C.] 152 F. 479; American Can Co. v. Williams, 178 F. 420, 423, 101 C. C. A. 634, 637), as trust property, because the legal presumption is that he regarded the law and neither paid out nor invested in other property the trust fund, but kept it sacred (Board of Com’rs v. Patterson [C. C.] 149 F. 229, 232; Spokane County v. First National Bank, 68 F. 979, 16 C. C. A. 81). As the fund upon which the trust is asserted in this ease is the fund of cash and cash items which passed into the hands of the receiver, the question in the case is whether the $8,500 of plaintiff has been traced into that fund; for it is settled that it is not sufficient merely to prove that the trust property went into the general estate and increased the amount and value thereof which came into the hands of the receiver, Empire State Surety Co. v. Carroll County, supra (C. C. A.) 194 F. 593 at page 604, and cases there cited. We think that this question must be answered in the affirmative. The life insurance cheeks were received by the bank as cash and were treated by it as such. They increased the cash and cash items in the tills of the bank at the time. When it placed them to its credit in the Richmond and New York banks, it was dealing with them as its own; and the presumption is that cash which was left in its tills was intended to be subject to the trust. While it had, of course, the right to collect the checks, it had no right to place their proceeds to its credit in other banks without holding an equivalent amount in cash in its own vaults to satisfy the trust which it had assumed towards plaintiff; and we must assume that it respected the trust, as “equity imputes an intention to fulfill an obligation.”" } ]

[ { "docid": "15632765", "title": "", "text": "have been reclaimed. When taken to the clearing house and use“d to offset cheeks drawn on the bank it was still the identifiable property of Key or his vendor 'wrongfully thus used. Had the bank gotten anything in exchange for it, that thing would have been claimable as the proceeds of the trust res. Jefferson Standard Life Ins. Co. v. Wisdom (C. C. A.) 58 F.(2d) 565. But, when irrevocably used to discharge the bank’s obligations to its general depositors, the trust res was dissipated and lost. City Bank of Hopkinsville v. Blaekmore (C. C. A.) 75 F. 771; Beard v. Independent Dist. (C. C. A.) 88 F. 375; First Natl. Bank v. Williams (D. C.) 15 F.(2d) 585; Larabee Flour Mills v. First Natl. Bank (C. C. A.) 13 F.(2d) 330; Nyssa-Arcadia Dist. v. First Natl. Bank (D. C.) 3 F.(2d) 648; Farmers’ Natl. Bank v. Pribble (C. C. A.) 15 F.(2d) 175. Only the personal liability of the trustee remained, and, unless by the aid of a statute, there is for that no preferential lien on the defaulting trustee’s insolvent general estate. Spokane County v. First National Bank (C. C. A.) 68 F. 979; Board of Commissioners v. Strawn (C. C. A.) 157 F. 49, 15 L. R. A. (N. S.) 1100. It may be true I hat, if the trust money had not been used to make the clearance, cash of the bank would have been, so that the use of the trust money in this way preserved to that extent the cash tvhich remained and later went into the receiver’s hands; but this benefit has always been considered too uncertain and elusive to constitute a tracing of the trust. City Bank v. Blackmore (C. C. A.) 75 F. 771; In re Brown (C. C. A.) 193 F. 24; Empire State Surety Co. v. Carroll County (C. C. A.) 194 F. 593; First National Bank v. Williams (D. C.) 15 F.(2d) 585; Farmers’ Natl. Bank v. Pribble (C. C. A.) 15 F.(2d) 175. In Frelinghuysen v. Nugent (C. C.) 36 F. 229, 239, misapplied money used for" }, { "docid": "4339493", "title": "", "text": "it to be paid to an infant without the intervention of a guardian, provided the amount is less than $500 and the infant is of sufficient age and discretion to use the fund judiciously. It is not claimed that the administratrix could have lawfully paid the money directly to the infant in this case, or that even a legally appointed guardian would have had lawful authority to make a permanent deposit of the infant’s money in a bank during her minority; and the right of a fiduciary to make a temporary deposit of trust funds in a bank believed to be in sound condition, pending investment, may not be extended to justify the keeping of funds, which ought to. be invested, longer on deposit than is reasonably necessary. Barney v. Saunders, 16 How. 534, 14 L. Ed. 1047, Corcoran v. Kostrometinoff (C. C. A.) 164 F. 685, 21 L. R. A. (N. S.) 399. Thus the situation presented to the court is that the bank induced the administratrix and the mother to deposit with it the'infant’s money, to remain until she should attain twenty-one years óf age, knowing that the depositor had no authority to make the deposit, but was violating her duty to the child in doing so. These circumstances gave rise, under the settled rule, to a constructive trust, and the bank thereby was charged from the beginning with the obligations of a trustee to safeguard the fund for the benefit of the infant child. Cuttell v. Fluent (C. C. A.) 51 F.(2d) 974; First National Bank of Forsyth, Mont., v. Mdelity & Deposit Co. of Md. (C. C. A.) 48 F. (2d) 585; Allen v. United States (C. C. A.) 285 F. 678; U. S. Natl. Bank v. City of Centrada (C. C. A.) 240 F. 93; Board of Commissioners of Crawford County, Ohio, v. Strawn (C. C. A.) 157 F. 49, 15 L. R. A. (N. S.) 1100. The remaining question concerns the right of the beneficiary to demand the trust fund from the receiver as a prior claim to the other creditors of the insolvent" }, { "docid": "12535110", "title": "", "text": "been drawings from time to time, it has been held, in favor of the cestui que trust, as a presumption of law, that the sums first drawn out were from the moneys which the tort-feasor had a right to expend in his own business, and that the balance which regained included the trust fund, which he had no right to use. In re Hallett’s Estate, 13 Ch. D. 696, 727; Board of Commissioners v. Strawn [157 Fed.] at page 51 [84 C. C. A. 553, 15 L. R. A. (N. S.) 1100]. It is clear, however, in the -first place, that this is a mere presumption, which will not stand against eviclence to the contrary. Board of Commissioners v. Strawn [157 Fed.] at page 51 [84 C. C. A. 553, 15 L. R. A. (N. S.) 1100].” Wbat has been said with respect to the deposit with Coffman, Dob-son & Co. applies equally to the deposit of that portion of the trust money made by the United States National Bank of Centraba with the Bank of California of Tacoma and thereafter withdrawn by the .former bank, the purpose of such withdrawals and where the money .went not being in any way shown by the evidence. The record does .show, however, that such deposit of the United States National Bank ,of Centraba with the Bank of California of Tacoma was not entirely (¡dissipated, but that there remained of such deposit at the time of the suspension of the former the sum of $1,585.36, which passed into the hands of the receiver of its assets, and as to which only the appellee is, in our opinion, entitled to a preference over the general creditors of the insolvent bank. The cause is remanded, with directions to the court below to modify the judgment in accordance with the views above expressed, and, as so modified, it will stand affirmed." }, { "docid": "23582612", "title": "", "text": "Flanders, 87 Wis. 237, 58 N. W. 383. And under such circumstances he is entitled to recover only the lowest balance to the credit of the collecting bank in the batik on which the check was drawn where it was deposited between the date of the deposit and the appointment of the receiver. American Can Co. v. Williams (C. C.) 176 Fed. 816; Board of Commissioners of Crawford Co., Ohio, v. Strawn, 157 Fed. 49, 84 C. C. A. 553, 15 L. R. A. (N. S.) 1100. There is no recognized ground upon which equity can pursue the proceeds of this collection, misapplied by the bankrupt, and impose upon it the character of a trust, except on the theory that the money is still the property of Roedenbeck, and if Roedenbeck is to be permitted to follow the proceeds of the collection of the note, received by the bankrupt upon the collection of the same, and recover it, it is because the property belongs to the petitioner, whether in the form which he parted with its possession or in a substituted form. Under the earlier rule petitioner would have been required to identify it as the very property which he had confided to another. The modern and more equitable doctrine permits the recovery of a trust fund from one not an innocent purchaser, and into any shape into which it may have been transmuted, provided he can establish the fact that it is his property, or the proceeds of his property, or that his property has gone into it and remains in a mass from which it cannpt be distinguished. Spokane County v. First National Bank, supra. This more recent doctrine follows the rule announced in Re Hallett’s Estate (Knatchbull v. Hallett) 13 Ch. Div. 696, which is to the effect that, if money held by one in a fiduciary character has been paid by him to his account at his bank, the person for whom he held the money can follow it and has a charge on the balance in the banker’s hands, and that if the depositor has" }, { "docid": "13238515", "title": "", "text": "¡such situation is here involved. Another ground for such declaration of trust is the receipt of funds to be applied and used for a definitely designated purpose, but which are in fact fraudulently or unlawfully appropriated to other uses. This misapplication constitutes a wrongful act, and makes the recipient a trustee. Smith v. Mottley, 150 F. 266 (C. C. A. 6); Merchants’ National Bank v. School District No. 8, 94 F. 705 (C. C. A. 9); Schumacher v. Harriett, 52 F.(2d) 817 (C. C. A. 4); Davis v. McNair, 48 F.(2d) 494 (C. C. A. 5), indirectly overruled by Blakey v. Brinson, supra. Board of Commissioners of Crawford County v. Strawn, 157 F. 49, 15 L. R. A. (N. S.) 1100 (C. C. A. 6). These decisions are not applicable here. Nor are we concerned with the so-called “collection” cases, typical of which are City of Miami v. First National Bank, 58 F.(2d) 561 (C. C. A. 5); Commercial Nat. Bank v. Armstrong, supra, and Equitable Trust Company v. Rochling, 275 U. S. 248, 48 S. Ct. 58, 72 L. Ed. 264. While funds received by' banks as avails of cheeks or drafts deposited for collection are sometimes referred to as trust funds, the relationship between the bank and the depositor is, strictly speaking, one of agency and not of trust, and title to the paper while collection is being made is in the depositor and not in the bank. Finally, there is a class of state cases which seem to hold that, whenever money is deposited with a bank to await the completion of a contract, the outcome of pending litigation, or as security, the deposit must be considered as having been received in trust for a specific purpose. Typical of such eases is Hudspeth v. Union Trust & Savings Co., 196 Iowa, 706, 195 N. W. 378, Cf. note 31 A. L. R. 472, and contra Cabrera v. Thannhauser & Co., 183 Cal. 604, 192 P. 45; Fralick v. Cœur D’Alene Bank & Trust Co., 36 Idaho, 108, 210 P. 586; Mutual Accident Association v. Jacobs, 141 Ill." }, { "docid": "4339495", "title": "", "text": "bank. In this respect the facts of the ease are not distinguishable in effect from those in Schumacher v. Harriett (C. C. A.) 52 F.(2d) 817, 82 A. L. R. 1. We held there that a fund deposited with a bank to purchase bonds for the depositor, which the bank failed to do, was traceable into the hands of the receiver of the bank upon insolvency so as' to establish a preferential trust, although the checks forming the deposit had been sent for credit to a correspondent bank, and all of the credit with the correspondent had been entirely exhausted at the time of the bank’s failure. The reason was that the cheeks, when deposited, had been accepted by the bank as a cash item, and there was always enough money in the bank’s hands up to the time of the appointment of the receiver to cover the trust fund, and it was assumed that an amount of cash, equivalent to the checks, had been set aside in the vaults of the bank and held by it to satisfy the trust obligation. The practical difficulty under modern banking conditions of distinguishing between cash, cash items, and deposits in other banks, in the application of the equitable doctrine relative to the tracing of trust funds in an insolvent bank, was emphasized. The parallel situation in the pending ease requires a similar ruling here. Affirmed." }, { "docid": "721653", "title": "", "text": "with this cash fund. A reason why the draft should not be considered as having been commingled with the cash fund of the hank is that a commingling of the funds can only be considered as such when they lose their identity and are commingled “with a mass of like goods.” Peters v. Bain, 133 U. S. 670, 690, 693, 10 S. Ct. 354, 33 L. Ed. 696; Ellerbe v. Studebak er Corp. (C. C. A.) 21 F.(2d) 993, 996. The appellee claims certain Iowa authorities support a rule that an augmentation of the general assets of an insolvent estate and a tracing thereto is sufficient, hut the questions here involved are governed by the general commercial law of the country and, while the decisions of the state court are always persuasive, instructive, and respected, they are not conclusive. Security Nat. Bank v. Old Nat. Bank, supra. The clear proof is that the draft was sent to a reserve or a correspondent bank and may there have been converted into cash. But the tracing of the draft or its proceeds to the correspondent bank availeth nothing to claimant, as that fund was depleted and overdrawn prior to the time the bank was taken over by. the Comptroller of the Currency. The fund in the correspondent bank must be considered separate and apart from the cash fund in the forwarding bank unless commingling is clearly proven. Board of Commissioners of Crawford County v. Strawn (C. C. A.) 157 F. 49, 52, 15 L. R. A. (N. S.) 1100; First Nat. Bank of Forsyth v. Fidelity & Deposit Co. (C. C. A.) 48 F.(2d) 585, 587. The administrator, having failed to prove that the draft or any proceeds thereof ever augmented or were commingled with the alleged cash trust fund of $2,907.45, is not entitled to a preferential payment therefrom, and the District Court will so enter its decree. Reversed." }, { "docid": "12535109", "title": "", "text": "Co., or‘what was done with any of it. Upon such a state of facts, it is, we think, very clear that no presumption can be indulged that any of that money ever reached the vaults of the United States National Bank of Centralia, and certainly none that any of it ever passed into the possession of the receiver of its assets. The necessary conclusion is that the court below was in error in awarding the appellee a preference over the general creditors of the insolvent bank in respect to that portion of the trust money deposited by it with Coffman, Dobson & Co., and dissipated on or before April 14, 1914. State Bank of Winfield v. Alva Security Bank, 232 Fed. 847, - C. C. A. -. In Brennan v. Tillinghast, 201 Fed. 609, 614, 120 C. C. A. 37, 42, the Circuit Court of Appeals of the Sixth Circuit said: “It is true that in the case of blended moneys in a bank account, consisting in part of trust funds, from which there have been drawings from time to time, it has been held, in favor of the cestui que trust, as a presumption of law, that the sums first drawn out were from the moneys which the tort-feasor had a right to expend in his own business, and that the balance which regained included the trust fund, which he had no right to use. In re Hallett’s Estate, 13 Ch. D. 696, 727; Board of Commissioners v. Strawn [157 Fed.] at page 51 [84 C. C. A. 553, 15 L. R. A. (N. S.) 1100]. It is clear, however, in the -first place, that this is a mere presumption, which will not stand against eviclence to the contrary. Board of Commissioners v. Strawn [157 Fed.] at page 51 [84 C. C. A. 553, 15 L. R. A. (N. S.) 1100].” Wbat has been said with respect to the deposit with Coffman, Dob-son & Co. applies equally to the deposit of that portion of the trust money made by the United States National Bank of Centraba with the Bank" }, { "docid": "4339494", "title": "", "text": "the'infant’s money, to remain until she should attain twenty-one years óf age, knowing that the depositor had no authority to make the deposit, but was violating her duty to the child in doing so. These circumstances gave rise, under the settled rule, to a constructive trust, and the bank thereby was charged from the beginning with the obligations of a trustee to safeguard the fund for the benefit of the infant child. Cuttell v. Fluent (C. C. A.) 51 F.(2d) 974; First National Bank of Forsyth, Mont., v. Mdelity & Deposit Co. of Md. (C. C. A.) 48 F. (2d) 585; Allen v. United States (C. C. A.) 285 F. 678; U. S. Natl. Bank v. City of Centrada (C. C. A.) 240 F. 93; Board of Commissioners of Crawford County, Ohio, v. Strawn (C. C. A.) 157 F. 49, 15 L. R. A. (N. S.) 1100. The remaining question concerns the right of the beneficiary to demand the trust fund from the receiver as a prior claim to the other creditors of the insolvent bank. In this respect the facts of the ease are not distinguishable in effect from those in Schumacher v. Harriett (C. C. A.) 52 F.(2d) 817, 82 A. L. R. 1. We held there that a fund deposited with a bank to purchase bonds for the depositor, which the bank failed to do, was traceable into the hands of the receiver of the bank upon insolvency so as' to establish a preferential trust, although the checks forming the deposit had been sent for credit to a correspondent bank, and all of the credit with the correspondent had been entirely exhausted at the time of the bank’s failure. The reason was that the cheeks, when deposited, had been accepted by the bank as a cash item, and there was always enough money in the bank’s hands up to the time of the appointment of the receiver to cover the trust fund, and it was assumed that an amount of cash, equivalent to the checks, had been set aside in the vaults of the bank and held" }, { "docid": "15632766", "title": "", "text": "preferential lien on the defaulting trustee’s insolvent general estate. Spokane County v. First National Bank (C. C. A.) 68 F. 979; Board of Commissioners v. Strawn (C. C. A.) 157 F. 49, 15 L. R. A. (N. S.) 1100. It may be true I hat, if the trust money had not been used to make the clearance, cash of the bank would have been, so that the use of the trust money in this way preserved to that extent the cash tvhich remained and later went into the receiver’s hands; but this benefit has always been considered too uncertain and elusive to constitute a tracing of the trust. City Bank v. Blackmore (C. C. A.) 75 F. 771; In re Brown (C. C. A.) 193 F. 24; Empire State Surety Co. v. Carroll County (C. C. A.) 194 F. 593; First National Bank v. Williams (D. C.) 15 F.(2d) 585; Farmers’ Natl. Bank v. Pribble (C. C. A.) 15 F.(2d) 175. In Frelinghuysen v. Nugent (C. C.) 36 F. 229, 239, misapplied money used for pay rolls was denied a lien on manufactured goods. Justice Bradley stated the law in words quoted with approval in Peters v. Bain, 133 U. S. at page 693, 10 S. Ct. 354, 33 L. Ed. 696, thus: “Formerly the equitable right of following misapplied money or other property into the hands of the parties receiving it, depended upon the ability of identifying it; the equity attaching only to the very property misapplied. This right was first extended to the proceeds of the property, namely, to that which was procured in place of it by exchange, purchase, or sale. But if it became confused with other property of the same kind, so as not to be distinguishable, without any fault on the part of the possessor, the equity was lost. Finally, however, it has been, held as the better doctrine that confusion does not destroy the equity entirely, but converts it into a charge upon the entire mass, giving to the party injured by the unlawful diversion a priority of right over the other creditors" }, { "docid": "1833643", "title": "", "text": "68 of the Bankruptcy Act (11 USCA §§ 103,108), especially where the insolvency of the debtor is apparent and bankruptcy later follows. Rupp v. Commerce Guardian Trust & Savings Bank (C. C. A.) 32 F.(2d) 234; Germania Savings Bank & Trust Co. v. Loeb (C. C. A.) 188 F. 285; American Bank & Trust Co. v. Morris (C. C. A.) 16 F.(2d) 845; Putnam v. United States Trust Co., 223 Mass. 199, 202, 111 N. E. 969; Carr v. Hamilton, 129 U. S. 252, 256, 9 S. Ct. 295, 32 L. Ed. 669; Federal Reserve Bank of Minneapolis v. First National Bank of Eureka, S. D. (D. C.) 277 F. 300, 302, 303. There is no ground for a contention that the deposits amounting to $3,361.91 were made except in the usual course of business and were subject to cheek. From July 7 to August 13 the bankrupt did business as usual, making deposits and issuing cheeks against the deposit, which were honored by the Trust Company. There are no facts certified to by the referee that require the inference that it received them for the purpose of building up a deposit to set off against the depositor’s notes, or that the depositor had any intent to thereby give the Trust Company a preference over other creditors. Plymouth County Trust Co. v. MacDonald (C. C. A.) 60 F.(2d) 94, 95; Fourth National Bank of Wichita, Kan., v. Smith (C. C. A.) 240 F. 19. As to the application of the $1,700 item, a different situation arises. The right to offset this sum against the indebtedness of the bankrupt must depend on the terms of the collateral notes and of the assignment of the accounts receivable, or an equitable right of set-off. Scott v. Armstrong, 146 U. S. 499, 13 S. Ct. 148, 36 L. Ed. 1059; Putnam v. United States Trust Co., supra; Schuler v. Israel, 120 U. S. 506, 510, 7 S. Ct. 648, 30 L. Ed. 707; 24 R. C. L. 843; Nashville Trust Co. v. Nashville Fourth National Bank, 91 Tenn. 336, 18 S. W. 822, 15" }, { "docid": "14723792", "title": "", "text": "these facts the appellant contends that there was no trust ex maleficio as against the bank; that the deposit of county funds did not augment the assets of the bank; that the deposits have not been traced to the funds that came into the hands of the receiver; and that the .allowance of interest was contrary to law. In American Surety Co. v. Jackson, 24 F. (2d) 768, 769, this court said: “If the city funds were lawfully deposited in the. depository bank, the relation of debtor and creditor existed between the city and the bank, and it is well settled that neither the -city nor those claiming under it can under such circumstances claim any preference over general creditors. On the other hand, if the deposits were made by the city treasurer in violation of the laws of the state, it is equally well settled that the bank became a trustee, and that the city, or those claiming under it, may, recover from the receiver the amount of thp trust fund, if less than the amount of cash coming into his hands at the inception of the receivership, unless it is made to appear that some portion of the trust fund had theretofore been paid ‘out or dissipated by the bank. Spokane County v. First Nat. Bank (C. C. A.) 68 F. 979; Merchants’ Nat. Bank v. School District No. 8 (C. C. A.) 94 F. 705; Smith v. Mottley (C. C. A.) 150 F. 266; Board of Com’rs v. Strawn (C. C. A.) 157 F. 49, 15 L. R. A. (N. S.) 1100; In re J. M. Acheson Co. (C. C. A.) 170 F. 427; Titlow v. McCormick (C. C. A.) 236 F. 209. We do not understand that this rule is controverted.” The appellant contends that there was no trust ex maleficio because the deposits made by the county treasurer in excess of the amount of penalty of the bond approved by the board of county commissioners were, not in violation of law, citing City of Missoula v. Dick, 76 Mont. 502, 248 P. 193, 195, and" }, { "docid": "15645766", "title": "", "text": "see that it is given, but if a deposit is made in a state depository under authority of the first section before a bond is given, since the act does not in terms forbid it, we cannot deny that the intended relation of debtor and creditor arises. The bank thereupon becomes debtor to the county and acquires title to the funds deposited. Money of the United States was traced and a lien was fixed on a bank’s assets because the bank was not an authorized depository in Allen v. United States (C. C. A.) 285 F. 678; but this was because 18 USCA § 182 makes it a crime for a banker not an authorized depository to knowingly receive public money of the United States from an officer. The like decision in San Diego County v. California National Bank (C. C.) 52 F. 59, was based on the law of that state which made the deposit illegal. So, also, in Merchants’ National Bank v. School District (C. C. A.) 94 F. 705, and Board of Commissioners v. Strawn (C. C. A.) 157 F. 49, 15 L. R. A. (N. S.) 1100. In American Surety Co. v. Jackson (C. C. A.) 24 F.(2d) 768; United States National Bank v. City of Centralia (C. C. A.) 240 F. 93; and Leach, Superintendent, v. Farmers’ Savings Bank, 204 Iowa, 1083, 216 N. W. 748, 65 A. L. R. 679, the statutes authorizing deposit expressly required that bond be taken before ■any deposit is made, as does the Georgia state depository statute. Civ. Code § 1252. Though the point has not been argued, the bill before us fails, as pointed out by a ground of the motion to dismiss, to show that any of the assets taken over by the receiver are the proceeds of these county deposits. It would not suffice to establish that the bank wrongfully got money of the county and mixed it with its own, but it must also appear that until the receiver got the assets the fund into which it went has never been reduced below the sum" }, { "docid": "721650", "title": "", "text": "* * * “Moreover, the deposit of cheeks of third persons which are credited to the depositor and used by the bank to pay its debts bring no money into its fund of cash and form no foundation for preferential payment to the depositor. * * * “Again, checks of third parties deposited with a bank credited to the depositor and collected through a clearing house lay no foundation for a preferential payment, in the absence of proof of the actual balance of cash the bank received on account of them, for they may have been and usually are used in whole or in part to discharge the debts of the bank. * * * ” The fund into which trust funds are sought to be traced in this case is the cash that was in the bank at the time it closed its doors in the sum of $2,907.45. The question for determination is: Has the complainant traced said draft or the proceeds therefrom to and into this fund? Upon deposit with it the Rockford bank became the absolute owner of the draft and became a debtor of the administrator for part of the purchase price, namely, $12,500. Security Nat. Bank v. Old Nat. Bank (C. C. A.) 241 F. 1; In re Ruskay (C. C. A.) 5 F.(2d) 143; In re Gubelman (C. C. A.) 10 F.(2d) 926; Burton v. U. S., 196 U. S. 283, 25 S. Ct. 243, 49 L. Ed. 482; Douglas v. Federal Reserve Bank, 271 U. S. 489, 46 S. Ct. 554, 70 L. Ed. 1051. It may also be conceded that the Rockford bank at this time and later was solvent, and for this reason it may be presumed, although the evidence does not so show, that the Rockford bank at this time had a cash reserve. The trust relationship having been established, the depositor may recover such fund or any part thereof in so far as the same can he traced in the possession of the bank either in its original form or in forms to which it has been converted," }, { "docid": "14723793", "title": "", "text": "the amount of cash coming into his hands at the inception of the receivership, unless it is made to appear that some portion of the trust fund had theretofore been paid ‘out or dissipated by the bank. Spokane County v. First Nat. Bank (C. C. A.) 68 F. 979; Merchants’ Nat. Bank v. School District No. 8 (C. C. A.) 94 F. 705; Smith v. Mottley (C. C. A.) 150 F. 266; Board of Com’rs v. Strawn (C. C. A.) 157 F. 49, 15 L. R. A. (N. S.) 1100; In re J. M. Acheson Co. (C. C. A.) 170 F. 427; Titlow v. McCormick (C. C. A.) 236 F. 209. We do not understand that this rule is controverted.” The appellant contends that there was no trust ex maleficio because the deposits made by the county treasurer in excess of the amount of penalty of the bond approved by the board of county commissioners were, not in violation of law, citing City of Missoula v. Dick, 76 Mont. 502, 248 P. 193, 195, and Missoula County v. Lochrie, 83 Mont. 308, 271 P. 710. In the City of Missoula Case it was held that deposits by a city treasurer in excess of the amount or penalty of the bond approved by the city council were not in violation of law, and constituted a general deposit from which no trust could arise or be implied. But the court significantly added: “As the matter of the amount of security was left to the discretion of the council, it was its duty, if it deemed the bond on file insufficient to protect the full amount of the deposits, to prescribe what further bond should be furnished and to so notify the treasurer, or it might with propriety have directed the treasurer, at the time it prescribed the bond for the period mentioned, not to deposit to exceed .a certain amount until further security was prescribed and approved; it did neither, and therefore, as the bond prescribed was in effect and covered all deposits made the law was complied with and the -" }, { "docid": "13238514", "title": "", "text": "76 L. Ed. 1089: “It would have been equally competent for respondent to have provided for the purchase of the bonds either by the creation of a trust of funds in the hands of the bank, to be used for that purpose, or by establishing with it a credit to be debited with the cost of the bonds when purchased. But only if the former was the method adopted could respondent, upon the bank’s insolvency and failure to purchase the bonds, recover the fund or its proceeds, if traceable, in preference to general crediitors.” Trusts have been impressed upon funds which are not strictly special deposits, and where there is no intention expressed or clearly to be implied that the funds deposited should be segregated and not commingled with the general funds of the bank. Such trusts are generally held to result from some wrongful act on the part of the bank, such as the acceptance of a deposit by the officers of the bank, knowing at the time that the bank is insolvent. No ¡such situation is here involved. Another ground for such declaration of trust is the receipt of funds to be applied and used for a definitely designated purpose, but which are in fact fraudulently or unlawfully appropriated to other uses. This misapplication constitutes a wrongful act, and makes the recipient a trustee. Smith v. Mottley, 150 F. 266 (C. C. A. 6); Merchants’ National Bank v. School District No. 8, 94 F. 705 (C. C. A. 9); Schumacher v. Harriett, 52 F.(2d) 817 (C. C. A. 4); Davis v. McNair, 48 F.(2d) 494 (C. C. A. 5), indirectly overruled by Blakey v. Brinson, supra. Board of Commissioners of Crawford County v. Strawn, 157 F. 49, 15 L. R. A. (N. S.) 1100 (C. C. A. 6). These decisions are not applicable here. Nor are we concerned with the so-called “collection” cases, typical of which are City of Miami v. First National Bank, 58 F.(2d) 561 (C. C. A. 5); Commercial Nat. Bank v. Armstrong, supra, and Equitable Trust Company v. Rochling, 275 U. S. 248, 48" }, { "docid": "1539807", "title": "", "text": "to restrict the “trust fund” doctrine. Empire State Surety Co. v. Carroll County, 194 Fed. 593, 114 C. C. A. 435; Board of Commissioners v. Strawn, 157 Fed. 49, 84 C. C. A. 553, 15 L. R. A. (N. S.) 1100; In re Brown, 193 Fed. 24; Commercial National Bank v. Armstrong (C. C.) 39 Fed. 684. The rule is accurately stated and numerous authorities cited by this court in the first case referred to, as follows: “It is indispensable to the maintenance by a cestui que trust of a claim to preferential payment by a receiver out of the proceeds of the estate of an insolvent that clear proof be made that the trust property or its proceeds went into a specific fund or into a specific identified piece of property whiet came to the hands of the receiver.” If a trust fund can be traced into a single account, like cash, or a credit at a single bank, then the trust may be impressed upon the smallest balance that remains in the fund between the time of the deposit and the date when a return of the trust fund is demanded. But the rule does not admit the grouping of numerous accounts together as a single fund. Brennan v. Tillinghast, 201 Fed. 609, 120 C. C. A. 37. The term “Sight Exchange” in the estate of the Alva Bank covered its credits with all its numerous correspondents. The subject was not fully developed in the evidence, but there is sufficient to justify the inference that Fulkerson was engaged in selling forged paper to different banks to meet the same kind of instruments which had been previously sold. His correspondents were constantly changing. Some accounts even of reserve agents were entirely closed, and accounts of others were reduced to the vanishing point. Plaintiffs showed that between the time of the purchase of their notes and the bank’s failure there was always in “Cash and Sight Exchange” two or three times the amount which was obtained from them on the forged paper. It is manifest, however, that no presumption can" }, { "docid": "1539806", "title": "", "text": "were squandered. His evidence fails to show that plaintiff’s funds were not used in that way. The drafts could have been easily traced and their actual use shown'. Second, if the drafts were in fact deposited with reserve banks, the amount so deposited in specific banks should have been shown and then the state of that bank’s account should have been followed down to the failure of the Alva Bank. Upon such a showing a trust might have been impressed upon the smallest balance remaining in the account at any time during the period. The capital defect, however, of plaintiffs’ theory is their treatment of the grand division of the bank’s assets in its reports know*' as “Cash and Sight Exchange” as a “fund” within the law relating to the following of trust funds. To adopt that theory is to re-establish under a mere bookkeeping disguise the exploded notion that a trust fund may be recovered if it can be traced into the general assets of an insolvent estate. The courts have shown a tendency to restrict the “trust fund” doctrine. Empire State Surety Co. v. Carroll County, 194 Fed. 593, 114 C. C. A. 435; Board of Commissioners v. Strawn, 157 Fed. 49, 84 C. C. A. 553, 15 L. R. A. (N. S.) 1100; In re Brown, 193 Fed. 24; Commercial National Bank v. Armstrong (C. C.) 39 Fed. 684. The rule is accurately stated and numerous authorities cited by this court in the first case referred to, as follows: “It is indispensable to the maintenance by a cestui que trust of a claim to preferential payment by a receiver out of the proceeds of the estate of an insolvent that clear proof be made that the trust property or its proceeds went into a specific fund or into a specific identified piece of property whiet came to the hands of the receiver.” If a trust fund can be traced into a single account, like cash, or a credit at a single bank, then the trust may be impressed upon the smallest balance that remains in the fund" }, { "docid": "23582611", "title": "", "text": "of the remainder, not exceeding the smallest amount the fund contained subsequent to the commingling, because the legal presumption is that he regarded the law, and neither paid out nor invested in other securities or property the trust fund, but kept it sacred. Spokane County v. First National Bank of Spokane et al., 68 Fed. 979, 982, 16 C. C. A. 81; Empire State Surety Co. v. Carroll County, 194 Fed. 593, 114 C. C. A. 435; In re T. A. McIntyre Co., 185 Fed. 97, 108 C. C. A. 543; In re First State Bank, 152 Iowa, 724, 133 N. W. 355, and citations; Burgoyne v. McKillip, 182 Fed. 452, 104 C. C. A. 590; Schuyler v. Littlefield, Trustee of Brown & Co., 232 U. S. 707, 34 Sup. Ct. 466, 58 L. Ed. 806. And one for whom a bank had collected a draft before it failed is not entitled to preference over other creditors if the bank had disposed of the proceeds before the assignee came into possession. Nonotuck Silk Co. v. Flanders, 87 Wis. 237, 58 N. W. 383. And under such circumstances he is entitled to recover only the lowest balance to the credit of the collecting bank in the batik on which the check was drawn where it was deposited between the date of the deposit and the appointment of the receiver. American Can Co. v. Williams (C. C.) 176 Fed. 816; Board of Commissioners of Crawford Co., Ohio, v. Strawn, 157 Fed. 49, 84 C. C. A. 553, 15 L. R. A. (N. S.) 1100. There is no recognized ground upon which equity can pursue the proceeds of this collection, misapplied by the bankrupt, and impose upon it the character of a trust, except on the theory that the money is still the property of Roedenbeck, and if Roedenbeck is to be permitted to follow the proceeds of the collection of the note, received by the bankrupt upon the collection of the same, and recover it, it is because the property belongs to the petitioner, whether in the form which he parted with" }, { "docid": "15632768", "title": "", "text": "of the possessor. This is as far as the rule has been carried.” The lien by confusion rests upon a certainty that the mixed mass which passes to the receiver contains the trust property or its proceeds, though not capable of separation and identification. This certainty is often reached through a presumption that withdrawals from the mass are of the wrongdoer’s own portion. But, if at any time the withdrawals are so great as necessarily to have encroached on the trust portion, the lien will not usually enlarge to cover later additions to the mass. Board of Commissioners v. Strawn (C. C. A.) 157 F. 49, 15 L. R. A. (N. S.) 1100; American Can Co. v. Williams (C. C. A.) 178 F. 420. In the case at bar, so far from certainly tracing-the trust res or its proceeds into the hands of the receiver, the evidence traces it elsewhere. It was never converted into cash or into a credit whieh had no earmarks, was never so confused with other similar property as to become unidentifiable. We know that neither the cashier’s cheek for $500 nor anything representing it is in the fund in the receiver’s hands. To subrogate Key to the place of the eheckholders who were paid by this cheek would do him no good, for still he would be whát he is now, a mere general creditor; Though the victim of a wrong and an involuntary creditor, he has for that reason no better equitable right to what is in the receiver’s hands than other creditors have. The contrary view expressed in San Diego County v. California Natl. Bank (C. C.) 52 F. 59, was disapproved in Multonomah County v. Oregon Natl. Bank (C. C.) 61 F. 912, and Spokane County v. First Natl. Bank (C. C. A.) 68 F. 979, and we believe has not since been asserted in the federal courts. Schumacher v. Harriett (C. C. A.) 52 F. (2d) 817, 82 A. L. R. 1, is much relied on to sustain the judgment appealed from. The court there reviews the eases and concedes that" } ]

[ { "docid": "2561242", "title": "", "text": "certain duration of time. Kimberly argues that it never made any promises to Falk concerning the duration of her employment with the company. As a result, she was an employee at will who could be terminated at any time without cause. ANALYSIS Promissory estoppel is an equitable doctrine that may be invoked in both contractual and noncontractual settings. Geva v. Leo Burnett Co., 931 F.2d 1220, 1223 (7th Cir.1991). Illinois’s law of promissory estoppel has four elements. To establish a claim a plaintiff must allege that (1) defendant made an unambiguous promise to plaintiff; (2) plaintiff relied on such promise; (3) plaintiffs reliance was expected and foreseeable by defendant; and (4) plaintiff relied on the promise to its detriment. Quake Const., Inc. v. American Airlines, Inc., 141 Ill.2d 281, 152 Ill.Dec. 308, 322, 565 N.E.2d 990, 1004 (Ill.1990). In the present case only the first element is in dispute. Kimberly does not contest that Falk’s actions created a detrimental reliance interest if taken pursuant to a promise, or that those actions were foreseeable to Kimberly. Kimberly only argues that Falk did not, and cannot, allege the existence of an unambiguous promise. In order to allege an unambiguous promise for the purposes of a promissory estoppel claim, an express promise is not required. First Nat’l Bank v. Sylvester, 196 Ill.App.3d 902, 144 Ill.Dec. 24, 31, 554 N.E.2d 1063, 1070 (Ill.App.Ct.), appeal denied, 133 Ill.2d 555, 149 Ill.Dec. 320, 561 N.E.2d 690 (Ill.1990). A promise may be inferred from conduct and words. Id. In First Nat’l Bank the Illinois Appellate Court considered a promissory estoppel claim made by a construction company against a bank. The bank had repeatedly extended the company credit over a long period of time. The construction company entered a subcontract in reliance on obtaining further financing from the bank. The bank refused to extend credit causing the company to default on it’s contract. The Court held that the bank’s past practice could estop it from refusing to extend credit and, as a matter of law, it could be held liable for the company’s reliance expenses. Id. In employment" } ]

[ { "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": "4407530", "title": "", "text": "reliance on this promise. Third, the reliance must have been expected and foreseeable. Finally, there must be some injury resulting form the reliance. Simmons, 727 F.Supp. at 443 (citing Patkus v. Sangamon-Cass Consortium, 769 F.2d 1251, 1264 (7th Cir.1985)); Quake Construction, Inc. v. American Airlines, Inc., 141 Ill.2d 281, 309-10, 152 Ill.Dec. 308, 322, 565 N.E.2d 990, 1004 (1990) Illinois Valley Asphalt, Inc. v. J.F. Edwards Construction Co., 90 Ill.App.3d 768, 770, 45 Ill.Dec. 876, 878, 413 N.E.2d 209, 211 (3d Dist.1980). The promissory estoppel doctrine is generally invoked in situations in which the plaintiff is unable to prove the existence of an actual contract. This court has in the past expressed some hesitation regarding the applicability of the promissory estoppel theory in the employment contract context, see Massouras v. Litton Industrial Products, Inc., No. 84 C 2618, 1985 WL 9361 at 2 (N.D.Ill. Feb. 4, 1985), for a permissive view of that doctrine would likely undermine the presumption of employment at will, to which Illinois courts have historically adhered. Our doubts have recently been echoed in the Seventh Circuit. See Goldstick, 788 F.2d at 465. But because the Program had not raised this argument, we will proceed to consider the merits of the promissory estoppel claim. If this case ultimately goes to trial, moreover, it would perhaps be best to tackle the difficult question of where the Illinois Supreme Court would likely stand on this issue after the jury has resolved the contract claim. The Program attacks Lamaster’s promissory estoppel claim initially on the grounds that the promise to Lamaster was not unambiguous. Whether a promise that is “clear and definite” for contract formation purposes is necessarily “unambiguous” for promissory estoppel purposes does not appear ever to have been squarely addressed, although there is some indication that a promise that fails the clear-and-definite test will not support a promissory estoppel claim, see Simmons, 727 F.Supp. at 443-44; Phillips v. Britton, 162 Ill.App.3d 774, 785-86, 114 Ill.Dec. 537, 545, 516 N.E.2d 692, 700 (5th Dist.1987). The promise in this case, however, was sufficiently straightforward and explicit to satisfy the requirement" }, { "docid": "2561244", "title": "", "text": "relationships, however, promises concerning the duration of employment must be alleged with more specificity. Illinois courts have traditionally adhered to the presumption of employment at will. An overly permissive operation of the promissory estoppel docti’ine in an employment setting could undermine that presumption. Goldstick v. ICM Realty, 788 F.2d 456, 465 (7th Cir.1986); Lamaster v. Chicago & N.E. Ill.Dist. Council, 766 F.Supp. 1497, 1505 (N.D.Ill.1991). In Simmons v. John F. Kennedy Medical Center, 727 F.Supp. 440 (N.D.Ill.1989), a federal district court considered an employee’s claim that her employer had promised to employ her for a certain duration. The Court found that under Illinois law the company’s promise to pay her an annual salary and reimburse her for a two year MBA program did not constitute an “unambiguous” promise of employment for a certain duration. Id. at 443, 444. In Geva v. Leo Burnett, the Seventh Circuit Court of Appeals considered a plaintiffs use of Illinois’s promissory estoppel law against his former employer. Geva, 931 F.2d at 1220. The plaintiff argued that his employer’s statement to the Immigration and Naturalization Service that it intended to employ the plaintiff for three years amounted to a promise. The Court held that this could not be considered an unambiguous promise upon which the plaintiff could rely. Id. at 1223-1224. In the present case Falk alleges that Kimberly made two promises to her. The first concerned the duration of her employment with Kimberly. The second concerned the specific terms of her employment in Kimberly’s Chicago office. Falk fails to adequately allege the presence of the first promise. While Falk is not required to plead evidence or even ultimate facts under the notice pleading requirements of the Federal Rules of Civil Procedure, she has only the slightest support for her claim that Kimberly promised to employ her for a certain duration. In fact, she seems to make this argument only in response to Kimberly’s assertion, in it’s motion to dismiss, that Illinois law requires her to make it. To support the existence of such a promise Falk points to notes, incorporated into her complaint, regarding the" }, { "docid": "11504240", "title": "", "text": "Board of Educ. of Sch. Dist. 189, 152 Ill.App.3d 187, 201, 105 Ill.Dec. 195, 204, 503 N.E.2d 1201, 1210 (5th Dist.1987) (citation omitted). 2. To prevail on a claim for promissory estoppel, Midway must prove each of the foUowing elements by a preponderance of the evidence: (1) Northwest made an unambiguous promise to Midway; (2) Midway reasonably rehed on such promise; (3) Midway’s rebanee was expected and foreseeable by Northwest; and (4) Midway reasonably relied on Northwest’s promise to Midway’s detriment. Quake, 141 Ill.2d at 309-10, 152 Ill.Dec. at 322, 565 N.E.2d at 1004; Vajda v. Arthur Andersen & Co., 253 Ill.App.3d 345, 356, 191 Ill.Dec. 965, 972, 624 N.E.2d 1343, 1350 (1st Dist.), appeal denied, 153 Ill.2d 570, 191 Ill.Dec. 630, 624 N.E.2d 818 (1993); Geva v. Leo Burnett Co., 931 F.2d 1220, 1223 (7th Cir.1991); Jaskowski v. Rodman & Renshaw, Inc., 842 F.Supp. 1094, 1100 (N.D.Ill.1994). 3. Midway bears the burden of proving that it reUed on the alleged promise, and that its reUance was reasonable and justified. Quake, 141 Ill.2d at 309-10, 152 Ill.Dec. at 322, 565 N.E.2d at 1004; IK Corp. v. One Financial Place Partnership, 200 Ill.App.3d 802, 816-17, 146 Ill.Dec. 198, 208, 558 N.E.2d 161, 171 (1st Dist.), appeal denied, 135 Ill.2d 556, 151 Ill.Dec. 383, 564 N,E.2d 838 (1990); A-Abart Elec. Supply, Inc. v. Emerson Elec. Co., 956 F.2d 1399, 1404 (7th Cir.) cert. denied, - U.S. -, 113 S.Ct. 194, 121 L.Ed.2d 137 (1992); M.T. Bonk Co. v. Milton Bradley Co., 945 F.2d 1404, 1408 (7th Cir.1991). 4. The promise required to establish promissory estoppel does not have to be an express promise; rather, the promise may be inferred from the words and conduct of the defendant. First Nat’l Bank of Cicero v. Sylvester, 196 Ill.App.3d 902, 912, 144 Ill.Dec. 24, 31, 554 N.E.2d 1063, 1070 (1st Dist.), appeal denied, 133 Ill.2d 555, 149 Ill.Dec. 320, 561 N.E.2d 690 (1990); see RESTATEMENT (SECOND) OF CONTRACTS § 2(1) (1981) (“A promise is a manifestation of intention to act or refrain from acting in a specified way, so made as to justify a promis-ee" }, { "docid": "11504243", "title": "", "text": "in neither case did the respective court find an unambiguous promise. In Quake, the IHinois Supreme Court held only that the plaintiff’s promissory estoppel claim should not have been dismissed, and remanded the claim to the trial court for consideration of the evidence. 141 Ill.2d at 310-11, 152 Ill.Dec. at 322-23, 565 N.E.2d at 1004-05. In Bercoon, the district court merely denied a motion to dismiss a promissory estoppel claim. 818 F.Supp. at 1161. The decision in Bercoon actually undermines Midway’s claim. In Bercoon, the plaintiff aUeged that the defendant’s agent had informed plaintiff that the parties had a “done deal.” Id. at 1160. Nonetheless, the court observed that the statement was not sufficient by itself to satisfy the unambiguous promise requirement. Id. (citing Ziese, 463 F.2d at 1060 (statement “Quit worrying ... you’ve got a deal” was not sufficiently unequivocal to support a claim for promissory estoppel)). Here, Midway cannot even point to a statement as definite as the assurance determined to be insufficient in Bercoon. See Rockford Cutting Tools & Abrasives v. Norton Co., 1991 WL 191601 (N.D.Ill. Sept. 19, 1991) (rejecting attempt by plaintiff to patch together an unambiguous promise from numerous separate factual allegations). 8. The Court concludes that Midway has failed to prove by a preponderance of the evidence that Northwest made unambiguous promises either regarding the acquisition of substantially all of Midway’s assets or regarding the funding of Midway’s operating losses. 9. A party claiming promissory estoppel must also prove that its reHance on the defendant’s promise was reasonable. IK Corp., 200 Ill.App.3d at 816, 146 Ill.Dec. at 207, 558 N.E.2d at 170. Where the defendant’s promise is conditional, the plaintiffs reHance is not reasonable, as “[o]pinions based on contingent or future events are not the basis of an action for ... promissory estoppel,” as in IK Corp., 200 Ill.App.3d at 816, 146 Ill.Dec. at 208, 558 N.E.2d at 171. 10. The Court concludes that Midway did not reasonably and justifiably rely to its detriment on any promises made by Northwest regarding the Back-End transaction because Northwest’s offer was subject to conditions precedent which" }, { "docid": "22239042", "title": "", "text": "offered no permanent modification at all. The terms of the TPP are clear and definite enough to support Wigod’s breach of contract theory. Accord, e.g., Belyea v. Litton Loan Servicing, LLP, No. 10-10931-DJC, 2011 WL 2884964, at *8 (D.Mass. July 15, 2011) (“At a minimum, then, the TPP contains all essential and material terms necessary to govern the trial period repayments and the parties’ related obligations.”), quoting Bosque v. Wells Fargo Bank, N.A., 762 F.Supp.2d 342, 352 (D.Mass.2011). Wigod’s complaint sufficiently pled each element of a breach of contract claim under Illinois law. The relevant documents do not undermine her claim as a matter of law. B. Promissory Estoppel Wigod also asserts a claim for promissory estoppel, which is an alternative means of obtaining contractual relief under Illinois law. See Prentice v. UDC Advisory Services, Inc., 271 Ill.App.3d 505, 207 Ill.Dec. 690, 648 N.E.2d 146, 150 (1995), citing Quake Construction, Inc. v. American Airlines, Inc., 141 Ill.2d 281, 152 Ill.Dec. 308, 565 N.E.2d 990 (1990). Promissory estoppel makes a promise binding where “all the other elements of a contract exist, but consideration is lacking.” Dumas v. Infinity Broadcasting Corp., 416 F.3d 671, 677 (7th Cir.2005), citing Bank of Marion v. Robert “Chick” Fritz, Inc., 57 Ill.2d 120, 311 N.E.2d 138 (1974). The doctrine is “commonly explained as promoting the same purposes as the tort of misrepresentation: punishing or deterring those who mislead others to their detriment and compensating those who are misled.” Avery Katz, When Should an Offer Stick ? The Economics of Promissory Estoppel in Preliminary Negotiations, 105 Yale L.J. 1249, 1254 (1996). To establish the elements of promissory estoppel, “the plaintiff must prove that (1) defendant made an unambiguous promise to plaintiff, (2) plaintiff relied on such promise, (3) plaintiffs reliance was expected and foreseeable by defendants, and (4) plaintiff relied on the promise to its detriment.” Newton Tractor Sales, Inc. v. Kubota Tractor Corp., 233 Ill.2d 46, 329 Ill. Dec. 322, 906 N.E.2d 520, 523-24 (2009). Wigod has adequately alleged her claim of promissory estoppel. She asserts that Wells Fargo made an unambiguous promise that if she" }, { "docid": "15131584", "title": "", "text": "as part of the consolidation process it began to seek a higher standard of performance, a standard that Kalush could not reach. Even if we assume that an oral contract existed, Kalush has not persuaded us that a reasonable trier of fact could conclude that Deluxe did not terminate her for poor performance. E. Promissory Estoppel. Kalush also argues that even if the court finds that she did not have an employment contract, she is entitled to relief under a theory of promissory estoppel. In an employment situation, promissory es-toppel requires proof of the following: (1) an unambiguous promise of employment communicated from the employer to the employee; (2) reasonable reliance on the promise of employment by the employee; (3) the reliance was expected and foreseeable by the employer; and (4) the reliance was to the employee's detriment. Quake Construction, Inc. v. American Airlines, 141 Ill.2d 281, 152 Ill.Dec. 308, 565 N.E.2d 990, 1004 (1990). As discussed above, Ka-lush's own deposition testimony shows that Deluxe never made an unambiguous promise of employment. Thus, Kalush cannot rely on a theory of promissory estoppel. III. CONCLUSION For the reasons stated herein, the district court correctly disposed of Kalush's claims on summary judgment. Therefore, that judgment is AFFIRMED. . Kalush’s 1993 and 1994 performance evaluations were favorable. . Kalush also filed an action at the Illinois Department of Huinan Rights, alleging that Deluxe terminated her because of her age. The IDHR dismissed her complaint and the Illinois Appellate Court affirmed the dismissal, holding that Kalush failed to present sufficient evidence of age discrimination." }, { "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": "2561243", "title": "", "text": "Kimberly only argues that Falk did not, and cannot, allege the existence of an unambiguous promise. In order to allege an unambiguous promise for the purposes of a promissory estoppel claim, an express promise is not required. First Nat’l Bank v. Sylvester, 196 Ill.App.3d 902, 144 Ill.Dec. 24, 31, 554 N.E.2d 1063, 1070 (Ill.App.Ct.), appeal denied, 133 Ill.2d 555, 149 Ill.Dec. 320, 561 N.E.2d 690 (Ill.1990). A promise may be inferred from conduct and words. Id. In First Nat’l Bank the Illinois Appellate Court considered a promissory estoppel claim made by a construction company against a bank. The bank had repeatedly extended the company credit over a long period of time. The construction company entered a subcontract in reliance on obtaining further financing from the bank. The bank refused to extend credit causing the company to default on it’s contract. The Court held that the bank’s past practice could estop it from refusing to extend credit and, as a matter of law, it could be held liable for the company’s reliance expenses. Id. In employment relationships, however, promises concerning the duration of employment must be alleged with more specificity. Illinois courts have traditionally adhered to the presumption of employment at will. An overly permissive operation of the promissory estoppel docti’ine in an employment setting could undermine that presumption. Goldstick v. ICM Realty, 788 F.2d 456, 465 (7th Cir.1986); Lamaster v. Chicago & N.E. Ill.Dist. Council, 766 F.Supp. 1497, 1505 (N.D.Ill.1991). In Simmons v. John F. Kennedy Medical Center, 727 F.Supp. 440 (N.D.Ill.1989), a federal district court considered an employee’s claim that her employer had promised to employ her for a certain duration. The Court found that under Illinois law the company’s promise to pay her an annual salary and reimburse her for a two year MBA program did not constitute an “unambiguous” promise of employment for a certain duration. Id. at 443, 444. In Geva v. Leo Burnett, the Seventh Circuit Court of Appeals considered a plaintiffs use of Illinois’s promissory estoppel law against his former employer. Geva, 931 F.2d at 1220. The plaintiff argued that his employer’s statement to" }, { "docid": "3677055", "title": "", "text": "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 security” because he could work at the management job “as long as he wished or until he retired.” Language which gives Taylor the option to continue on his job “so long as he wants” is tantamount to employment at-will and when coupled with language that he has a job “until he retires” is patently illusory. There is no definite duration to the alleged job offer. See Koch v. Illinois Power Co., 124 Ill.Dec. 461, 465 (1988). Nothing in this language unambiguously promises Plaintiff job permanency or tenure; nothing assures him that he can be terminated only for cause. Indeed, nothing even hints at the expected duration of his employment or anticipates and addresses any other usual and customary contract terms. This language on which Taylor relies is neither clear and definite for purposes of contract formation nor unambiguous for purposes of promissory estoppel. Because as a matter of law Taylor cannot prove the first element of a claim for promissory estoppel, he is not entitled to relief on that claim. CONCLUSION Because the Court finds" }, { "docid": "22239043", "title": "", "text": "elements of a contract exist, but consideration is lacking.” Dumas v. Infinity Broadcasting Corp., 416 F.3d 671, 677 (7th Cir.2005), citing Bank of Marion v. Robert “Chick” Fritz, Inc., 57 Ill.2d 120, 311 N.E.2d 138 (1974). The doctrine is “commonly explained as promoting the same purposes as the tort of misrepresentation: punishing or deterring those who mislead others to their detriment and compensating those who are misled.” Avery Katz, When Should an Offer Stick ? The Economics of Promissory Estoppel in Preliminary Negotiations, 105 Yale L.J. 1249, 1254 (1996). To establish the elements of promissory estoppel, “the plaintiff must prove that (1) defendant made an unambiguous promise to plaintiff, (2) plaintiff relied on such promise, (3) plaintiffs reliance was expected and foreseeable by defendants, and (4) plaintiff relied on the promise to its detriment.” Newton Tractor Sales, Inc. v. Kubota Tractor Corp., 233 Ill.2d 46, 329 Ill. Dec. 322, 906 N.E.2d 520, 523-24 (2009). Wigod has adequately alleged her claim of promissory estoppel. She asserts that Wells Fargo made an unambiguous promise that if she made timely payments and accurate representations during the trial period, she would receive an offer for a permanent loan modification calculated using the required HAMP methodology. She also alleges that she relied on that promise to her detriment by foregoing the opportunity to use other remedies to save her home (such as restructuring her debt in bankruptcy), and by devoting her resources to making the lower monthly payments under the TPP Agreement rather than attempting to sell her home or simply defaulting. A lost opportunity can constitute a sufficient detriment to support a promissory estoppel claim. See Wood v. Mid-Valley Inc., 942 F.2d 425, 428 (7th Cir.1991) (noting that a “foregone ... opportunity” would be “reliance enough to support a claim of promissory estoppel”) (applying Indiana law). Wigod’s complaint therefore alleged a sufficiently clear promise, evidence of her own reliance, and an explanation of the injury that resulted. She also contends that Wells Fargo ought to have anticipated her compliance with the terms of its promise. This was enough to present a facially plausible claim" }, { "docid": "3143829", "title": "", "text": "a question whether it is a correct statement of Illinois law.”). We need not enter this thicket to decide whether in Illinois the doctrine of promissory estoppel can save a claim otherwise barred by the statute of frauds because A-Abart has failed to make the required showing to sustain a claim of promissory estoppel. In Illinois, the “elements of promissory estoppel are: a promise unambiguous in terms, with reliance thereon by the promisee, with such reliance being expected and foreseeable by the promisor, and with the promisee in fact relying on the promise to his injury.... [I]n order to invoke the doctrine, the promisee’s reliance must be reasonable and justifiable.” Geva v. Leo Burnett Company, 931 F.2d 1220, 1223 (7th Cir.1991) (quoting Vincent Di Vito, Inc. v. Vollmar Clay Products Co., 179 Ill.App.3d 325, 128 Ill.Dec. 393, 395, 534 N.E.2d 575, 577 (3d Dist.1989)). A-Abart has not produced any evidence or made an argument demonstrating that it relied to its detriment on the alleged promise by Emerson to sell it the ceiling fans. Thus, the promissory estoppel argument fails. IV. Count III of the appellant’s complaint charged Littman (1) with intentionally interfering with contractual relations between A-Abart and Emerson and (2) with intentionally interfering with A-Abart’s prospective economic advantage in its dealings with Emerson. Under Illinois law, “[t]he elements of the tort of intentional interference with contractual rights include (1) the existence of a valid and enforceable contract between the plaintiff and another, (2) the defendant’s awareness of this contractual relation, (3) the defendant’s intentional and unjustified inducement of a breach of the contract which causes a subsequent breach by the other, and (4) damages.” Mannion v. Stallings & Co., 204 Ill.App.3d 179, 149 Ill.Dec. 438, 443, 561 N.E.2d 1134, 1139 (1 Dist.1990). See also Olaf v. Christie Clinic Association and HMO, 200 Ill.App.3d 191, 146 Ill.Dec. 647, 650, 558 N.E.2d 610, 613 (4th Dist.) app. denied, 135 Ill.2d 559, 151 Ill.Dec. 385, 564 N.E.2d 840 (1990); Prudential Insurance Co. v. Van Matre, 158 Ill.App.3d 298, 110 Ill.Dec. 563, 567, 511 N.E.2d 740, 744 (Ill.App.3d Dist.), app. denied, 117 Ill.2d" }, { "docid": "11294728", "title": "", "text": "it actually upgraded the Director’s position, allowing for an inference that Rodman & Renshaw’s proffered grounds for paying Garvey a higher salary are merely pretext. Accordingly, we decline to grant summary judgment on this basis. C. Title VII Wage Discrimination Claim (Count II) To prevail on a Title VII wage discrimination claim, a plaintiff must either proffer direct evidence of intentional sex discrimination in pay, or meet the equal pay standard of the Equal Pay Act (outlined above). See, E.E.O.C. v. Sears Roebuck & Co., 839 F.2d 302, 342-43 (7th Cir.1988); American Nurses’ Association v. Illinois, 783 F.2d 716 (7th Cir.1986). Rodman & Renshaw contends that summary judgment is warranted on this claim because JaskowsM cannot establish a prima facie claim of unequal pay for equal work, and, in any event, the company has demonstrated legitimate non-discriminatory bases for any pay disparity. Because defendant raises no new arguments in seeking summary judgment on the Title VII wage claims, and because we have already found its arguments wanting, we deny Rodman & Renshaw’s motion for judgment on this claim. D. Promissory Estoppel Claim Defendants contend that no disputed facts remain regarding JaskowsM’s promissory estoppel claim. Under Illinois law, a promissory estoppel plaintiff must show that (1) defendants made an unambiguous promise, (2) plaintiff relied on the promise, (3) defendants could have expected or foreseen such reliance, and (4) plaintiff relied on the alleged promise to her detriment. See Quake Construction, Inc. v. American Airlines, Inc., 141 Ill.2d 281, 565 N.E.2d 990, 1004, 152 Ill.Dec. 308, 322 (1990) (setting forth the elements of a promissory estoppel claim). Defendants argue that the undisputed facts on each element direct a finding of summary judgment on this claim. We disagree. First, defendants maintain that JaskowsM has failed to offer evidence of an unambiguous promise. Before assessing this assertion, we must first clarify the nature of the alleged promise at issue. In her Amended Complaint, JaskowsM alleges that she relied to her detriment on defendants’ promise that when she returned to work after her pregnancy leave, she would be able to step into her former position" }, { "docid": "11117927", "title": "", "text": "alleged oral contract, entered into by the parties on December 24, 1992, was to cover a period of January 4, 1993 to December 31, 1993, with an eighteen month non-compete agreement. Integra argues that the statute of frauds bars Genin’s claims based upon this agreement. The Illinois Statute of Fraud provides: No action shall be brought ... upon any agreement that is not to be performed within the space of one year from the making thereof, unless the promise or agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith or some other person thereunto by him lawfully authorized. 740 ILCS 80/1 (West 1993). The alleged oral agreement here could not have been performed within one year of its making. Thus, the question becomes, can the Plaintiff justify taking the agreement out of the statute of frauds? On that question, Plaintiff has two arrows in its quiver, promissory estoppel and partial performance, and we shall address each in 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" }, { "docid": "3143828", "title": "", "text": "v. Economy Mechanical Industries, Inc., 606 F.2d 182, 187 (7th Cir.1979), in which we predicted, “not without some difficulty, [that] the Illinois Supreme Court would permit the plaintiff to seek recovery on a promissory estoppel theory” even though the defendant “successfully defends on the basis of the statute of frauds.” We have since become less sure of the prediction made in R.S. Bennett, observing that “there is arguably some question with respect to whether the Illinois Supreme Court would allow a party to raise the statute of frauds as a defense in an action premised upon promissory estop-pel, especially in cases arising under the U.C.C.” Evans v. Fluor Distribution Com panies, 799 F.2d 364, 368 (7th Cir.1986). See, also, Monetti, S.P.A. v. Anchor Hocking Corporation, 931 F.2d 1178, 1186 (7th Cir.1991) (summarizing arguments for and against the position taken in R.S. Bennett and noting that the question had not been resolved by the Illinois courts) and Goldstick v. ICM Realty, 788 F.2d 456, 464 (7th Cir.1986) (“We hesitate to rely on Bennett because there is a question whether it is a correct statement of Illinois law.”). We need not enter this thicket to decide whether in Illinois the doctrine of promissory estoppel can save a claim otherwise barred by the statute of frauds because A-Abart has failed to make the required showing to sustain a claim of promissory estoppel. In Illinois, the “elements of promissory estoppel are: a promise unambiguous in terms, with reliance thereon by the promisee, with such reliance being expected and foreseeable by the promisor, and with the promisee in fact relying on the promise to his injury.... [I]n order to invoke the doctrine, the promisee’s reliance must be reasonable and justifiable.” Geva v. Leo Burnett Company, 931 F.2d 1220, 1223 (7th Cir.1991) (quoting Vincent Di Vito, Inc. v. Vollmar Clay Products Co., 179 Ill.App.3d 325, 128 Ill.Dec. 393, 395, 534 N.E.2d 575, 577 (3d Dist.1989)). A-Abart has not produced any evidence or made an argument demonstrating that it relied to its detriment on the alleged promise by Emerson to sell it the ceiling fans. Thus, the" }, { "docid": "6843802", "title": "", "text": "and development of the game during the review process indicates that Milton Bradley believed a contract existed. However, Bonk was informed during his initial meeting with the company that extensive work on the game would be conducted during the review process but that consideration of the game could be canceled at any time. As an alternate ground, Bonk contends that a contract with Milton Bradley arose by promissory estoppel. To establish a claim based on promissory estoppel, Bonk must allege and prove that (1) Milton Bradley made an unambiguous promise to him, (2) he relied on that promise, (3) his reliance was expected and foreseeable by Milton Bradley, and (4) he relied on the promise to his detriment. Quake Const., Inc. v. American Airlines, Inc., 141 Ill.2d 281, 152 Ill.Dec. 308, 322, 565 N.E.2d 990, 1004 (1990). In addition, his reliance must have been reasonable and justifiable. Id. Although Milton Bradley did not make an unambiguous promise to Bonk to license the game, Bonk nonetheless assumed he had a deal. After his initial contact with the representative of Milton Bradley, Bonk immediately dismantled his own company. He terminated all marketing, promotions, and manufacturing, sold a portion of the remaining inventory at a discount, did not attend an international toy fair to promote the game, and refused all other offers and proposals from third parties to purchase the rights to the game. However, Bonk’s reliance was unreasonable and could not have been expected or foreseen by Milton Bradley. ■ He was informed at the initial meeting about the review process and the possibility that a product considered for licensing could be canceled at any time during the process. Because Bonk’s reliance was unreasonable, whether he relied to his detriment is irrelevant. There is more than sufficient evidence upon which a reasonable jury could determine that no contract existed between Bonk and Milton Bradley; therefore, the trial court did not err in denying Bonk’s motion for a new trial. Bonk argues that the district court’s limitation of his examination of a witness denied him a fair trial. We examine this contention with" }, { "docid": "11294729", "title": "", "text": "on this claim. D. Promissory Estoppel Claim Defendants contend that no disputed facts remain regarding JaskowsM’s promissory estoppel claim. Under Illinois law, a promissory estoppel plaintiff must show that (1) defendants made an unambiguous promise, (2) plaintiff relied on the promise, (3) defendants could have expected or foreseen such reliance, and (4) plaintiff relied on the alleged promise to her detriment. See Quake Construction, Inc. v. American Airlines, Inc., 141 Ill.2d 281, 565 N.E.2d 990, 1004, 152 Ill.Dec. 308, 322 (1990) (setting forth the elements of a promissory estoppel claim). Defendants argue that the undisputed facts on each element direct a finding of summary judgment on this claim. We disagree. First, defendants maintain that JaskowsM has failed to offer evidence of an unambiguous promise. Before assessing this assertion, we must first clarify the nature of the alleged promise at issue. In her Amended Complaint, JaskowsM alleges that she relied to her detriment on defendants’ promise that when she returned to work after her pregnancy leave, she would be able to step into her former position or one of comparable pay and responsibility. Amended Complaint at ¶40. In support of her claim, JaskowsM alleges that both Quinlivan and Mains, on several occasions, assured her that upon her return she would get her old job back or be placed in a comparable position. Indeed, JaskowsM offers handwritten notes ostensibly summarizing one such conversation with Mains, and tenders a letter written by Mains for JaskowsM’s file memorializing a conversation between the two regarding JaskowsM’s maternity leave. In the letter, Mains notes that he informed JaskowsM that the company would need to fill her position in her absence. Plaintiffs Exh. 5. He then specifically states that he “also reiterated to Susan [JaskowsM] that she will return to her previous position or to a position of comparable compensation and responsibility.” Id. (emphasis in the original). Finally, Karmin recalls that Mains told him that Rodman & Renshaw would find JaskowsM a comparable job upon her return—further buttressing JaskowsM’s claims that defendants made the alleged assurances. Karmin Dep. at 44, 46. Defendants argue that even if they" }, { "docid": "11504239", "title": "", "text": "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. Board of Educ. of Sch. Dist. 189, 152 Ill.App.3d 187, 201, 105 Ill.Dec. 195, 204, 503 N.E.2d 1201, 1210 (5th Dist.1987) (citation omitted). 2. To prevail on a claim for promissory estoppel, Midway must prove each of the foUowing elements by a preponderance of the evidence: (1) Northwest made an unambiguous promise to Midway; (2) Midway reasonably rehed on such promise; (3) Midway’s rebanee was expected and foreseeable by Northwest; and (4) Midway reasonably relied on Northwest’s promise to Midway’s detriment. Quake, 141 Ill.2d at 309-10, 152 Ill.Dec. at 322, 565 N.E.2d at 1004; Vajda v. Arthur Andersen & Co., 253 Ill.App.3d 345, 356, 191 Ill.Dec. 965, 972, 624 N.E.2d 1343, 1350 (1st Dist.), appeal denied, 153 Ill.2d 570, 191 Ill.Dec. 630, 624 N.E.2d 818 (1993); Geva v. Leo Burnett Co., 931 F.2d 1220, 1223 (7th Cir.1991); Jaskowski v. Rodman & Renshaw, Inc., 842 F.Supp. 1094, 1100 (N.D.Ill.1994). 3. Midway bears the burden of proving that it reUed on the alleged promise, and that its reUance was reasonable and justified. Quake, 141 Ill.2d at 309-10," }, { "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": "4407529", "title": "", "text": "adverted to — nowhere does Lamaster assert that the Program sought Lamaster’s relinquishment of his old job in exchange for the promise of permanence. Although we find the complaint deficient, the arguments in Lamaster’s memorandum that he was lured away from an existing job in order to accept the new offer (Plaintiff’s response at 15) and that the “promise of permanent employment was specifically intended to induce [him] to forego” his prior position (id. at 11) contain the kernel of a claim that the promise of permanent employment was indeed bargained for, and therefore we dismiss Count III but grant Lamaster the opportunity to amend his complaint to include an allegation of valid consideration supporting the alleged oral contract. B. Promissory Estoppel In Count II, Lamaster asserts that he is entitled to monetary damages and reinstatement under a promissory estoppel theory. Illinois recognizes the doctrine of promissory estoppel and will sustain a claim based on this theory if four elements are present: First, the plaintiff must allege an unambiguous promise. Second, there must have been reliance on this promise. Third, the reliance must have been expected and foreseeable. Finally, there must be some injury resulting form the reliance. Simmons, 727 F.Supp. at 443 (citing Patkus v. Sangamon-Cass Consortium, 769 F.2d 1251, 1264 (7th Cir.1985)); Quake Construction, Inc. v. American Airlines, Inc., 141 Ill.2d 281, 309-10, 152 Ill.Dec. 308, 322, 565 N.E.2d 990, 1004 (1990) Illinois Valley Asphalt, Inc. v. J.F. Edwards Construction Co., 90 Ill.App.3d 768, 770, 45 Ill.Dec. 876, 878, 413 N.E.2d 209, 211 (3d Dist.1980). The promissory estoppel doctrine is generally invoked in situations in which the plaintiff is unable to prove the existence of an actual contract. This court has in the past expressed some hesitation regarding the applicability of the promissory estoppel theory in the employment contract context, see Massouras v. Litton Industrial Products, Inc., No. 84 C 2618, 1985 WL 9361 at 2 (N.D.Ill. Feb. 4, 1985), for a permissive view of that doctrine would likely undermine the presumption of employment at will, to which Illinois courts have historically adhered. Our doubts have recently been" } ]

[ { "docid": "9828613", "title": "", "text": "the weighing process, not the use of duplicative factors.”). Accordingly, Stringer does not make Lowenfield’s analysis inapplicable here. And Lowenfield suggests that a duplicative aggravating factor need not invalidate a sentence. I therefore agree with the Fifth Circuit in Flores that, while the four statutory aggravating factors in § 848(n)(l) all address the defendant’s mental state, it is not necessarily unconstitutional or otherwise a violation of the statute to submit two of them to a jury imposing sentence on a defendant, because they can involve different conduct and mental states, as they did in this case. They are not inherently and always duplicative. And even if they are duplicative, duplicative aggravators are not necessarily invalid aggra vators requiring reversal of the sentence under Stringer. Finally, even assuming the duplication was error, I agree with the Eleventh Circuit’s observation in United States v. Chandler, 996 F.2d 1073, 1093 (11th Cir.1993), cert. denied, - U.S. -, 114 S.Ct. 2724, 129 L.Ed.2d 848 (1994), that any concern that the jury would be “influenced in its weighing process by the number of aggravating factors” is alleviated by appropriate instructions making clear “that the weighing process was not a mechanical one and that different factors could be given different weight.” Such an instruction was given in this case: In carefully weighing the various factors at issue in this case, you are called upon to make a unique, individualized judgment about the appropriateness of sentencing the defendant to death. This is not a mechanical process, neither is it determined by raw numbers. You do not simply count factors. Instead, you must consider the quality of the factors. In short, what is called for in weighing the various factors is not mathematical skills, but your careful, considered and mature judgment. At this final, weighing stage in the process, you are not called upon simply to find relevant factors. You are called upon to decide whether the defendant shall live or die. R. Vol. 39 at 346; see also Bradley, 880 F.Supp. at 289 n. 8 (noting that a curative instruction might countervail “any unfairness inherent in the" } ]

[ { "docid": "16625392", "title": "", "text": "alone was sufficient to support imposition of the death penalty and that this alleged error unconstitutionally tipped the scales in favor of a death sentence. In submitting the case to the jury for a sentencing determination, the court instructed the jury that it should impose the death penalty only if it determined that Jackson had the requisite mental state. The court explained that the federal death penalty statute permitted imposition of death only if the defendant (1) intentionally killed the victim, (2) intentionally caused serious bodily injury that resulted in the victim’s death, (3) intentionally participated in an act contemplating that the life of a person would be taken, or (4) intentionally engaged in an act of violence with reckless disregard for human life. The court instructed that each member of the jury had to agree on the same intent factor regarding Jackson’s conduct in order to consider imposing the sentence of death. The jury unanimously found that the government had proved all four types of intent. It also found that the government had proved all aggravating factors and that the aggravating factors were not outweighed by mitigating factors that any one of them found. It thereupon unanimously recommended the sentence of death. In arguing that the district court’s submission of all four intent factors to the jury unconstitutionally skewed the weighing process toward the death penalty, Jackson relies on our decision in United States v. Tipton, 90 F.Sd 861 (4th Cir. 1996), which held that the submission of four different intent factors to the jury for consideration as aggravating factors “runs a clear risk of skewing the weighing process in favor of the death penalty and thereby causing it to be imposed arbitrarily, hence unconstitutionally.” Id. at 899. Jackson’s reliance on Tipton, however, is misplaced. The prosecution in Tipton was for violation of 21 U.S.C. § 848, under which the jury is to consider the type of intent as an aggravating factor during the penalty phase of the trial. The court’s reasoning in Tipton focused on the potential that submitting all four intent factors could skew the weighing process" }, { "docid": "16625393", "title": "", "text": "all aggravating factors and that the aggravating factors were not outweighed by mitigating factors that any one of them found. It thereupon unanimously recommended the sentence of death. In arguing that the district court’s submission of all four intent factors to the jury unconstitutionally skewed the weighing process toward the death penalty, Jackson relies on our decision in United States v. Tipton, 90 F.Sd 861 (4th Cir. 1996), which held that the submission of four different intent factors to the jury for consideration as aggravating factors “runs a clear risk of skewing the weighing process in favor of the death penalty and thereby causing it to be imposed arbitrarily, hence unconstitutionally.” Id. at 899. Jackson’s reliance on Tipton, however, is misplaced. The prosecution in Tipton was for violation of 21 U.S.C. § 848, under which the jury is to consider the type of intent as an aggravating factor during the penalty phase of the trial. The court’s reasoning in Tipton focused on the potential that submitting all four intent factors could skew the weighing process in favor of the death penalty by allowing cumulative findings. By contrast, Jackson was prosecuted under 18 U.S.C. § 924(j), for which the court uses the sentencing procedures outlined in 18 U.S.C. §§ 3591-3598. To find the death penalty under these sections, the jury must first find one of the four types of intent as a threshold matter, and unless the jury finds one of the four types of intent, the defendant is not eligible for the death penalty. See 18 U.S.C. § 8591. Only after crossing this threshold does the jury reach the weighing of aggravating and mitigating factors. The findings regarding intent, therefore, play no role in the weighing process, which is done when the jury considers aggravating and mitigating circumstances. Thus, while the intent in Tipton actually operates as an aggravating factor, the intent under 18 U.S.C. § 3591 operates only as a threshold to reach the aggravating factors. Accordingly, we conclude that the district court did not err in submitting all four types of intent for the jury’s consideration. Whether the" }, { "docid": "9886265", "title": "", "text": "them as aggravating factors. Under the FDPA, the mental state factors are gatekeepers— once the government proves any one of the four factors, they are not supposed to have further effect on the sentencing phase. The defendants, however, contend that the NOIs in this case misrepresent the role of the § 3591(a)(2) factors and that a jury cannot help but confuse the mental state factors with aggravating factors presented later in the sentencing phase. As an initial matter, it does not appear that the FDPA requires the government to include allegations regarding the § 3591(a)(2) factors at all. Section 3591 does state that in order to return a death sentence, the jury must find that the defendant possessed one of the listed mental states “at the hearing under section 3593” — that is, at the sentencing hearing. However, § 3593(a), which requires the government to produce NOIs, does not specifically require that NOIs list the § 3591(a)(2) factor or factors the government intends to prove. But the defendants do not argue that the NOIs are defective for listing the mental states that the government will try to prove. Instead, they argue that the NOIs so misrepresent the role of the § 3591(a)(2) factors that a jury cannot help but confuse the threshold mental state factors with aggravating factors presented later in the sentencing phase. This challenge lacks merit. As noted above, the NOIs will not be turned over to the jury, so any ambiguities they contain can be obviated with proper jury instructions. Moreover, the pertinent case law indicates that a properly instructed jury can be expected to separate its findings regarding threshold mental state factors from its weighing of aggravating and mitigating factors. See United States v. Webster, 162 F.3d 308, 323-24 (5th Cir.1998) (upholding FDPA death sentence where jury was clearly instructed to separate its threshold mental state findings from its weighing of aggravating and mitigating factors); Cooper, 91 F.Supp.2d at 109 (citing Webster and holding that even “[i]f the jury finds one or all four of the factors, there is no risk of skewing because the jury" }, { "docid": "9886315", "title": "", "text": "87 F.3d 1136 (10th Cir.1996)). Nguyen agreed, stating that \"while the § 3591(a)(2) mental states act as threshold or 'gateway' findings, there is nothing in the plain language of the statute limiting them exclusively to that role.” Id. at 1540. In this case, however, the government does not plan to introduce mental state evidence as a non-statutory aggravating factor, and the court does not need to reach the issue of whether the § 3591(a)(2) mental state factors can be used as aggravating factors as well. . The government does not contend that the FDPA prevents the defendants from introducing evidence of their mental state as a mitigating factor, nor does the court believe that this is the case. Cf. Nguyen 928 F.Supp. at 1539 (\"most evidence is subject to a dual interpretation, and [the government] should not be foreclosed from presenting the evidence as aggravating simply because Nguyen intends to argue that it is mitigating”) (citing Tuilaepa v. California, 512 U.S. 967, 114 S.Ct. 2630, 129 L.Ed.2d 750 (1994)). . Because the defense argues its position on multiple mental state allegations in part by way of analogy with Anti Drug Abuse Act (\"ADAA”) cases, it should be noted that while the FDPA and ADAA are similar in many ways, they differ in their treatment of mental state. As explained above, the four subsections of 18 U.S.C. § 3591(a)(2) list threshold mental state factors. Four similar (but not identical) mental states appear in 21 U.S.C. § 848(n)(l), but there they appear in a list of \"aggravating factors” to be weighed by the jury in determining whether a death sentence is appropriate. The defense cites several § 848 cases holding that the government cannot submit evidence to prove more than one of the four alternate mental states as aggravating factors under 21 U.S.C. § 848(n)(l). See, e.g., United States v. Tipton, 90 F.3d 861, 899 (4th Cir.1996) (jury instruction \"that permits and results in cumulative findings of more than one of the (n)(l) circumstances as an aggravating factor is constitutional error”); McCullah, 76 F.3d at 1111; United States v. Beckford, 968 F.Supp." }, { "docid": "6083462", "title": "", "text": "most evidence is subject to a dual interpretation, and it should not be foreclosed from presenting the evidence as aggravating simply because Nguyen intends to argue that it is mitigating (Doc. 97 at 17). See Tuilaepa, — U.S. at -, 114 S.Ct. at 2638-39 (rejecting argument that sentencer must be instructed how to weigh a particular fact in the sentencing decision). 2. Defendant’s Post-McCullah Contentions (Doc. 106) In his supplemental post-McCullah brief, Nguyen raises two more subtle duplication arguments requiring further discussion. Nguyen argues that because the § 3591(a)(2)(C) and (D) mental states are not aggravating factors under the statute, but rather are set apart as “gateway” eligibility findings, the government should be limited to using them as such, and should not be allowed to use them as independent aggravating factors. He argues that McCullah, which touched upon some of the differences between 21 U.S.C. § 848 and 18 U.S.C. § 3591, supports his argument by implication (Doc. 106 at 4-6). McCullah rejected the defendant’s argument that the § 848(n)(l) mental state factors are mere eligibility factors which cannot be weighed as aggravating factors. Looking to the plain language of the statute, the court noted that § 848(n)(l) is listed along with eleven other factors, § 848(n)(2)-(12), under the subsection heading of “Aggravating factors for homicide.” McCullah, 76 F.3d at 1109. It also noted that § 848(k) clearly contemplates weighing the (n)(l) factors along with the (n)(2)-(12) aggravating factors. Id. Nguyen nevertheless argues that McCullah implies that a different result would be required if § 3591 was at issue: Because Congress, as with the section 848 scheme, could have, but did not, denominate the mental states outlined in section 3591(a)(2) as aggravating circumstances, but instead explicitly limited these considerations to threshold or gateway findings, the government cannot do an end run around the intent of Congress by alleging mental states as both a threshold requirement for death-eligibility in the first instance and as a non-statutory aggravating circumstance. (Doe. 106 at 5-6) (emphasis in original). The court cannot read McCullah as broadly as Nguyen would like. While the court agrees that" }, { "docid": "4952072", "title": "", "text": "alternative circumstances, all of which do involve different forms of criminal intent, runs a clear risk of skewing the weighing process in favor of the death penalty and thereby causing it to be imposed arbitrarily, hence unconstitutionally.” Id. at 899. The Court noted that a proper instruction would have advised the jury that it could only find one of the intent factors as a basis for its findings. See id.; see also U.S. v. McCullah, 76 F.3d 1087, 1111 (10th Cir.1996). The FDPA differs from the ADAA in that the intent elements are not aggravating factors to be weighed against mitigating factors. If the jury finds one or all four of the factors, there is no risk of skewing because the jury finds intent, and then starts with a clean slate in evaluating separate aggravating factors. See Webster, 162 F.3d at 355 (“[Section] 3591(a) does not set forth aggravating factors, but rather serves as a preliminary qualification threshold. The fact that a defendant could satisfy more than one of these via the same course of action does not, therefore, constitute impermissible double counting.”). Cooper’s argument is unavailing. E. Victim Impact The government’s notice of intent lists three victim impact aggravating factors pertaining to each of the three victims of the capital offenses. The victim impact statements are the same for the three victims, except the name of the victim and the family members differ. For example, the victim impact statement for Emory Allen Evans, is as follows: The defendant caused injury, harm and loss to the friends and family of Emory Allen Evans because of Emory Allen Evans’ personal characteristics as an individual human being and the impact of his death upon those persons. Emory Allen Evans was a beloved member of a family that included a father, a mother, a stepfather, a stepmother and four sisters, who have deeply missed his companionship, love and support since his death. The government will present information concerning the effect of the offense on Emory Allen- Evans and his family, which may include oral testimony, a victim impact statement that identifies Emory Allen" }, { "docid": "4952070", "title": "", "text": "a sentence of death is justified, the FDPA requires the jury to find that the defendant (1) intentionally killed the victim, (2) intentionally inflicted serious bodily injury that resulted in the death of the victim, (3) intentionally participated in an act, contemplating that the life of a person would be taken or intending that lethal force would be used, and the victim died as a result, or (4) intentionally and specifically engaged in an act of violence, knowing that the act created a grave risk of death to a person, such that participation in the act constituted a reckless disregard for human life and the victim died as a result. See 18 U.S.C. § 3591(a)(2). Cooper complains that the government’s “notice [of intent to seek the death penalty] attributes four separate mental states to Mr. Cooper but does not specify which particular mental state occurred at the time the capital eligible offenses occurred.” Without citing any case authority, he argues that the “Fifth and Eighth Amendments to the United States Constitution require that the government elect which mental state it contends motivated [Cooper’s] conduct and hence qualifies [Cooper] for the sentence of death.” Mot. at 74. If the jury were permitted to find that more than one of the intent factors in section 3591(a)(2) existed, and then was subsequently permitted to weigh those factors as aggravating circumstances, this Court might agree with Cooper. In United States v. Tipton, the Fourth Circuit held it was error for the trial court to instruct the jury that it must find “at least one” of the statutory intent elements listed in the ADAA. 90 F.3d 861 (4th Cir.1996). Under the ADAA, the four intent elements (which are similar to the ones enumerated in the FDPA) are aggravating factors and are considered with other aggravating factors when weighed by the jury against mitigating factors. The jury in Tipton, which recommended a death sentence, found that all four intent circumstances existed and then weighed all four with the other aggravating factors found to exist. The Fourth Circuit held that “[t]o allow cumulative findings of these intended" }, { "docid": "7865177", "title": "", "text": "a penalty of death must stop; once the jury finds an (n)(l) factor, it must later weigh that factor (along with other aggra-vators) against any mitigating factors.” United States v. Flores, 63 F.3d 1342, 1370 (5th Cir.1995). The district court’s instructions followed the procedure set forth in 21 U.S.C. § 848(k). In Step One, Honken’s jury was instructed to consider “eligibility aggravating factors,” requiring a determination of whether Honken had the requisite criminal intent, as set forth in § 848(n)(l). In Honken’s case, this determination required the jury to choose whether: (1) Honken intentionally killed the victims, or (2) Honken intentionally engaged in conduct intending the victims be killed. The jury unanimously determined Honken intentionally killed each of the victims. In Step Two, the jury determined the existence of “statutory aggravating factors,” as set forth in § 848(n). The jury unanimously found at least one statutory aggravating factor applied to each of the victims. Step Three required the jury to determine the existence of “non-statutory aggravating factors.” The jury found the existence of each non-statutory aggravating factor alleged. The jury was then instructed to determine the existence of any mitigating factors in Step Four. Finally, the jury was required to weigh the aggravating factors found in Steps One, Two, and Three, and the mitigating factors found in Step Four, to determine whether death was the appropriate punishment. Honken asserts the “intent factors” set forth in § 848(n)(l) are not really aggrava-tors at all, but merely pre-conditions to the consideration of the death sentence. To support his argument, Honken points out, under the FDPA, intent is considered to be a “gateway” finding only with no further weight given to intent when weighing of aggravating and mitigating factors takes place. Honken contends the doctrine of constitutional avoidance requires an interpretation of the ADAA consistent with the FDPA. Honken further claims the “intent factors” are constitutionally infirm because they apply to every defendant eligible for the death penalty, and do not narrow the universe of defendants eligible for the death penalty. This court has not directly addressed whether it is constitutional for intent" }, { "docid": "23000257", "title": "", "text": "course those for which it then recommended death sentences. Appellants contend that allowing such a cumulation of “multiple overlapping aggravating factors, based upon a single element of the crime” to be considered in the weighing process unconstitutionally skewed the process in favor of death. And they argue that skewing was further exacerbated by the court’s instruction to the jury that having already necessarily found in the guilt phase that each of the murders in issue was intentional, the purpose of requiring a re-finding of at least one of the specific intentions embodied in the (A)-(D) circumstances was simply “to insure that this factor was considered by you at the first phase, or guilt phase.” JA 4793. We agree with appellants that the district court’s verdict submission and instructions respecting the purpose of the (n)(l) faetor(s) and their proper application by the sentencing jury was erroneous. The court’s instructions misconstrued the essential purpose of the specific (A)-(D) circumstances set out as discrete alternative bases for making the required (n)(l) finding. That purpose, as earlier discussed, is not the anomalous one of merely re-confirming (or, by not confirming, impeaching?) the jury’s earlier finding of intent in the guilt phase. It is instead to focus the jury’s attention upon the different levels of moral culpability that these specific circumstances might reasonably be thought to represent, thereby channeling jury discretion in the weighing process. To allow cumulative findings of these intended alternative circumstances, all of which do involve different forms of criminal intent, runs a clear risk of skewing the weighing process in favor of the death penalty and thereby causing it to be imposed arbitrarily, hence unconstitutionally. Stringer v. Black, 503 U.S. 222, 230-32, 112 S.Ct. 1130, 1136-37, 117 L.Ed.2d 367 (1992). On this basis, the Tenth Circuit recently has vacated a death sentence imposed for a § 848(e) capital murder where the district court had erroneously, in the Tenth Circuit’s view, allowed the jury to find both the (C) and (D) circumstances to exist as (n)(l) aggravating factors. McCullah, 76 F.3d at 1111 (“while the factors are not identical per se, [one]" }, { "docid": "7865178", "title": "", "text": "aggravating factor alleged. The jury was then instructed to determine the existence of any mitigating factors in Step Four. Finally, the jury was required to weigh the aggravating factors found in Steps One, Two, and Three, and the mitigating factors found in Step Four, to determine whether death was the appropriate punishment. Honken asserts the “intent factors” set forth in § 848(n)(l) are not really aggrava-tors at all, but merely pre-conditions to the consideration of the death sentence. To support his argument, Honken points out, under the FDPA, intent is considered to be a “gateway” finding only with no further weight given to intent when weighing of aggravating and mitigating factors takes place. Honken contends the doctrine of constitutional avoidance requires an interpretation of the ADAA consistent with the FDPA. Honken further claims the “intent factors” are constitutionally infirm because they apply to every defendant eligible for the death penalty, and do not narrow the universe of defendants eligible for the death penalty. This court has not directly addressed whether it is constitutional for intent to be considered both in terms of eligibility and also as an aggravating factor. Several other circuits have squarely rejected Honken’s argument. For example, in United States v. McCullah, the Tenth Circuit observed the “clear language” of the ADAA provides for intent to be considered both as an eligibility factor and as an aggravating factor. McCullah, 76 F.3d at 1108-09. The McCullah court reasoned: The fact that Congress changed the capital sentencing scheme for other crimes six years after the adoption of § 848(e) et seq. does not alter the plain language interpretation of § 848(e). The [FDPA] created a new capital sentencing scheme for many federal offenses, but significantly did not alter § 848(e). Even had the [FDPA] been an amendment to § 848, it would merely indicate that Congress can, and did, alter the federal capital sentencing scheme for drug con spiracies. However, this does not in any way indicate any error in the prior scheme; there is more than one proper method of structuring a capital sentencing scheme. Id. at 1109 (internal" }, { "docid": "16625394", "title": "", "text": "in favor of the death penalty by allowing cumulative findings. By contrast, Jackson was prosecuted under 18 U.S.C. § 924(j), for which the court uses the sentencing procedures outlined in 18 U.S.C. §§ 3591-3598. To find the death penalty under these sections, the jury must first find one of the four types of intent as a threshold matter, and unless the jury finds one of the four types of intent, the defendant is not eligible for the death penalty. See 18 U.S.C. § 8591. Only after crossing this threshold does the jury reach the weighing of aggravating and mitigating factors. The findings regarding intent, therefore, play no role in the weighing process, which is done when the jury considers aggravating and mitigating circumstances. Thus, while the intent in Tipton actually operates as an aggravating factor, the intent under 18 U.S.C. § 3591 operates only as a threshold to reach the aggravating factors. Accordingly, we conclude that the district court did not err in submitting all four types of intent for the jury’s consideration. Whether the jury found one type of intent or all four would not, under the instructions given, skew the weighing process. The weighing process involved only aggravating and mitigating circumstances which were distinct from the intent finding. XIII Jackson next contends that the district court erred in submitting the statutory aggravating circumstance of a murder committed after “substantial planning and premeditation” because that factor was “vague and constitutionally void” and therefore “faked sufficiently to channel the jury’s discretion.” Our decision in United States v. Tipton, 90 F.3d 861 (4th Cir. 1996), forecloses this argument. In Tip-ton, we rejected a vagueness challenge to the same aggravating factor challenged here as that factor was used in 21 U.S.C. § 848(n)(8). See 18 U.S.C. § 3592(c)(9). In Tipton, we concluded that “substantial” “could only have been understood by the jury to mean a higher degree of planning than would have the words ‘planning and premeditation’ alone — i.e., more than the minimum amount sufficient to commit the offense.” Id. at 896. We concluded that this meaning was not unconstitutionally vague." }, { "docid": "9886266", "title": "", "text": "defective for listing the mental states that the government will try to prove. Instead, they argue that the NOIs so misrepresent the role of the § 3591(a)(2) factors that a jury cannot help but confuse the threshold mental state factors with aggravating factors presented later in the sentencing phase. This challenge lacks merit. As noted above, the NOIs will not be turned over to the jury, so any ambiguities they contain can be obviated with proper jury instructions. Moreover, the pertinent case law indicates that a properly instructed jury can be expected to separate its findings regarding threshold mental state factors from its weighing of aggravating and mitigating factors. See United States v. Webster, 162 F.3d 308, 323-24 (5th Cir.1998) (upholding FDPA death sentence where jury was clearly instructed to separate its threshold mental state findings from its weighing of aggravating and mitigating factors); Cooper, 91 F.Supp.2d at 109 (citing Webster and holding that even “[i]f the jury finds one or all four of the factors, there is no risk of skewing because the jury finds intent, and then starts with a clean slate in evaluating separate aggravating factors”); Battle, 979 F.Supp. at 1468 (“Allowing the jury at sentencing to determine whether the section 3591 factors had been proven did not unconstitutionally skew the weighing process in this case in favor of death.”). As a result, the defendants’ motion to strike from the NOIs the government’s allegations regarding the threshold intent factors will be denied. VI. Constitutional adequacy of § 3591(a)(2)(A) and (C). After challenging the inclusion of the threshold mental state factors in the NOIs, the defendants make three attacks upon the individual mental state factors alleged by the government in the NOIs. They first argue that the four threshold mental state factors listed in § 3591(a)(2)(A-D) are unconstitutionally overbroad. In support of their argument, the defendants cite four Supreme Court cases: Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980); Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988); Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d" }, { "docid": "10519635", "title": "", "text": "intentional conduct intending that the victim be killed. See 21 U.S.C. § 848(n)(l)(C). Any intentional conduct aimed at producing death is by definition conduct done with knowledge of grave risk of death. While the factors are not identical per se, the (n)(l)(C) factor necessarily subsumes the (n)(l)(D) factor. Such double counting of aggravating factors, especially under a weighing scheme, has a tendency to skew the weighing process and creates the risk that the death sentence will be imposed arbitrarily and thus, unconstitutionally. [Wjhen the same aggravating factor is counted twice, the “defendant is essentially condemned ‘twice for the same culpable act,’” which is inherently unfair. While the federal statute at issue is a weighing statute which allows the jury to accord as much or as little weight to any particular aggravating factor, the mere finding of an aggravating factor cannot but imply a qualitative value to that factor. When a sentencing body is asked to weigh a factor twice in its decision, a reviewing court cannot “assume it would have made no difference if the thumb had been removed from death’s side of the scale.” ... We hold that the use of duplicative aggravating factors creates an unconstitutional skewing of the weighing process which necessitates a reweighing of the aggravating and mitigating factors. Id. at 1111-12 (citations omitted, emphasis added). The court finds such reasoning applicable and persuasive in this case. The government concedes that “overlapping mental states cannot be found by the jury as separate aggravating factors.” Government’s Brief (Doc. # 294) at 4. The government, however, maintains that it is premature for the court to consider this issue at this time, and suggests that: (1) the court instruct the jury that it may only find one of the two statutory factors, but not both; or (2) the government be permitted to elect, at the close of evidence during the penalty phase, one of the two factors for the jury to consider. The court finds that one of the two duplicative aggravating factors must be stricken sufficiently in advance of trial to allow Mr. Glover reasonable notice. The government" }, { "docid": "4952069", "title": "", "text": "that [other crimes have been committed by the defendant]. That the jury may find it relatively easy, based on its guilty verdict, to find the existence of this factor does not unfairly tip the scales toward death.” Frank, 8 F.Supp.2d at 276. Rather than allow the jurors to speculate during sentencing how or whether it should consider other crimes for which it has already found Cooper guilty beyond a reasonable doubt, the Court will instruct them that these crimes may be weighed in aggravation as evidence of pri- or criminal activity. Of course, if the jury finds Cooper not guilty of any of the seven offenses charged in the indictment, the jury can not consider that offense in aggravation and the offense must be struck from the government’s notice of intent. See McVeigh, 944 F.Supp. 1478 (noting that permitting the jury to find as an aggravating factor an offense for which the defendant has been acquitted would result in an inconsistent verdict). D. Intent Factors Before the jury may consider aggravating factors in determining whether a sentence of death is justified, the FDPA requires the jury to find that the defendant (1) intentionally killed the victim, (2) intentionally inflicted serious bodily injury that resulted in the death of the victim, (3) intentionally participated in an act, contemplating that the life of a person would be taken or intending that lethal force would be used, and the victim died as a result, or (4) intentionally and specifically engaged in an act of violence, knowing that the act created a grave risk of death to a person, such that participation in the act constituted a reckless disregard for human life and the victim died as a result. See 18 U.S.C. § 3591(a)(2). Cooper complains that the government’s “notice [of intent to seek the death penalty] attributes four separate mental states to Mr. Cooper but does not specify which particular mental state occurred at the time the capital eligible offenses occurred.” Without citing any case authority, he argues that the “Fifth and Eighth Amendments to the United States Constitution require that the government" }, { "docid": "6083463", "title": "", "text": "eligibility factors which cannot be weighed as aggravating factors. Looking to the plain language of the statute, the court noted that § 848(n)(l) is listed along with eleven other factors, § 848(n)(2)-(12), under the subsection heading of “Aggravating factors for homicide.” McCullah, 76 F.3d at 1109. It also noted that § 848(k) clearly contemplates weighing the (n)(l) factors along with the (n)(2)-(12) aggravating factors. Id. Nguyen nevertheless argues that McCullah implies that a different result would be required if § 3591 was at issue: Because Congress, as with the section 848 scheme, could have, but did not, denominate the mental states outlined in section 3591(a)(2) as aggravating circumstances, but instead explicitly limited these considerations to threshold or gateway findings, the government cannot do an end run around the intent of Congress by alleging mental states as both a threshold requirement for death-eligibility in the first instance and as a non-statutory aggravating circumstance. (Doe. 106 at 5-6) (emphasis in original). The court cannot read McCullah as broadly as Nguyen would like. While the court agrees that the § 3591(a)(2) mental states act as threshold or “gateway” findings, there is nothing in the plain language of the statute limiting them exclusively to that role. Section 3593(d) allows for consideration of “any other aggravating factor for which notice has been provided.” 18 U.S.C. § 3593(d) (emphasis added). Nor does the court glean anything from the McCullah opinion implying that this use is improper. Nguyen also argues that McCullah “makes it clear that the government cannot allege the mental state twice — as both a threshold finding and a non-statutory aggravating circumstance — without creating an unconstitutional duplication which improperly skews the weighing process in favor of death” (Doc. 106 at 6). The court disagrees. McCullah did hold that under a “weighing” statute, such as § 848 and the one at issue here, the government may not allege duplicative aggravating factors. McCullah, 76 F.3d at 1111-12. While holding that the government’s allegation of (n)(l)(C) and (n)(1)(D) mental states was improperly duplicative, that holding was clearly grounded on the fact that those mental states functioned" }, { "docid": "7865174", "title": "", "text": "F.3d 543, 549 (8th Cir.2005) (en banc); Fed.R.Crim.P. 51(b) and 52(b). In Cuervo, we held a district court’s failure to give such a unanimity instruction under § 848(c)(2)(A)’s “five or more other persons” provision was not plain error. Cuervo, 354 F.3d at 995. The district court did not plainly err by failing to give such an instruction in Honken’s case. G. Intent as an Eligibility Factor and an Aggravating Factor Honken contends the district court erred in instructing the jury to weigh Honken’s intent as an aggravating factor, when such intent was properly considered only as a threshold or “gateway” factor for death penalty eligibility. Honk-en argues (1) the ADAA should set forth the same punishment scheme as the FDPA, which considers intent only as a “gateway” factor for death penalty eligibility; and (2) the ADAA is constitutionally infirm because the ADAA fails adequately to narrow the field of defendants who may receive the death penalty. “We review the district court’s jury instructions for abuse of discretion, [affirming] [i]f the instructions, taken as a whole, fairly and adequately submitted the issues to the jury[.]” United States v. Lalley, 257 F.3d 751, 755 (8th Cir.2001). “We review federal constitutional questions de novo.” United States v. Bates, 77 F.3d 1101, 1104 (8th Cir.1996) (citation omitted). “To withstand constitutional scrutiny, an aggravating factor which makes the defendant eligible for the death penalty must not apply to every defendant convicted of a murder, but instead only to a subclass of murder defendants, and it must not be unconstitutionally vague.” United States v. Paul, 217 F.3d 989, 1001 (8th Cir.2000) (citation omitted). Title 21 U.S.C. § 848(k) provides: The jury ... shall return special findings identifying any aggravating factors set forth in subsection (n) of this section, found to exist. If one of the aggravating factors set forth in subsection (n)(l) of this section and another of the aggravating factors set forth in paragraphs (2) through (12) of subsection (n) of this section is found to exist, a special finding identifying any other aggravating factor for which notice has been provided under subsection (h)(1)(B) of" }, { "docid": "4952071", "title": "", "text": "elect which mental state it contends motivated [Cooper’s] conduct and hence qualifies [Cooper] for the sentence of death.” Mot. at 74. If the jury were permitted to find that more than one of the intent factors in section 3591(a)(2) existed, and then was subsequently permitted to weigh those factors as aggravating circumstances, this Court might agree with Cooper. In United States v. Tipton, the Fourth Circuit held it was error for the trial court to instruct the jury that it must find “at least one” of the statutory intent elements listed in the ADAA. 90 F.3d 861 (4th Cir.1996). Under the ADAA, the four intent elements (which are similar to the ones enumerated in the FDPA) are aggravating factors and are considered with other aggravating factors when weighed by the jury against mitigating factors. The jury in Tipton, which recommended a death sentence, found that all four intent circumstances existed and then weighed all four with the other aggravating factors found to exist. The Fourth Circuit held that “[t]o allow cumulative findings of these intended alternative circumstances, all of which do involve different forms of criminal intent, runs a clear risk of skewing the weighing process in favor of the death penalty and thereby causing it to be imposed arbitrarily, hence unconstitutionally.” Id. at 899. The Court noted that a proper instruction would have advised the jury that it could only find one of the intent factors as a basis for its findings. See id.; see also U.S. v. McCullah, 76 F.3d 1087, 1111 (10th Cir.1996). The FDPA differs from the ADAA in that the intent elements are not aggravating factors to be weighed against mitigating factors. If the jury finds one or all four of the factors, there is no risk of skewing because the jury finds intent, and then starts with a clean slate in evaluating separate aggravating factors. See Webster, 162 F.3d at 355 (“[Section] 3591(a) does not set forth aggravating factors, but rather serves as a preliminary qualification threshold. The fact that a defendant could satisfy more than one of these via the same course of" }, { "docid": "23426776", "title": "", "text": "jury may find an aggravating factor that duplicates a finding made at the guilt phase does not render the capital statute unconstitutional. Lowenfield, 484 U.S. at 246, 108 S.Ct. at 555. The statutory scheme of Section 848 satisfies the requirements of Lowenfield. Initially, the statute requires the jury to find that the defendant intentionally committed homicide in connection with large scale drug trafficking. The statute does not embrace anyone who committed murder, but only those who did so in connection with a continuing criminal enterprise. Thus, Section 848(e) sufficiently narrows the class of death eligible defendants at the guilt phase. Moreover, Section 848 requires that the jury find at least one other aggravating factor from the list of (n)(2)~ (n)(12) before the death penalty can be imposed. The statute also requires the jury to consider any mitigating circumstances and allows the jury to weigh the aggravating and mitigating factors. This is all that Lowenfield requires. Nevertheless, Chandler suggests that the present ease is distinguishable from Lowenfield because Section 848(e) requires the jury to weigh the factors while the statute in Lowenfield did not. Chandler posits that the jury will be influenced in its weighing process by the number of aggravating factors. Although the Supreme Court has observed that the difference between a weighing statute and a non-weighing statute is “not one of ‘semantics’ ”, Stringer v. Black, —- U.S.-,-, 112 S.Ct. 1130, 1137, 117 L.Ed.2d 367 (1992), we -have previously rejected the kind of argument Chandler now makes. Johnson v. Singletary, 991 F.2d 663, 669 (11th Cir.1993) (per curiam). Further, any such distinction was erased by the district court’s instructions. The court’s instructions made clear that the weighing process was not a mechanical one and that different factors could be given different weight. Thus, the jury was adequately instructed that it should not reach a decision based on the number of aggravating or mitigating factors. Accordingly, the scheme of Section 848(e) was not improperly skewed towards a sentence of death. 8. Prosecutor’s closing arguments Chandler argues that the prosecutor made four improper remarks during closing argument at the sentencing hearing." }, { "docid": "22591086", "title": "", "text": "physical abuse and by further limitation in the jury instructions, id. at 249; Hall, 152 F.3d at 414-15; and (6) the FDPA’s inclusion of the “mere fact” that Webster was convicted of kidnaping and murdering Lisa Rene as an aggravating factor does not constitute constitutionally impermissible “stacking,” or double-counting, Jones, 132 F.3d at 249; Hall, 152 F.3d at 416-17. 2. Webster raises three constitutional arguments that we address as matters of first impression. We reject them seriatim. a. Webster argues that the FDPA is unconstitutional for failing significantly to narrow the class of offenses to which the death penalty applies. Under Maynard v. Cartwright, 486 U.S. 356, 363-64, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988), the government may not make every unjustified intentional killing qualify for the death penalty. The FDPA does precisely that, Webster argues, by making the four mental states of murder aggravating factors that qualify the defendant for capital punishment under § 3591(a). Webster’s argument stems from a misreading of the statute. As the government points out, § 3591(a) does not set forth a list of aggravating factors, but, on the contrary, serves a gatekeeping function. Section 3591(a) codifies the command in Enmund, 458 U.S. at 797, 102 S.Ct. 3368, and Tison, 481 U.S. at 157, 107 S.Ct. 1676, to limit the imposition of the death penalty to those murderers who both undertake felony participation and demonstrate at least reckless indifference to human life. Satisfaction of these elements only begins the death penalty inquiry; it does not and cannot establish death penalty eligibility by itself. The limiting factors, which Webster claims are lacking, are, of course, the aggravating circumstances set forth in § 3592(b) and (c), which guide the jury in its capital decision after it finds at least one element of intent under § 3591(a) as a threshold matter. b. Webster contends that the FDPA is unconstitutional because it permits the multiple weighing of aggravating factors (specifically, the § 3591(a)(2) mens rea factors). This argument stems from the same fundamental misunderstanding of § 3591(a) discussed above. See part IV.N.2.a, supra; see also part IV.A.2, supra (discussing" }, { "docid": "11839160", "title": "", "text": "made the decision she needed to die. This factor clearly proven again”; and (3) “[a]gain, there’s no doubt that they chose Terry King. This was no random event.” Before deliberation, the district court instructed the jury: The process of weighing aggravating and mitigating factors against each other, or weighing aggravating factors alone if you find no mitigating factors, is by no means a mechanical process. In other words, you should not simply count the total number of aggravating and mitigating factors and reach a decision based on which number is greater; rather you should consider the weight and value of each factor.... The law contemplates that different factors may be given different weight or values by different jurors. Thus, you may find that one mitigating factor outweighs all aggravating factors combined, or that the aggravating factors proven, do not, standing alone, justify the imposition of death beyond a reasonable doubt. After deliberating, the jury found unanimously that all of the aggravating factors, both statutory and non-statutory, existed beyond a reasonable doubt. In addition, seventeen mitigating factors were found by at least one juror, and eleven of those mitigating factors were found by at least ten of the twelve jurors. Because this Circuit has not addressed the constitutionality of allegedly duplica-tive aggravating factors, Fell relies on the Tenth Circuit’s decision in United States v. McCullah, 76 F.3d 1087 (10th Cir.1996). McCullah held that under the Continuing Criminal Enterprise provision of the Anti-Drug Abuse Act, 21 U.S.C. § 848, aggravating sentencing factors that im-permissibly duplicate each other raise constitutional questions. Id. at 1111. The Tenth Circuit found that “[s]ueh double counting of aggravating factors, especially under a weighing scheme, has a tendency to skew the weighing process and creates the risk that the death sentence will be imposed arbitrarily and thus, unconstitutionally.” Id. Although the statute at issue in McCullah, like the FDPA, allows the jury to accord as much or as little weight to any particular factor as it views appropriate, the Tenth Circuit stated that when a sentencing body is asked, in essence, to weigh a factor twice, “a reviewing" } ]

[ { "docid": "10023780", "title": "", "text": "the district court held that it could not “determine whether defendants treated plaintiffs differently than other similarly situated landowners until the full extent of the City’s new zoning ordinance has been brought to bear and the Court can measure the harm, if any, caused to plaintiffs.” Joint Appendix at 71. We agree that plaintiffs’ action was premature. Where a plaintiff challenges a zoning regulation “as applied,” as opposed to making a facial challenge to the regulation, the courts have held that the Williamson final decision requirement must be met. Eide v. Sarasota County, 908 F.2d 716, 722-25 (11th Cir.1990), cert. denied, - U.S. -, 111 S.Ct. 1073, 112 L.Ed.2d 1179 (1991); Landmark Land Co. v. Buchanan, 874 F.2d 717 (10th Cir.1989) (Williamson applies with respect to equal protection challenges to zoning regulations); see also Pennell v. City of San Jose, 485 U.S. 1, 108 S.Ct. 849, 99 L.Ed.2d 1 (1988) (dismissing as premature as applied equal protection claim because plaintiffs did not identify any property taken by application of the act). In the present case, plaintiffs have challenged a facially neutral set of policies and procedures, which, they argue, have been applied in an allegedly arbitrary and discriminatory fashion. Because the city “has not reached a final decision with regard to the application of the regulation to the landowner’s property, the landowner cannot assert an applied challenge to the decision because, in effect, a decision has not yet been made.” Eide, 908 F.2d at 725. Therefore, absent an application for a variance and a final decision on that application, we are unable to determine, at this juncture, whether the city will ultimately deny plaintiffs the equal protection of the laws. Plaintiffs contend, however, that they should be excused from applying for a variance, because such an act would be futile. For the reasons discussed above, we are not satisfied that plaintiffs have demonstrated that the futility exception to the final decision requirement applies here. In the Seventh and Ninth Circuits the courts have held that, until “at least one ‘meaningful application’ ” has been submitted for the local authority’s review," } ]

[ { "docid": "22969683", "title": "", "text": "distilled to one: “The application for the Permit (Amendment No. 3) was acceptable to the Cabinet except for the failure of the Petitioner to agree to a minimum cover (i.e., distance from mining to the surface) of greater than 110 feet.” J.A. at 75 (Report). The Hearing Officer of the Cabinet affirmed the decision of the Cabinet to deny the permit, finding both that the Cabinet could provide extra protection for the old-growth portion of the Woods that is not required for second-growth forests and that the Cabinet had a sufficient basis for determining that the 110-foot vertical cover proposed by petitioner was inadequate to minimize the impact to the hydrologic balance of the Woods. Noting that the petitioner bore the burdens of production and persuasion, the officer concluded that DLX failed to carry its burden of showing “that a 110-foot vertical cover would minimize disturbances to the hydrologic balance within the old-growth portion of the Lilley Cornett Woods.” J.A. at 93 (Report). This report was adopted by then-Secretary Phillip J. Shepherd without comment. Although Kentucky law allows a permit applicant to seek judicial review of a Secretary’s final Order under KRS § 350.0305, DLX immediately filed a state-court takings claim, asserting that the denial of a permit to mine under the Woods constituted a regulatory taking of its property in violation of the Kentucky constitution. DLX expressly reserved its federal claims, noting, RESERVATION OF FEDERAL CLAIMS DLX hereby reserves its Federal claims. DLX will pursue in Federal court any remedies it may have under the United States Constitution or under United States statutes or regulations. J.A. at 67 (State Ct. 1st Am. Compl.). After the state trial court dismissed the case for lack of ripeness, an intermediate court reversed, and the Supreme Court of Kentucky granted the Cabinet’s petition for review. See Commonwealth v. DLX, Inc., 42 S.W.3d 624, 625 (Ky.2001). That court decided the case on the basis of exhaustion of administrative remedies, rather than ripeness. See id. (‘We conclude that DLX failed to exhaust its administrative remedies.”). Because DLX had not appealed the Secretary’s final order before" }, { "docid": "22969709", "title": "", "text": "a mischaracterization of Peterson’s testimony, and examining that testimony reveals that he would have been receptive to a permit application stipulating less vertical cover accompanied by additional data: Q. So it is fair to say, isn’t it, that if your concern was connection of the pressure dome fractures to the maximum stress relief fractures that no permit less than 250 feet would have been acceptable? A. Unless they demonstrated through some other data, which they were given opportunity to do, that the fractures weren’t that deep or my concerns weren’t that justified, yes. Q. But based on the data that you did have? A. Yes. Q. We have been all through that. The data that you did have, including the data that said most of the water moved within 100 feet of the surface, based on the data that you did have, it is fair to say that you would not have approved a permit that left only a 240-foot vertical cover, isn’t it? A. Yes. J.A. at 359 (Tr. of Admin. Hr’g). In its reply brief, DLX argues that no previous case requires a plaintiff to submit scientific surveys before finality will be found, and asserts that DLX could have proven no set of scientific facts that would have convinced the decisionmaker to allow DLX’s permit. Because resolution of this question requires factual inquiry, and the question is one on which the district court did not pass, we decline to resolve this factual question on appeal. Assuming all of DLX’s allegations in its federal complaint to be true, namely, “The actions of the Commonwealth rendered more than one million tons of high quality coal unminea-ble,” J.A. at 7 (Comply 14), jurisdiction exists; to deny jurisdiction based on a factual attack seems inappropriate without further proceedings below. We therefore choose to rely on Eleventh Amendment immunity in affirming the district court. F. Eleventh Amendment Immunity Finally, Kentucky argues that it is immune from & sect; 1983 suit under the Eleventh Amendment as 42 U.S.C. § 1983 does not abrogate its immunity. See Quern v. Jordan, 440 U.S. 332, 338-41, 99" }, { "docid": "22969682", "title": "", "text": "that a 250-foot cover would result in only twenty-five-percent recovery. DLX therefore withdrew its fourth proposal, submitting a fifth proposal instead which provided for fifty-percent recovery, but only a 110-foot vertical cover. This proposal was submitted with a letter requesting that the permit be issued or denied “as is.” J.A. at 73 (Report). On April 25, 1994, the application was denied, for six reasons: the potential danger to the old-growth forest portion of the Woods; a failure to demonstrate that the mining operation could be feasibly accomplished un der 405 KAR 8:010 § 14(2); that the application did not contain sufficient geological and hydrologic information to demonstrate the hydrologic consequences of the project on the Woods; that it did not present information detailing the care the applicant would take to minimize hydrologic consequences; that there was inadequate information regarding the surrounding nature habitats; and there was no information on the minimization of the impact of mining on those habitats. DLX petitioned for review, and at the hearing, the reasons for denial of the application were distilled to one: “The application for the Permit (Amendment No. 3) was acceptable to the Cabinet except for the failure of the Petitioner to agree to a minimum cover (i.e., distance from mining to the surface) of greater than 110 feet.” J.A. at 75 (Report). The Hearing Officer of the Cabinet affirmed the decision of the Cabinet to deny the permit, finding both that the Cabinet could provide extra protection for the old-growth portion of the Woods that is not required for second-growth forests and that the Cabinet had a sufficient basis for determining that the 110-foot vertical cover proposed by petitioner was inadequate to minimize the impact to the hydrologic balance of the Woods. Noting that the petitioner bore the burdens of production and persuasion, the officer concluded that DLX failed to carry its burden of showing “that a 110-foot vertical cover would minimize disturbances to the hydrologic balance within the old-growth portion of the Lilley Cornett Woods.” J.A. at 93 (Report). This report was adopted by then-Secretary Phillip J. Shepherd without comment. Although" }, { "docid": "17061136", "title": "", "text": "City of Cuyahoga Falls, 82 Ohio St.3d 539, 697 N.E.2d 181, 186 (Ohio 1998) (\"The passage by a city council of an ordinance approving a site plan for the development of land, pursuant to existing zoning and other applicable regulations ... is not subject to referendum proceedings.”). . Defendants argue that the building permits were properly denied because the plaintiffs had failed to fulfill one of the conditions for granting the permit — namely, building a costly fence on one end of the property. However, as Judge Bell pointed out below, \"the facts malee it clear that the building of the fence by [p]laintiffs would have been a futile act — what the Sixth Circuit has referred to as 'a waste of time and money.... The [defendants had already concluded that the building permits could not issue due to the ineffective site plan ordinance.’\" Buckeye Cmty. Hope Found., 970 F.Supp. at 1309 n. 21 (quoting Bannum, Inc. v. City of Louisville, 958 F.2d 1354, 1362 (6th Cir.1992)) (citations omitted); see also J.A. at 1269 (testimony of Mr. Boone who stated that work on the fence did not begin \"because it became pretty obvious that we are in a fight and ... we don’t have the funds to put up a $70,000 fence.”). . Plaintiffs in their brief also assert a procedural due process claim based on defendants \"subjecting them to ... an extra layer of administrative process — a procedure without clear, rational rules to which they could look for guidance in planning to develop their property.” See Plaintiffs' Br. at 50. This is actually a substantive due process claim, since the claim essentially amounts to an attack on the rationality of the referendum procedure itself. Therefore, this claim merges with the substantive due process arguments discussed above." }, { "docid": "22969680", "title": "", "text": "Eastern Kentucky University as a wildlife refuge and research facility. The Woods are designated a National Natural Landmark as “[pjrobably the only surviving virgin tract of any size in the Cumberland Mountains section of the mixed mesophytic forest, which is characterized by a great variety of tree species.” National Park Service, National Registry of Natural Landmarks, http://www.nature.nps.gov/ nnl/Registry/USA — Map/States/Kentucky/ nnl/lcw/index.htm. The surface rights to the Woods were originally purchased by Kentucky from the Kentucky River Coal Company, which retained the mining rights; a portion of the property was also purchased from the Cornett heirs. In 1975, the South-East Coal Company obtained a lease from the Kentucky River Coal Company to mine coal, including coal under the Woods, pursuant to which South-East acquired a permit from the state to mine 3,000 acres. Immediately before filing the amendment to SouthEast’s then-existing permit that is at issue in this case, South-East filed for bankruptcy. DLX purchased all of South-East’s assets, including the leases with Kentucky River and the state permit. At that point, DLX had a lease and permit allowing it to mine approximately 3,000 acres, which did not include any mining under the Woods. All the coal remaining in the lease is either under the Woods or can only be accessed by DLX through the land under the Woods. DLX applied for Amendment No. 3 to the existing permit, which proposed an additional 130 acres to be added to the 3,000-acre permit area. DLX submitted an initial plan to the Cabinet, which responded with a “deficiency letter.” DLX resubmitted, adding “a pillar design for subsidence control.” Joint Appendix (“J.A.”) at 73 (Hearing Officer’s Report and Recommendation). After additional deficiency letters, a seventy-five-foot vertical cover between mine operations and the surface was proposed in a third submittal; further deficiency letters resulted in a fourth submittal which left a 250-foot vertical cover, and proposed a fifty-percent recovery, that is, that half the coal in the area was extractable under the plan. No deficiency letter was issued by the Cabinet, but DLX in reassessing its fourth submittal decided that the proposal was unfeasible, and" }, { "docid": "22969681", "title": "", "text": "and permit allowing it to mine approximately 3,000 acres, which did not include any mining under the Woods. All the coal remaining in the lease is either under the Woods or can only be accessed by DLX through the land under the Woods. DLX applied for Amendment No. 3 to the existing permit, which proposed an additional 130 acres to be added to the 3,000-acre permit area. DLX submitted an initial plan to the Cabinet, which responded with a “deficiency letter.” DLX resubmitted, adding “a pillar design for subsidence control.” Joint Appendix (“J.A.”) at 73 (Hearing Officer’s Report and Recommendation). After additional deficiency letters, a seventy-five-foot vertical cover between mine operations and the surface was proposed in a third submittal; further deficiency letters resulted in a fourth submittal which left a 250-foot vertical cover, and proposed a fifty-percent recovery, that is, that half the coal in the area was extractable under the plan. No deficiency letter was issued by the Cabinet, but DLX in reassessing its fourth submittal decided that the proposal was unfeasible, and that a 250-foot cover would result in only twenty-five-percent recovery. DLX therefore withdrew its fourth proposal, submitting a fifth proposal instead which provided for fifty-percent recovery, but only a 110-foot vertical cover. This proposal was submitted with a letter requesting that the permit be issued or denied “as is.” J.A. at 73 (Report). On April 25, 1994, the application was denied, for six reasons: the potential danger to the old-growth forest portion of the Woods; a failure to demonstrate that the mining operation could be feasibly accomplished un der 405 KAR 8:010 § 14(2); that the application did not contain sufficient geological and hydrologic information to demonstrate the hydrologic consequences of the project on the Woods; that it did not present information detailing the care the applicant would take to minimize hydrologic consequences; that there was inadequate information regarding the surrounding nature habitats; and there was no information on the minimization of the impact of mining on those habitats. DLX petitioned for review, and at the hearing, the reasons for denial of the application were" }, { "docid": "22969703", "title": "", "text": "Barnes v. McDowell, 848 F.2d 725, 732 (6th Cir.1988) (party who files in state court before filing in federal court, splitting claims, enjoys England protection from res judicata even without explicit reservation); Wicker v. Bd. of Educ., 826 F.2d 442, 446 (6th Cir.1987) (party who files in state court subsequent to federal court but before abstention order still entitled to England reservation). The weight of circuit-level authority is therefore clearly in favor of allowing DLX’s England-style reservation in its Kentucky state-court action to prevent the application of the doctrine of claim preclusion in its subsequent federal-court takings action. We join our sister circuits in holding that a party’s England reservation of federal takings claims in a state takings action will suffice to defeat claim preclusion in a subsequent federal action. It is unnecessary to decide in this case whether or not the Second Circuit’s holding in San-tini that issue preclusion is also inapplicable is the better rule, because the Kentucky Supreme Court did not decide any issues that affect DLX’s right to recovery on its federal claim. Therefore, the doe- trine of res judicata does not bar DLX’s federal takings claim. E. Williamson County Prong-One Ripeness As noted above, Williamson County’s first ripeness requirement for federal regulatory takings claims in federal court is that the state or local decisionmakers have made a final decision, such that a federal court assessing whether or not a taking has occurred can look to that decision in assessing what use can be made of the property. Williamson County, 473 U.S. at 186-91, 105 S.Ct. 3108. Kentucky vigorously asserts that DLX has not adequately demonstrated a final decision on the part of the Cabinet; DLX equally vigorously asserts that in fact a final decision has been made. The parties focus their attention on the amount of vertical cover required by the Cabinet: DLX argues that the Cabinet is immovably settled on a 250-foot vertical cover; Kentucky argues that some amount of vertical cover between 110 feet and 250 feet may be acceptable to the Cabinet. Williamson County itself concerned a developer’s application for a construction" }, { "docid": "23519412", "title": "", "text": "F.2d 977 (9th Cir.1987), cert. denied, 488 U.S. 827, 109 S.Ct. 79, 102 L.Ed.2d 55 (1988). Finality also requires the local government to determine authoritatively the type and intensity of development that land use regulations will allow on the subject property; such a determination helps a court to evaluate whether regulation of the subject property is excessive by identifying the extent of the regulation. See Herrington, 857 F.2d at 570; Lai v. City and County of Honolulu, 841 F.2d 301, 303 (9th Cir.), cert. denied, 488 U.S. 994, 109 S.Ct. 560, 102 L.Ed.2d 586 (1988). Thus, a landowner may need to resubmit modified development proposals that satisfy the local government’s objections to the development as initially proposed. See MacDonald, Sommer & Frates v. County of Yolo, 477 U.S. 340, 351-53, 106 S.Ct. 2561, 2567-68, 91 L.Ed.2d 285 (1986). This circuit recognizes a limited futility exception to the requirement that a landowner obtain a final decision regarding the application of land use regulations to the affected property. Kinzli, 818 F.2d at 1454. Under this exception, the resubmission of a development plan or the application for a variance from prohibitive regulations may be excused if those actions would be idle or futile. See Herrington, 857 F.2d at 570; Shelter Creek, 838 F.2d at 379. The landowner bears the burden of establishing, by more than mere allegations, the futility of pursuing any of the steps needed to obtain a final decision. Herrington, 857 F.2d at 570. Moreover, before claiming the exception, the landowner must submit at least one development proposal and one application for a variance if meaningful application and submission can be made. See id. at 570 & n. 2; Kinzli, 818 F.2d at 1455 & n. 6. The precise test for determining whether a landowner has established the futility of pursuing a development application has not been clearly defined, although various authorities have identified situations that create the potential for application of the exception. In MacDonald, for example, the Supreme Court acknowledged that the finality requirement does not compel the landowner to pursue a development application through piecemeal litigation or unfair" }, { "docid": "22969704", "title": "", "text": "federal claim. Therefore, the doe- trine of res judicata does not bar DLX’s federal takings claim. E. Williamson County Prong-One Ripeness As noted above, Williamson County’s first ripeness requirement for federal regulatory takings claims in federal court is that the state or local decisionmakers have made a final decision, such that a federal court assessing whether or not a taking has occurred can look to that decision in assessing what use can be made of the property. Williamson County, 473 U.S. at 186-91, 105 S.Ct. 3108. Kentucky vigorously asserts that DLX has not adequately demonstrated a final decision on the part of the Cabinet; DLX equally vigorously asserts that in fact a final decision has been made. The parties focus their attention on the amount of vertical cover required by the Cabinet: DLX argues that the Cabinet is immovably settled on a 250-foot vertical cover; Kentucky argues that some amount of vertical cover between 110 feet and 250 feet may be acceptable to the Cabinet. Williamson County itself concerned a developer’s application for a construction permit from the local planning commission. In 1973, a predecessor in interest to the plaintiff had submitted a preliminary design to the commission, which was approved; the design was continuously reap-proved during development and construction, even after the zoning laws changed, through 1980. A final plan was submitted in 1980, which was disapproved by the Commission; after a change in ownership, revised plans were submitted, which were also disapproved. These decisions were held not to be final by the Court, however, because variances could be sought for “five of the Commission’s eight objections to the” plan. Id. at 188, 105 S.Ct. 3108. Until those variances were sought and rejected, the takings claim was not yet ripe. The next Term, the Court applied the ripeness requirement again in MacDonald, Sommer & Frates v. County of Yolo, 477 U.S. 340, 352, 106 S.Ct. 2561, 91 L.Ed.2d 285 (1986), holding that a developer who had only submitted one proposal that had been rejected did not have a ripe takings claim, noting, “Rejection of exceedingly grandiose development plans does" }, { "docid": "2711368", "title": "", "text": "6 (citations omitted). Since the Kinzlis had withdrawn their application prior to a final decision, the application was not meaningful, the case was not ripe, and the futility exception did not apply. As harsh and counterintuitive as it may sound, Kinzli seems to stand for the proposition that, when a local land use ordinance provides prompt and fair development application and variance procedures, the futility exception to the final decision requirement will not apply, absent at least one rejected application and one rejected variance request, even when the local statute clearly precludes approval of any meaningful application. In other words, the Kinzli court held that a property owner must make use of the development and variance application procedures even when the statute deprives the property owner of all beneficial uses and the application will therefore be denied. Thus Kinzli converted the futility “exception” into a reiteration of the general final decision rule: no claim will be heard on the merits until rejection of development and variance applications. Subsequent decisions have confirmed this interpretation of Kinzli. They cite Kinzli, without criticism, for the proposition stated above, and rely on that rule to dispose of taking claims. See, e.g., Lake Nacimiento Ranch Co. v. San Luis Obispo County, 841 F.2d at 876-77 (under Kinzli, failure to submit development application precludes application of futility exception); Shelter Creek, 838 F.2d at 379 {Kinzli held that futility exception “unavailable unless and until landowner has submitted at least one ‘meaningful application’ for development of property and one ‘meaningful application’ for a variance”). Accordingly, although this Court is less than comfortable with the Kinzli rule, it is well established in this circuit and therefore binding upon the Court. The question, then, is whether the final decision requirement, as interpreted by Kinzli and its progeny, bars Zilber’s as-applied challenge to MOSO. The simplicity of the Kinzli rule leaves little doubt the claim is indeed barred. While Zilber did, through a developer, submit a development plan for approval, the Town never issued a final decision on that application. However reasonable it may have been for the developer to give" }, { "docid": "22969708", "title": "", "text": "circuit has also recognized a “futility exception,” which is in substance similar to Palazzolo’s rule, whereby a plaintiff need not seek a variance from a regulation where it would be an “idle and futile act”; the exception only applies where a landowner has “submitted at least one meaningful application for a variance.” Bannum, Inc. v. City of Louisville, 958 F.2d 1354, 1363 (6th Cir.1992) (internal citations and quotation marks omitted); see also Seguin v. City of Sterling Heights, 968 F.2d 584, 587-88 (6th Cir.1992) (refusing to decide whether futility exists). DLX argues that its application for a permit providing less than 250 feet of vertical cover would have been futile, and points to testimony elicited during the administrative hearing from the Cabinet reviewer, Larry Peterson (“Peterson”). Kentucky responds that Peterson’s testimony actually reveals that the officer might have been willing to approve less vertical cover, if DLX had submitted additional data supporting such a move. It seems at first blush that Kentucky has the better of this argument — DLX’s futility argument is based on a mischaracterization of Peterson’s testimony, and examining that testimony reveals that he would have been receptive to a permit application stipulating less vertical cover accompanied by additional data: Q. So it is fair to say, isn’t it, that if your concern was connection of the pressure dome fractures to the maximum stress relief fractures that no permit less than 250 feet would have been acceptable? A. Unless they demonstrated through some other data, which they were given opportunity to do, that the fractures weren’t that deep or my concerns weren’t that justified, yes. Q. But based on the data that you did have? A. Yes. Q. We have been all through that. The data that you did have, including the data that said most of the water moved within 100 feet of the surface, based on the data that you did have, it is fair to say that you would not have approved a permit that left only a 240-foot vertical cover, isn’t it? A. Yes. J.A. at 359 (Tr. of Admin. Hr’g). In its" }, { "docid": "22859829", "title": "", "text": "the City’s application of the Ordinance and the second homeowner exception. MHC argues the City’s application of the Ordinance creates a sales premium for mobile-homes within Westwinds. This premium, MHC argues, impermissibly transfers property from MHC to the individual homeowners. MHC also argues the City’s application of the Ordinance does not allow MHC a fair and reasonable return on its investment. Thus, MHC argues, the City fails to “substantially advance” the stated goals of the Ordinance or any other legitimate government interest. Constitutional takings claims are subject to the Williamson County ripeness test. Williamson County Reg’l Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985). Under Williamson County there are two parts to establishing ripeness for a takings claim brought in federal court against a state or subdivision thereof. The first step requires that “the government entity-charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue.” Id. at 186, 105 S.Ct. 3108. The second step requires the plaintiff to “seek compensation through the procedures the State has provided for doing so.” Id. at 194, 105 S.Ct. 3108. A petitioner need not seek state remedies if to do so would be futile. Id. at 194-95, 105 S.Ct. 3108. The futility exception is narrow, and mere uncertainty does not establish futility. Del Monte Dunes at Monterey, Ltd. v. City of Monte-rey, 920 F.2d 1496, 1501 (9th Cir.1990). Under the exception: The landowner bears the burden of establishing, by more than mere allegations, the futility of pursuing any of the steps needed to obtain a final decision. Moreover, before claiming the exception, the landowner must submit at least one development proposal and one application for a variance if meaningful application and submission can be made. Id. (citations omitted); see also Carson Harbor Vill., Ltd. v. City of Carson, 353 F.3d 824, 827 (9th Cir.2004). Applied takings claims — General rent increases MHC pursued its general rate increase claims through the administrative process provided by the Ordinance. The hearing officer twice denied MHC’s rent increase. These actions" }, { "docid": "21757364", "title": "", "text": "that the agency lacks the discretion to permit any development, or the permissible uses of the property are known to a reasonable degree of certainty, a takings claim is likely to have ripened. Ripeness doctrine does not require a landowner to submit applications for their own sake. Petitioner is required to explore development opportunities on his upland parcel only if there is uncertainty as to the land’s permitted use. 121 S.Ct. at 2459-60. Moreover, Where the state agency charged with enforcing a challenged land use regulation entertains an application from an owner and its denial of the application makes clear the extent of development permitted, and neither the agency nor a reviewing state court has cited non-compliance with reasonable state law exhaustion or pre-permit processes ... federal ripeness rales do not require the submission of further and futile applications with other agencies. Id. at 2462 (internal citation omitted). Other cases cited by the Owners also conclude that where an agency has no discretion in the application of a contested regulation, an aggrieved party does not need to obtain a final decision from the agency determining the scope of the regulation. See City Nat’l Bank of Miami v. United States, 30 Fed. Cl. 715, 720 (1994) (“Plaintiff is not required to pursue futile means to obtain a final determination.’’); Conant v. United States, 12 Cl.Ct. 689, 693 (1987) (“This Court believes that it would serve no purpose to require a claimant to exhaust administrative procedures before seeking judicial review when it is clear that resort to administrative action would be futile.”); see also Del Monte Dunes at Monterey, Ltd. v. City of Monterey, 920 F.2d 1496, 1501 (9th Cir.1990) (“Most recently, we excused as futile a landowner’s failure to apply for a variance that the local government was powerless to grant.”); Hoehne v. County of San Benito, 870 F.2d 529 (9th Cir.1989) (finding claim ripe because plaintiff submitted uncontro-verted affidavit that he was told that his application would be denied). We conclude that that Owners present an even more compelling case of futility than in Suitum, Palazzolo, and the other land" }, { "docid": "22205447", "title": "", "text": "the final decision requirement, “futility” refers to conditions that make the process itself impossible or highly unlikely to yield governmental approval of the land use that claimants seek — such as government obstinacy or where the only governmental body to which claimants can appeal is unable to authorize claimants’ desired land use. See, e.g., Hoehne, 870 F.2d at 535 (holding that it would have been futile for a couple to submit additional applications because no variance was available for their needs, and the county authorities had made clear that they would not approve of the couple’s desired use of the land because they had already re-zoned it); cf. Guru Nanak Sikh Soc’y v. Cnty. of Sutter, 456 F.3d 978, 989-90 (9th Cir.2006) (holding that no additional applications were necessary where there were no zones providing for religious use as of right, county repeatedly denied temple’s application for conditional use permits despite temple’s efforts to comply with County’s requested plan modifications and denial reasons, and reasoning of county’s previous denial made the success of any future permit application highly unlikely). The Church has presented no evidence that the County will not or cannot issue a Use Permit once it has received a complete application, and once the Church has complied with what is required of all applicants. Although the Church’s alleged financial straits are lamentable, this is no fault of the County’s and is no reason for us to except the Church from the obligations of all Use Permit applicants. Finally, even if the Church had made a sufficient “futility” argument, Ninth Circuit jurisprudence in this area still does not excuse permit-seekers who fall into this exception from the final decision requirement from submitting at least one complete permit application. Herrington, 857 F.2d at 569 (“A property owner cannot rely on the futility exception until he or she makes at least one meaningful application.”) (citations omitted). S. Use Permit Application Process Itself as Substantial Burden It seems that the Church offers an alternate ripeness theory, Williamson County notwithstanding, arguing that the costs of complying with the scoping letter are themselves a" }, { "docid": "22969684", "title": "", "text": "Kentucky law allows a permit applicant to seek judicial review of a Secretary’s final Order under KRS § 350.0305, DLX immediately filed a state-court takings claim, asserting that the denial of a permit to mine under the Woods constituted a regulatory taking of its property in violation of the Kentucky constitution. DLX expressly reserved its federal claims, noting, RESERVATION OF FEDERAL CLAIMS DLX hereby reserves its Federal claims. DLX will pursue in Federal court any remedies it may have under the United States Constitution or under United States statutes or regulations. J.A. at 67 (State Ct. 1st Am. Compl.). After the state trial court dismissed the case for lack of ripeness, an intermediate court reversed, and the Supreme Court of Kentucky granted the Cabinet’s petition for review. See Commonwealth v. DLX, Inc., 42 S.W.3d 624, 625 (Ky.2001). That court decided the case on the basis of exhaustion of administrative remedies, rather than ripeness. See id. (‘We conclude that DLX failed to exhaust its administrative remedies.”). Because DLX had not appealed the Secretary’s final order before filing a takings claim, it could not proceed on the state constitutional takings claim. Id. at 626-27. Two justices (of seven) dissented, noting that DLX was prevented from raising its constitutional claims in the administrative proceedings, and that it would have been prevented from doing so in its appeal from the decision of the Cabinet. Id. at 627 (Winter-sheimer, J., dissenting). As the decision was one of state law only, a writ of certio-rari from the United States Supreme Court was not sought. One year after the Kentucky Supreme Court dismissed DLX’s state constitutional claim, DLX filed in federal district court, alleging a violation of the Fifth Amendment actionable under 42 U.S.C. § 1983. Kentucky immediately moved for dismissal under Federal Rule of Civil Procedure 12(b)(1), arguing that the court lacked subject matter jurisdiction under the doctrine of sovereign immunity of the Eleventh Amendment, the doctrine of ripeness, the doctrine of exhaustion, the Rooker-Feldman doctrine,and res judicata. The district court granted the motion on March 24, 2003, on the basis of ripeness and the Rooker-Feldman" }, { "docid": "22969707", "title": "", "text": "Island, 533 U.S. 606, 121 S.Ct. 2448, 150 L.Ed.2d 592 (2001), in finding a regulatory taking in a state’s refusal to allow a landowner to develop wetlands property, the Court rejected a suggestion that “while the Council rejected petitioner’s effort to fill all of the wetlands, and then rejected his proposal to fill 11 of the wetland acres, perhaps an application to fill (for instance) 5 acres would have been approved.” Id. at 619, 121 S.Ct. 2448. In doing so, the Court examined the rejection of both proposals, studying the grounds relied upon, and determined that no development would be permitted: “Further permit applications were not necessary to establish this point.” Id. at 621, 121 S.Ct. 2448. Thus, Williamson County prong-one ripeness is a factual determination, taking into account all relevant statutes, ordinances, and regulations, that the decisionmaker has arrived at a final determination with respect to the permit applicant’s use of her property, and that that determination is one which will allow a court to determine whether a regulatory taking has taken place. This circuit has also recognized a “futility exception,” which is in substance similar to Palazzolo’s rule, whereby a plaintiff need not seek a variance from a regulation where it would be an “idle and futile act”; the exception only applies where a landowner has “submitted at least one meaningful application for a variance.” Bannum, Inc. v. City of Louisville, 958 F.2d 1354, 1363 (6th Cir.1992) (internal citations and quotation marks omitted); see also Seguin v. City of Sterling Heights, 968 F.2d 584, 587-88 (6th Cir.1992) (refusing to decide whether futility exists). DLX argues that its application for a permit providing less than 250 feet of vertical cover would have been futile, and points to testimony elicited during the administrative hearing from the Cabinet reviewer, Larry Peterson (“Peterson”). Kentucky responds that Peterson’s testimony actually reveals that the officer might have been willing to approve less vertical cover, if DLX had submitted additional data supporting such a move. It seems at first blush that Kentucky has the better of this argument — DLX’s futility argument is based on" }, { "docid": "12695880", "title": "", "text": "least two decisions against [landowners]: (1) a rejected development plan, and (2) a denial of a variance. [Landowners] have not secured or even attempted to secure either of these two requisite decisions. Id. at 1454 (citation omitted). We acknowledged that under the “futility exception” to the threshold requirement of a final determination, submission of a development plan is excused if the submission would be an “ ‘idle and futile act.’ ” Id. (quoting Martino v. Santa Clara Valley Water Dist., 703 F.2d 1141, 1146 n. 2 (9th Cir.), cert. denied, 464 U.S. 847, 104 S.Ct. 151, 78 L.Ed.2d 141 (1983)). We held, however, that the “futility exception” is unavailable unless and until landowner has submitted at least one “meaningful application” for development of the property and one “meaningful application” for a variance. Id. at 1455 & n. 6; accord Lake Nacimiento Ranch Co. v. County of San Luis Obispo, 830 F.2d 977, 980 (9th Cir.1987). The landowners in Kinzli had failed to satisfy these requirements. Moreover, the application originally filed by the potential purchaser of the property had not been meaningful because it had been abandoned at an early stage of the approval process. 818 F.2d at 1455. We also left no doubt that equal protection claims and substantive due process claims are to be analyzed for ripeness in the same way that regulatory taking claims are analyzed: “[T]he [landowners’] equal protection claim is not ripe for consideration by the district court ‘until planning authorities and state review entities make a final determination on the status of the property.’ The [landowners’] equal protection claim therefore is not ripe, just as their taking claim is not ripe.” Id. at 1455-56 (quoting Norco Construction, Inc. v. King County, 801 F.2d 1143, 1145 (9th Cir.1986)). Likewise, the landowners’ due process claim was not ripe because they had failed to “obtain final decisions regarding the application of the regulations to their property and the availability of variances.” Id. at 1456; accord Herrington v. County of Sonoma, 834 F.2d 1488, 1496 (9th Cir.1987) (2-1) {Kinzli’s final decision requirement applies to substantive due process and equal" }, { "docid": "12695879", "title": "", "text": "of equal protection, and a denial of substantive due process. The district court ruled that the substantive due process claim was not ripe for adjudication, but reached the merits of the other claims, finding against the landowners on each. Id. at 1452-53. We reversed and ordered vacation of the district court’s rulings on the merits. We concluded that none of landowner’s claims was ripe for adjudication. Relying on the Supreme Court’s decisions in Hamilton Bank and MacDonald, we explained that a landowner seeking to challenge application of a land use ordinance to his property must first obtain “a final and authoritative determination of the type and intensity of development legally permitted on the subject property.” Id. at 1453 (quoting MacDonald, 106 S.Ct. at 2566). Absent an application for a variance, no such final and authoritative determination can be shown: [T]he “final decision” which inflicts a concrete injury on the plaintiff and is ripe for adjudication as a claim of a regulatory taking, even if the claim is brought under 42 U.S.C. § 1983, requires at least two decisions against [landowners]: (1) a rejected development plan, and (2) a denial of a variance. [Landowners] have not secured or even attempted to secure either of these two requisite decisions. Id. at 1454 (citation omitted). We acknowledged that under the “futility exception” to the threshold requirement of a final determination, submission of a development plan is excused if the submission would be an “ ‘idle and futile act.’ ” Id. (quoting Martino v. Santa Clara Valley Water Dist., 703 F.2d 1141, 1146 n. 2 (9th Cir.), cert. denied, 464 U.S. 847, 104 S.Ct. 151, 78 L.Ed.2d 141 (1983)). We held, however, that the “futility exception” is unavailable unless and until landowner has submitted at least one “meaningful application” for development of the property and one “meaningful application” for a variance. Id. at 1455 & n. 6; accord Lake Nacimiento Ranch Co. v. County of San Luis Obispo, 830 F.2d 977, 980 (9th Cir.1987). The landowners in Kinzli had failed to satisfy these requirements. Moreover, the application originally filed by the potential purchaser of" }, { "docid": "2711367", "title": "", "text": "the regulatory regime inhibits the property’s marketability. Adoption of such standards would require courts to speculate as to what potential uses may be lurking in the hopes of the property owner and in the minds of developers and city planners. This would result in the same sort of speculation that the ripeness doctrine prohibits. Kinzli, 818 F.2d at 1454. The Kinzli court then proceeded to interpret the Supreme Court cases to require that “at least one application must be submitted before the futility exception applies.” Id. (emphasis in original). Moreover, the application must be “meaningful.” Id. at 1455. The Kinzli court also indicated that the futility exception will not apply until a meaningful application for a variance has been denied. In footnote 6, the court stated: Under Hamilton Bank’s ripeness requirements, a plaintiff must also show that an application for a variance was denied. It follows from the above discussion that the futility exception would excuse this requirement if at least one “meaningful application” for a variance is denied. Kinzli, 818 F.2d at 1455 n. 6 (citations omitted). Since the Kinzlis had withdrawn their application prior to a final decision, the application was not meaningful, the case was not ripe, and the futility exception did not apply. As harsh and counterintuitive as it may sound, Kinzli seems to stand for the proposition that, when a local land use ordinance provides prompt and fair development application and variance procedures, the futility exception to the final decision requirement will not apply, absent at least one rejected application and one rejected variance request, even when the local statute clearly precludes approval of any meaningful application. In other words, the Kinzli court held that a property owner must make use of the development and variance application procedures even when the statute deprives the property owner of all beneficial uses and the application will therefore be denied. Thus Kinzli converted the futility “exception” into a reiteration of the general final decision rule: no claim will be heard on the merits until rejection of development and variance applications. Subsequent decisions have confirmed this interpretation of Kinzli." }, { "docid": "22969717", "title": "", "text": "350 F.3d 578, 588-89 (6th Cir.2003) (“As [plaintiff] is not directly challenging the state court's judgments in federal court, the doctrines of claim and issue preclusion are more properly applied to this case.”); Hood v. Keller, 341 F.3d 593, 597-599 (6th Cir.2003) (reversing district court’s application of the Rooker-Feldman doctrine where plaintiff had raised facial and as-applied constitutional challenges in prior state-court criminal proceeding without applying Pennzoil formulation). Whatever the advisability of such a move, it is clearly foreclosed by prior cases of this court requiring the dismissal of claims that involve an injury predating the state-court proceedings on the exclusive grounds that the issues that the federal court would have to decide are inextricably intertwined with the state-court decision, in that to. allow relief would require the conclusion that the state court had wrongly decided the issues before it. See Peterson Novelties, Inc. v. City of Berkley, 305 F.3d 386, 390-93 (6th Cir.2002). . The concurrence reads the Kentucky Supreme Court's opinion as applying Williamson County prong-one ripeness; we respectfully disagree with this interpretation of the state court's opinion. Although “prong-one'' ripeness under Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172, 186-91, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985), is a requirement under Kentucky law, the Kentucky Supreme Court did not rest its decision on that ground. While the Kentucky trial court “granted the Cabinet's motion for judgment on the pleadings on grounds that the case was not ripe for judicial determination and that DLX failed to exhaust its administrative remedies,” the Kentucky Supreme Court concluded only “that DLX failed to exhaust its administrative remedies.” Commonwealth v. DLX, Inc., 42 S.W.3d 624, 625 (Ky.2001). Although the Kentucky Supreme Court in DLX cited to Williamson County’s language regarding \"prong-one” ripeness, it clearly did so to bolster its exhaustion decision, noting that the Williamson County Court \"explained the exhaustion of administrative remedies requirement in taking cases thusly” in introducing the quota tion. Id. at 626. Finally, in summing up its holding, the Kentucky Supreme Court made clear the grounds for its decision: The Court of Appeals erred in" } ]

[ { "docid": "23372103", "title": "", "text": "or prolonged, even though moderate, use of alcohol may result in diseases of many kinds, including pancreatic disease. Mrs. Hon also filed an affidavit of Dr. Jack Marks, a medical doctor, which states that “small amounts of alcohol taken for a relatively brief period of time are occasionally lethal.” Dr. Marks relies in part on medical literature reporting that “no threshold of toxicity can be established with ethanol consumption.” App. at 188a-189a. Finally, Mrs. Hon tendered television advertising boards showing commercials that have been aired to promote Old Milwaukee beer. See App. at 173a-184a. Mrs. Hon offered these advertising boards to show that Stroh has attempted to cultivate a belief among the consuming public that moderate consumption of its product is safe. II. We exercise plenary review over grants of summary judgment motions to determine whether “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). An issue is “genuine” only if the evidence is such that a reasonable jury could find for the party opposing the motion. Equimark Commercial Fin. Co. v. C.I.T. Fin. Servs. Corp., 812 F.2d 141, 144 (3d Cir.1987). We must view all facts in a light most favorable to the party opposing the motion. Betz Laboratories, Inc. v. Hines, 647 F.2d 402, 404 (3d Cir.1981). The law of Pennsylvania applies to this diversity case. Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Since no Pennsylvania or Third Circuit case specifically addresses the liability of an alcoholic beverage manufacturer to a Pennsylvania consumer who dies as the result of consuming its product, we are required by controlling precedent to predict how the Supreme Court of Pennsylvania would decide the issues before us. E.g., McGowan v. Univ. of Scranton, 759 F.2d 287, 291 (3d Cir.1985). In performing such a task, we accept decisions of Pennsylvania’s intermediate courts as presumptive evidence of Pennsylvania law. McGowan, supra; Wis-niewski v." } ]

[ { "docid": "3066693", "title": "", "text": "with the Rule 12 motions. The Direct Purchasers’ motion to amend the complaint is therefore granted. MOTION TO DISMISS AND FOR JUDGMENT ON THE PLEADINGS STANDARD OF REVIEW FOR A RULE 12(b)(6) MOTION TO DISMISS AND RULE 12(c) MOTION FOR JUDGMENT ON THE PLEADINGS On a motion to dismiss, pursuant to Fed.R.Civ.P. 12(b)(6), the court is required to accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom, and to view them in the light most favorable to the nonmoving party. See Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 (3d Cir.1994). The standard for determining a motion for judgment on the pleadings under Rule 12(c) is the same standard used for deciding a motion to dismiss, pursuant to Rule 12(b)(6). In re Linerboard Antitrust Litig., 2000 U.S. Dist. LEXIS 14433, at *16 (E.D.Pa. October 15, 2000) (citing Jubilee v. Horn, 975 F.Supp. 761, 763 (E.D.Pa.1997), aff'd 151 F.3d 1025 (3d Cir.1998)); Gillead v. Hertz Corp., 1990 WL 119390, at *2, 1990 U.S. Dist. LEXIS 10654, at *5 (D.N.J. August 14, 1990). The question is whether the claimant can prove any set of facts consistent with his or her allegations that will entitle him or her to relief, not whether that person will ultimately prevail. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984). “A complaint cannot be dismissed unless the court is certain that no set of facts can be proved that would entitle plaintiff to relief.” In re Mercedes-Benz Anti-Trust Litig., 157 F.Supp.2d 355, 359 (D.N.J.2001) (citing Wilson v. Rackmill, 878 F.2d 772, 775 (3d Cir.1989)); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). “The issue is not whether [the] plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)," }, { "docid": "23320917", "title": "", "text": "a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974), citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); Morales v. New York State Dep’t of Corrections, 842 F.2d 27, 30 (2d Cir.1988). The Court must accept plain tiffs allegations of facts as true, together with such reasonable inferences as may be drawn in its favor. See Murray v. Milford, 380 F.2d 468, 470 (2d Cir.1967). See also Scheuer, supra, 416 U.S. at 236, 94 S.Ct. at 1686. Fed.R.Civ.P. 8(a) requires only a “ ‘short and plain statement of the claim’ that will give the defendant fair notice of what plaintiffs claim is and the ground upon which it rests.” Conley, supra, 355 U.S. at 47, 78 S.Ct. at 103, quoting Fed.R.Civ.P. 8(a)(2), cited in Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984). “The function of a motion to dismiss ‘is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.’ ” Ryder Energy Distribution Corp. v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 779 (2d Cir.1984) (citation omitted). “Dismissal of a complaint for failure to state a claim is a ‘drastic step.’ ” Meyer v. Oppenheimer Management Corp., 764 F.2d 76, 80 (2d Cir.1985) (citation omitted). 2) Motion for Summary Judgment Rule 56(c) provides that summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” “ ‘Summary judgment is appropriate when, after drawing all reasonable inferences in favor of the party against whom summary judgment is sought, no reasonable trier of fact could find in favor of the non-moving party.’ ” Horn &" }, { "docid": "8811828", "title": "", "text": "claims of fraud and malicious use and abuse of process. I. Legal Standard In deciding a motion to dismiss for failure to state a claim, the court must “accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in a light most favorable to the non-moving party.” Rocks v. City of Philadelphia, 868 F.2d 644, 645 (3d Cir.1989). A complaint should not be dismissed unless it appears beyond doubt that plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984). A complaint may be dismissed when the facts pled and the reasonable inferences therefrom are legally insufficient to support the relief sought. Commonwealth ex rel. Zimmerman v. PepsiCo, 836 F.2d 173, 179 (3d Cir.1988). A motion to dismiss may be granted as to some portions of a complaint while denied as to others. Decker v. Massey-Ferguson, Ltd., 681 F.2d 111, 115 (2d Cir.1982); Fielding v. Brebbia, 399 F.2d 1003, 1006 (D.C.Cir.1968). Claims brought under RICO are subject to the same pleading standards as other claims under Rule 12(b)(6). See H.J., Inc. v. Northwestern Bell, 492 U.S. 229, 109 S.Ct. 2893, 2906, 106 L.Ed.2d 195 (1989); Rose v. Bartle, 871 F.2d 331, 355-56 (3d Cir.1989). II. Factual Allegations The pertinent allegations in the complaint, viewed in a light most favorable to the plaintiffs, are as follows. On July 8, 1981, plaintiff Jordan, on behalf of Joe J. Jordan, FAIA, Inc., a Pennsylvania corporation, executed a lease to rent the fifth floor of an office building at 1920 Chestnut Street in Philadelphia from defendant Arnold T. Berman, trading as H.P. Realty, for a term commencing September 1, 1981 and ending August 1, 1986. On or about October 1, 1981, plaintiffs Jordan and Mitchell formed Jordan, Mitchell, Inc., an architectural firm that operated out of said premises. On May 2, 1986, by its terms, this lease automatically renewed for a one-year period commencing August 1, 1986. On May" }, { "docid": "22788021", "title": "", "text": "and the district court are required to accept as true all allegations in the complaint and all reasonable inferences that can be drawn from them after construing them in the light most favorable to the non-movant. Rocks v. City of Philadelphia, 868 F.2d 644, 645 (3d Cir.1989); D.P. Enters., Inc. v. Bucks County Community College, 725 F.2d 943, 944 (3d Cir.1984). In determining whether a claim should be dismissed under Rule 12(b)(6), a court looks only to the facts alleged in the complaint and its attachments without reference to other parts of the record. Moreover, a ease should not be dismissed for failure to state a claim unless it clearly appears that no relief can be granted under any set of facts that could be proved consistently with the plaintiffs allegations. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232-33, 81 L.Ed.2d 59 (1984); D.P. Enters., 725 F.2d at 944. We also exercise plenary review over the appeal of Jordan Mitchell, Inc. from the district court’s order granting summary judgment to the Bermans, Sacred Heart Medical Ctr. v. Sullivan, 958 F.2d 537, 543 (3d Cir.1992), and, subsidiary to that question, over the district court’s interpretation of Pennsylvania law. Smith v. Calgon Carbon Corp., 917 F.2d 1338, 1345 (3d Cir.1990), cert. denied, 499 U.S. 966, 111 S.Ct. 1597, 113 L.Ed.2d 660 (1991). We look to the entire record in the case against the Bermans to determine whether there is any genuine dispute about a fact material to Jordan Mitchell, Inc.’s section 1983 claim which could support a final judgment for Jordan Mitchell, Inc. if resolved in its favor. All relevant evidence and all reasonable inferences that can be drawn from the record are, however, viewed in the light most favorable to the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513-14, 91 L.Ed.2d 202 (1986). Finally, we review the district court’s denial of the stockholders’ request for leave to amend the complaint for abuse of discretion. Lewis v. Curtis, 671 F.2d 779, 783 (3d Cir.), cert. denied, 459 U.S. 880," }, { "docid": "9773295", "title": "", "text": "807 F.2d 208, 215 (D.C.Cir.1986); Briscoe v. LaHue, 663 F.2d 713, 723 (7th Cir.1981), aff'd, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983); Western Mining Council v. Watt, 643 F.2d 618, 626 (9th Cir.), cert. denied, 454 U.S. 1031, 102 S.Ct. 567, 70 L.Ed.2d 474 (1981). A court may dismiss a complaint for failure to state a claim where it appears beyond doubt that no relief could be granted under any set of facts which could be proved consistent with the allegations. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232-33, 81 L.Ed.2d 59 (1984); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); Unger, 928 F.2d at 1395; Markowitz, 906 F.2d at 103; Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir.1988). However, “a complaint should not be dismissed for failure to state a claim unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley, 355 U.S. at 45-46, 78 S.Ct. at 102; accord Cruz v. Beto, 405 U.S. 319, 321, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263 (1972); Unger, 928 F.2d at 1395; Angelastro v. Prudential-Bache Secur., Inc., 764 F.2d 939, 944 (3d Cir.1985), cert. denied, 474 U.S. 935, 106 S.Ct. 267, 88 L.Ed.2d 274 (1985). A Federal court reviewing the sufficiency of the complaint has a limited role. “The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support his claims.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); see also Estate of Bailey v. County of York, 768 F.2d 503, 506 (3d Cir.1985). “When making a determination under Rule 12(b)(6), the court cannot consider matters outside the pleadings.” Wiley v. Hughes Capital Corp., 746 F.Supp. 1264, 1275 (D.N.J. 1990); see Allison v. General Motors Corp., 604 F.Supp. 1106, 1119 (D.Del.), aff'd, 782 F.2d 1026 (3d Cir.1985). a. Qualified Immunity and Biase’ Bivens Claims As indicated, Counts I through III seek" }, { "docid": "9549145", "title": "", "text": "Count IV. In his amended complaint, plaintiff alleges that defendant falsely accused plaintiff of sexually harassing employees in his division, specifically “one Holly Reic-hert, by allegedly asking her out socially, allegedly touching her offensively, alleg edly making sexual advances and comments, allegedly sending sexually oriented notes to employees in his division.” (Amended Complaint at 1122). Plaintiff claims that these accusations which became public were “humiliating, defamatory and insulting to plaintiff, and showed a conscious disregard for the rights of plaintiff.” (Amended Complaint at ¶ 25). Defendant now moves to dismiss the amended Count IV. Discussion F.R.Civ.P. 12(b)(6) instructs a court to dismiss a case for failure to state a cause of action only if it appears to a certainty that no relief could be granted under any set of facts which could be proved. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232-33, 81 L.Ed.2d 59 (1984). The issue is not whether plaintiffs will ultimately prevail, but whether they are entitled to offer evidence to support the claim. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). Because granting such a motion results in a determination on the merits at such an early stage of plaintiffs’ case, “ ‘we must take all the well pleaded allegations as true, construe the complaint in the light most favorable to the plaintiff,’ and determine whether, under any reasonable reading of the pleadings, the plaintiff may be entitled to relief.” Colburn v. Upper Darby Township, 838 F.2d 663, 665 (3d Cir.1988) (quoting Estate of Bailey by Oare v. County of York, 768 F.2d 503, 506 (3d Cir.1985)), cert. denied, — U.S. -, 109 S.Ct. 1338, 103 L.Ed.2d 808 (1989). Defendant argues that we should dismiss plaintiff’s claim for intentional infliction of emotional distress because under Pennsylvania law, such a claim against one’s employer is completely barred by the Pennsylvania Workmen’s Compensation Act and because it fails to allege the extreme and outrageous conduct and the severe emotional distress necessary to state such a claim. We agree. In pertinent part, the exclusivity provision of the" }, { "docid": "13805196", "title": "", "text": "state a claim upon which relief may be granted. DISCUSSION I. Standard of Review Under Rule 12(b)(6) A motion to dismiss for failure to state a claim upon which relief may be granted under Rule 12(b)(6) serves to test the sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir.1993). In deciding such a motion, the Court must accept as true all allegations contained in the complaint and construe all reasonable inferences drawn therefrom in the light most favorable to the plaintiff. Morse v. Lower Merion Sch. Dist, 132 F.3d 902, 906 (3d Cir.1997); Rogin v. Bensalem Township, 616 F.2d 680, 685 (3d Cir.1980). The Federal Rules of Civil Procedure do not require a plaintiff to set out detailed facts to support its claims, but require only a short and plain statement of the claims which provides the defendant with fair notice of the nature thereof and the grounds upon which they rest. Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957); see also Fed. R. Bankr.P. 7008 . “The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support [its] claims.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984). Therefore, the Court should not grant a Rule 12(b)(6) motion “unless is appears beyond doubt that the plaintiff can prove no set of facts in support of [its] claim which would entitle [it] to relief.” Conley, 355 U.S. at 45-46, 78 S.Ct. 99. In addition, Rule 12(b)(6) authorizes the Court to dismiss a claim on a dispositive issue of law. Neitzke v. Williams, 490 U.S. 319, 326, 109 S.Ct. 1827, 1832, 104 L.Ed.2d 338 (1989) (citing Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984)). In determining whether a claim should be dismissed pursuant to Rule 12(b)(6), the Court may look only to the allegations contained in the Complaint" }, { "docid": "20987588", "title": "", "text": "Willis, 789 S.W.2d 307, 312 (Tex.App.—Houston [14th Dist.] 1990, writ denied). The Texas Supreme Court has noted that the tort of breach of the duty of good faith and fair dealing has been found only in certain “special relationships,” and has expressly “declined to recognize a general duty of good faith and fair dealing in the employer-employee relationship.” Federal Express Corp., 846 S.W.2d at 284 n. 1. Hence, summary judgment is appropriate as to this claim. B. Vera Patton’s Claims 1. The Standard for Dismissal under Rule 12(b)(6) A motion to dismiss under Fed. R.Civ.P. 12(b)(6) tests only the formal sufficiency of the statements of the claims for relief. It is not a procedure for resolving contests about the facts or the merits of the case. In ruling on a motion to dismiss, the court must take the plaintiff’s allegations as true, view them in a light most favorable to her, and draw all inferences in her favor. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); see also Capital Parks, Inc. v. Southeastern Advertising & Sales Sys., Inc., 30 F.3d 627, 629 (5th Cir.1994); Fernandez-Montes v. Allied Pilots Ass’n, 987 F.2d 278, 284-85 (5th Cir. 1993). Moreover, the court may not look beyond the four corners of the plaintiffs pleadings. McCartney v. First City Bank, 970 F.2d 45, 47 (5th Cir.1992). Thus, the motion must be denied unless it appears to a certainty that the plaintiff can prove no set of facts in support of her claim that would entitle her to relief. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir.1995); In re U.S. Abatement Corp., 39 F.3d 556, 559 (5th Cir.1994); ALX El Dorado, Inc. v. Southwest Sav. & Loan Ass’n, 36 F.3d 409, 410 (5th Cir.1994); McCartney, 970 F.2d at 47. 2. Title VII and TCHRA Claims [99,100] “Title VII actions against employers for discriminatory employment" }, { "docid": "10591879", "title": "", "text": "him to relief.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). A district court must accept any and all reasonable inferences derived from those facts. Glenside West Corp. v. Exxon Co., U.S.A., 761 F.Supp. 1100, 1107 (D.N.J.1991); Gutman v. Howard Sav. Bank, 748 F.Supp. 254, 260 (D.N.J.1990). Further, the court must view all allegations in the complaint in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir.1994). It is not necessary for the plaintiff to plead evidence, and it is generally not necessary to plead the facts that serve as the basis for the claim. Bogosian v. Gulf Oil Corp., 561 F.2d 434, 446 (3d Cir.1977); In re Midlantic Corp. Shareholder Litigation, 758 F.Supp. 226, 230 (D.N.J.1990). The question before the court is not whether plaintiffs will ultimately prevail; rather, it is whether they can prove any set of facts in support of their claims that would entitle them to relief. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984). In other words, in deciding a motion to dismiss, a court should look to the face of the complaint and decide whether, taking all of the allegations of fact as true and construing them in a light most favorable to the non-movant, plaintiffs allegations state a legal claim. Markowitz, 906 F.2d at 103. III. DISCUSSION The issue presented by this motion turns on the statutory definition of “employer” under the FMLA. When called upon to interpret a statute, courts must always begin with the statute’s plain language. Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997). Where “the statutory language is unambiguous and ‘the statutory scheme is coherent and consistent,’ ” a court cannot look farther. Id. (quoting United States v. Ron Pair Enters., Inc., 489 U.S. 235, 240, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989)). Subsection (4) of Section 2611 provides, in full:" }, { "docid": "19696081", "title": "", "text": "82 F.3d 63, 65 (3d Cir.1996); Pieckniek v. Pennsylvania, 36 F.3d 1250, 1255 (3d Cir.1994); Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir.1994). Nonetheless, legal conclusions made in the guise of factual allegations are not given a presumption of truthfulness. See Bermingham v. Sony Corp. of Am., Inc., 820 F.Supp. 834, 846 (D.N.J.1992), aff'd, 37 F.3d 1485 (3d Cir.1994). Although a court must assume the truth of all facts alleged, it is improper to presume a plaintiff can prove any facts hot alleged in the Complaint. Associated General Contractors v. California State Council of Carpenters, 459 U.S. 519, 526, 103 S.Ct. 897, 902, 74 L.Ed.2d 723 (1983). A court may dismiss a complaint for failure to state a claim “only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.” Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957)); see Hartford Fire Ins. Co. v. California, 509 U.S. 764, 811, 113 S.Ct. 2891, 2916-17, 125 L.Ed.2d 612 (1993); In re Westinghouse Securities Litigation, 90 F.3d at 706 (dismissal only appropriate where “it appears certain the plaintiffs can prove no set of facts entitling them to relief’); Piecknick, 36 F.3d at 1255. A Federal court reviewing the sufficiency of a complaint has a limited role. “The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Estate of Bailey v. County of York, 768 F.2d 503, 506 (3d Cir.1985), overruled on other grounds, DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. 189, 197-98, 109 S.Ct. 998, 1004-05, 103 L.Ed.2d 249 (1989). As indicated, in the instant case, the Defendants seek to dismiss counts VI, XI and XII entirely and to dismiss counts I, III and V counts as against Doyle" }, { "docid": "9770751", "title": "", "text": "Chief of Police Dale Repp, and various unknown officers of the City of Pottsville Police Department. Plaintiff also asserts a state law survival action and brings state law claims of wrongful death against above defendants. Complaint, ¶27, 31, 45, 49, 63, 67. II. MOTION TO DISMISS STANDARD A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the complaint. See Sturm v. Clark, 835 F.2d 1009, 1011 (3d Cir.1987). The Rule 12(b)(6) motion does not attack the merits of the case, but merely challenges the pleader’s failure to state a claim properly. 5a C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 1364, at 340 (1990). In deciding a 12(b)(6) motion, the court must determine whether plaintiffs complaint sets forth sufficient allegations to establish a claim for relief. The court must accept all allegations in the complaint at “face value” and construe them in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Wisniewski v. Johns-Manville Corp., 759 F.2d 271 (3d Cir.1985). Generally, the complaint must set forth enough information to outline the elements of a claim or to permit inferences to be drawn that these elements exist. Jenkins v. McKeithen, 395 U.S. 411, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969); Pennsylvania ex rel. Zimmerman v. Pepsico, Inc., 836 F.2d 173, 179 (3d Cir.1988). The court can dismiss plaintiffs complaint “only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.” Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101, 2 L.Ed.2d 80, 84 (1957)). Conelusory allegations are not acceptable, however, where no facts are alleged to support the conclusion or where the allegations are contradicted by the facts themselves. Id. In addition to the above general requirements, courts have set forth heightened specificity requirements for pleadings in Section 1983 claims. The dual policy concerns of protecting state officials" }, { "docid": "10479811", "title": "", "text": "MEMORANDUM WALDMAN, District Judge. I. BACKGROUND Plaintiff initiated this action in the Court of Common Pleas of Delaware County by summons on March 3, 1992. Defendant removed the action to this court where on June 2, 1992 the Honorable Clarence Newcomer remanded it to state court. Plaintiff did not file a complaint in the Common Pleas Court until March 28, 1994. In that complaint, plaintiff asserts wrongful death and survival claims against defendant for negligence, misrepresentation and breach of contract, and for the malpractice of a physician in failing properly to diagnose and treat the decedent for which defendant allegedly is vicariously liable. Defendant again removed the case to this court pursuant to 28 U.S.C. § 1441(b) on the ground that plaintiff's claims arise under and are preempted by ERISA. Presently before the court is defendant’s motion to dismiss for failure to state a cognizable claim. II. LEGAL STANDARD The purpose of a Rule 12(b)(6) motion is to test the legal sufficiency of a complaint. Sturm v. Clark, 835 F.2d 1009, 1011 (3d Cir.1987). In deciding a motion to dismiss for failure to state a claim, the court must “accept as true all the allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the nonmoving party.” Rocks v. Philadelphia, 868 F.2d 644, 645 (3d Cir.1989). Dismissal is not appropriate unless it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232-33, 81 L.Ed.2d 59 (1984); Robb v. Philadelphia, 733 F.2d 286, 290 (3d Cir.1984). A complaint may be dismissed when the facts pled and the reasonable inferences therefrom are legally insufficient to support the relief sought. Pennsylvania ex. rel. Zimmerman v. Pepsico, Inc., 836 F.2d 173, 179 (3d Cir.1988). III. FACTS The pertinent facts as alleged by and taken in a light most favorable to plaintiff are as follow. The decedent was employed by Scott Paper Company where he was a participant" }, { "docid": "13736821", "title": "", "text": "of plaintiffs’ claims. Specifically, Rudolph’s state law claims relate to the plaintiff’s claim of failure to disclose a latent defect. Rudolph alleges that if plaintiffs prove that Rudolph should have known of the existence of hazardous substances on the property in question, or should have informed plaintiffs of the existence of the substances, Hough/Loew’s breach of its duty to inform Rudolph of any adverse conditions on the property caused the failure. Rudolph contends that the duty arose by virtue of Hough/Loew’s position as equitable owner and exclusive manager and developer of the property. Thus, Rudolph seeks indemnification for any liability imposed on them for failing to disclose the defects. Despite our doubts about the ultimate success of this position, it would be inappropriate to deny Rudolph the opportunity to establish the necessary facts to support its claim. Hough/Loew also argues that Rudolph’s claim for indemnification fails to state a claim upon which relief can be granted. F.R.Civ.P. 12(b)(6) instructs a court to dismiss a case for failure to state a cause of action only if it appears to a certainty that no relief could be granted under any set of facts which could be proved. Hishon v. King & Spalding, 467 U.S. 69, 78, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984). The issue is not whether the third-party plaintiff will ultimately prevail, but whether it is entitled to offer evidence to support the claim. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). Because granting such a motion results in a determination on the merits at such an early stage of third-party plaintiffs case, “ ‘we must take all the well pleaded allegations as true, construe the complaint in the light most favorable to the [third-party] plaintiff,’ and determine whether, under any reasonable reading of the pleadings, the [third-party] plaintiff may be entitled to relief.” Colburn v. Upper Darby Township, 838 F.2d 663, 664-65 (3d Cir.1988) (quoting Estate of Bailey by Oare v. County of York, 768 F.2d 503, 506 (3d Cir.1985)), cert. denied, — U.S. -, 109 S.Ct. 1338, 103 L.Ed.2d 808" }, { "docid": "15712774", "title": "", "text": "the Due Process Clause of the Fourteenth Amendment to the United States Constitution (invoked through § 1983). Complaint, MI 41-42. Count IV asserts that the governmental defendants violated her rights, as secured by various sections of the Constitution of the Commonwealth of Pennsylvania. Complaint, ITU 43-44. Count V seeks attorney’s fees from the governmental defendants pursuant to 42 U.S.C. § 1988. Complaint, ¶¶ 45-46. Counts VI and VII proceed against Meridian Bancorp (“Meridian”). Count VI states that Meridian breached its duty to provide appropriate safety measures (or, alternatively, to warn in case of their absence) to protect Coffman, a business invitee. Complaint, ¶¶ 47-52. Count VII states that, by failing to provide Coffman with assistance, Meridian negligently breached its duty to aid Coffman, a duty stemming from Meridian’s holding its premises open for business purposes. Complaint, ¶¶ 53-57. Jurisdiction rests upon 28 U.S.C. § 1343 for the federal claims, with the state law claims pendent. The governmental defendants have moved to dismiss all counts of the complaint. II. DISCUSSION Under Fed.R.Civ.P. 12(b)(6), “[t]he applicable standard of review requires the court to accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the non-moving party.” Rocks v. City of Philadelphia, 868 F.2d 644, 645 (3d Cir. 1989). The question before the court is not whether the plaintiff will ultimately prevail; rather, it is whether the plaintiff could prove any set of facts in support of his claim that would entitle the plaintiff to relief. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984); Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). In cases brought under 42 U.S.C. § 1983, the pleading requirements are somewhat stricter than usual. The Court of Appeals “ ‘has consistently demanded that a civil rights complaint contain a modicum of factual specificity, identifying the particular conduct of defendants that is alleged to have harmed the plaintiffs.’ ” Colburn v. Upper Darby Township, 838 F.2d 663, 666 (3d" }, { "docid": "13736822", "title": "", "text": "it appears to a certainty that no relief could be granted under any set of facts which could be proved. Hishon v. King & Spalding, 467 U.S. 69, 78, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984). The issue is not whether the third-party plaintiff will ultimately prevail, but whether it is entitled to offer evidence to support the claim. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). Because granting such a motion results in a determination on the merits at such an early stage of third-party plaintiffs case, “ ‘we must take all the well pleaded allegations as true, construe the complaint in the light most favorable to the [third-party] plaintiff,’ and determine whether, under any reasonable reading of the pleadings, the [third-party] plaintiff may be entitled to relief.” Colburn v. Upper Darby Township, 838 F.2d 663, 664-65 (3d Cir.1988) (quoting Estate of Bailey by Oare v. County of York, 768 F.2d 503, 506 (3d Cir.1985)), cert. denied, — U.S. -, 109 S.Ct. 1338, 103 L.Ed.2d 808 (1989). Hough/Loew contends that Rudolph does not have a contractual right of indemnity because the relevant provision provides no basis for indemnification or contribution. The indemnity clause of the agreement provides as follows: [Hough] Loew agrees to indemnify and hold harmless [Rudolph] Partnership from any claims, suits, or damages which may arise due to Loew’s actions in developing said premises. Although on its face it may appear that “actions in developing” do not include a duty to discover defects in the property, the contract could, depending on the circumstances, permit a broader interpretation. It would be inappropriate at this stage to allow only for the most narrow construction of the contract. Hough/Loew also asserts that Rudolph has no basis for asserting a claim for common law indemnification. Pennsylvania law is clear that a party who is secondarily liable may recover from one who is primarily liable to plaintiff. Common law right of indemnity is a fault-shifting mechanism, available to a defendant who is held liable to a plaintiff by operation of law, but who seeks" }, { "docid": "19690796", "title": "", "text": "a pro se complaint, it is axiomatic that the court must construe it liberally, applying less stringent standards than when counsel prepared the pleading. Hughes v. Roe, 449 U.S. 5, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980). When considering any motion pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss the complaint for failure to state a claim, the court accepts as true all factual allegations in the complaint and draws inferences from these allegations in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Easton v. Sundram, 947 F.2d 1011, 1014-15 (2d Cir.1991), cert. denied, 504 U.S. 911, 112 S.Ct. 1943, 118 L.Ed.2d 548 (1992). Scheuer, 416 U.S. at 236, 94 S.Ct. at 1686. Dismissal is warranted only if, under any set of facts that the plaintiff can prove consistent with the allegations, it is clear that no relief can be granted. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232-33, 81 L.Ed.2d 59 (1984); Frasier v. General Elec. Co., 930 F.2d 1004, 1007 (2d Cir.1991). The issue [on a motion to dismiss] is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test. B. Exhaustion of Administrative Remedies Suits against federal agencies under Title VII, the ADEA, and the Rehabilitation Act are governed by regulations promulgated by the United States Equal Employment Opportunity Commission (“EEOC”), the current version of which are set forth at 29 C.F.R. §§ 1614.101 et seq. (1993). These regulations establish a comprehensive system to resolve discrimination claims administratively. This administrative mechanism serves two vital purposes: (1) “giv[ing] the administrative agency the opportunity to investigate, mediate and take remedial action,” Stewart v. INS, 762 F.2d 193,198 (2d Cir.1985); and (2) “encouraging] settlement of discrimination disputes through conciliation and voluntary compliance,” Miller v. Inter. Tel. and Tel. Corp., 755 F.2d 20," }, { "docid": "22446052", "title": "", "text": "dismissed the action without leave to amend on the ground that it was time-barred. Cervantes appeals, arguing that equitable tolling saves his otherwise untimely claim. II In federal court, dismissal for failure to state a claim is proper “only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.” Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984). Review is limited to the complaint; “evidence outside the pleadings ... cannot normally be considered in deciding a 12(b)(6) motion.” Farr v. United States, 990 F.2d 451, 454 (9th Cir.1993). “The issue is not whether a plaintiff will ultimately prevail but whether [he] is entitled to offer evidence to support the claims.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974) (emphasis added). Thus, “[w]hen a motion to dismiss is based on the running of the statute of limitations, it can be granted only if the assertions of the complaint, read with the required liberality, would not permit the plaintiff to prove that the statute was tolled.” Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir.1980). California’s one-year statute of limitations for personal injury actions applies to Cervantes’ section 1983 claim. See Wilson v. Garcia, 471 U.S. 261, 276, 105 S.Ct. 1938, 1947, 85 L.Ed.2d 254 (1985); Usher v. City of Los Angeles, 828 F.2d 556, 558 (9th Cir.1987). Cervantes concedes that, absent equitable tolling, his claim would be time-barred. As with the limitations period itself, we borrow our rules for equitable tolling of the period from the forum state, California. See Hardin v. Straub, 490 U.S. 536, 109 S.Ct. 1998, 104 L.Ed.2d 582 (1989); Harding v. Galceran, 889 F.2d 906, 907 (9th Cir.1989). California courts “have liberally applied tolling rules or their functional equivalents to situations in which the plaintiff has. satisfied the notification purpose of a limitations statute.” Elkins v. Derby, 12 Cal.3d 410, 418, 115 Cal.Rptr. 641, 647, 525 P.2d 81, 87 (1974). Consistent with this tradition, the doctrine" }, { "docid": "15712775", "title": "", "text": "of review requires the court to accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the non-moving party.” Rocks v. City of Philadelphia, 868 F.2d 644, 645 (3d Cir. 1989). The question before the court is not whether the plaintiff will ultimately prevail; rather, it is whether the plaintiff could prove any set of facts in support of his claim that would entitle the plaintiff to relief. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984); Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). In cases brought under 42 U.S.C. § 1983, the pleading requirements are somewhat stricter than usual. The Court of Appeals “ ‘has consistently demanded that a civil rights complaint contain a modicum of factual specificity, identifying the particular conduct of defendants that is alleged to have harmed the plaintiffs.’ ” Colburn v. Upper Darby Township, 838 F.2d 663, 666 (3d Cir.1988) (quoting Ross v. Meagan, 638 F.2d 646, 650 (3d Cir.1981) (per curiam)), cert. denied, — U.S.-, 109 S.Ct. 1338, 103 L.Ed.2d 808 (1989). To meet this requirement, the complaint need only avoid frivolity and provide the defendants enough notice to frame an answer. Freedman v. City of Allentown, 853 F.2d 1111, 1114 (3d Cir.1988). The basic Rule 12(b)(6) standard is unchanged. Bartholomew v. Fischl, 782 F.2d 1148, 1152 (3d Cir.1986). A. Count I The governmental defendants attack Count I on several grounds. First, they maintain that allegations, here and elsewhere, against both the Borough of Wilson and the Wilson Police Department are redundant, because the Department is an administrative part of the Borough. Thus, they argue that the Department should be dismissed from this action. Second, they argue that, if the claim against Nace rests against actions taken in his official capacity, it merges with the claim against Wilson; hence, Wilson should also be dismissed. If, on the other hand, the claim against Nace rests on actions taken in his individual capacity, the complaint" }, { "docid": "11410920", "title": "", "text": "all allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the non-moving party. Rocks v. City of Philadelphia, 868 F.2d 644, 645 (3d Cir.1989). The Court need not determine whether the plaintiff will ultimately prevail; rather, it must determine whether the plaintiff can prove any set of facts to support his claim that would entitle him to prevail. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984). The defendant carries the burden of establishing that no claim has been presented. Curry v. Huyett, 1994 WL 111357 *1 (E.D.Pa.). Has Plaintiff Alleged A § 1983 Claim? In order to state a claim under § 1983, a plaintiff must allege two things: 1) the violation of a right secured by the Constitution and laws of the United States; and 2) the commission of the deprivation by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 2254, 101 L.Ed.2d 40 (1988); Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 1923, 64 L.Ed.2d 572(1980); Buzzanco v. Lord Corp., 173 F.Supp.2d 376, 381 (E.D.Pa.2001); Breslin v. Brainard, 2002 WL 31513425 *3 (E.D.Pa.). As is shown below, the Plaintiff has plainly set forth the first requirement, but it is unclear whether she has adequately plead the second. Is a Constitutional Violation Alleged? The Complaint alleges that the County’s decision to serve the rule by publication when it had confirmed the Plaintiffs mailing address is constitutionally inadequate. Complaint, Count I. The County defends its action arguing the Pennsylvania rules of procedure provide for published service. Motion, 8. Does publication service pass constitutional muster when other, more direct methods, are available? Beginning with Mullane v. Central Hanover Bank & Trust, 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950), the Supreme Court has consistently made clear that service by publication alone failed the “elementary and fundamental requirement of due process ... which is to ... apprise interested parties of the pen-dency of the action and" }, { "docid": "20145153", "title": "", "text": "facts which could be proved consistent with the allegations. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957); Unger, 928 F.2d at 1395 (3d Cir); Markowitz, 906 F.2d at 103; Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir.1988). However, “a complaint should not be dismissed for failure to state a claim unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley, 355 U.S. at 45-46, 78 S.Ct. at 102; accord Cruz v. Beto, 405 U.S. 319, 321, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263 (1972); Unger, 928 F.2d at 1395; Angelastro v. Prudential-Bache Secur., Inc., 764 F.2d 939, 944 (3d Cir.), cert. denied, 474 U.S. 935, 106 S.Ct. 267, 88 L.Ed.2d 274 (1985). Additionally, the Supreme Court has stated that a federal court reviewing the sufficiency of the complaint has a limited role. “The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support his claims.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); see also Estate of Bailey v. County of York, 768 F.2d 503, 506 (3d Cir. 1985). B. Eleventh Amendment Immunity The Eleventh Amendment states: The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. U.S. Const. Amend. XI. Well established law governs application of the Eleventh Amendment. Feeney, 495 U.S. at 304, 110 S.Ct. at 1872. As the Supreme Court has recently stated: Since Hans v. Louisiana, 134 U.S. 1 [10 S.Ct. 504, 33 L.Ed. 842] (1890), we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition of our constitutional structure which it affirms: that the" } ]

[ { "docid": "11923267", "title": "", "text": "passed by the legislative department. By 5 U.S.C.A. § 22, Congress has authorized the head of each executive department (expressly including the Department of Justice) “ * * * to prescribe regulations, not inconsistent with law, for the government of his department, the conduct of its officers and clerks, the distribution and performance of of its business, and the custody, use, and preservation of the records, papers, and property appertaining to it. * * * ” Such regulations are presumably valid, unless arbitrary and unreasonable or plainly inconsistent with law. Edwards v. Madigan, 9 Cir., 281 F.2d 73, 77 (1960). In the case at bar, Order 260-62 is a regulation not inconsistent with law and there is no contention to the contrary in this case. As such, the order has the force and effect of law. United States v. Barnard, 10 Cir., 255 F.2d 583, 589 (1958), cert. den. 358 U.S. 919, 79 S.Ct. 287, 3 L.Ed.2d 238. We have given recognition to this principle. United States v. Ansani, 7 Cir., 240 F.2d 216, 224 (1957), cert. den. sub nom. Milner v. United States, 353 U.S. 936, 77 S.Ct. 813, 1 L.Ed.2d 759. United States ex rel. Touhy v. Hagen, 7 Cir., 180 F.2d 321, 325 (1950), affirmed 340 U.S. 462, 71 S.Ct. 416, 95 L.Ed. 417; and United States ex rel. Touhy v. Ragen, 7 Cir., 200 F.2d 195 (1952). Therefore, in determining whether Johnson was justified in his refusal to answer the questions put to him in the district court, we are confined by 5 U.S. C.A. § 22 to an examination of Order 260-62. As to specification I, he was protected by Order 260-62. It is obvious that this is so because, if Johnson answered that he had received the telegram marked plaintiff’s exhibit 5 for identification, the fact would have been established thereby that it was in the files of the Department of Justice. On the other hand, as to specifications II and III, no application of Order 260-62 was involved. Johnson was asked merely to answer whether he had occasion to call attorney Leighton in" } ]

[ { "docid": "7798435", "title": "", "text": "as ones “executed under any law of the United States”, within the meaning of 28 U.S.C. § 1352, and the present suit as an action on such bonds. We really have decided this issue before. Although the comment in Continental Cas. Co. v. United States for Use and Benefit of Robertson Lumber Co., 305 F.2d 794, 798 (8 Cir. 1962), cert. denied 371 U.S. 922, 83 S.Ct. 290, 9 L.Ed.2d 231, was by way of a footnote, and is characterized by the defense here as dictum, this court clearly recognized in that opinion the efficacy and the applicability of § 1352 when it said, “A Capehart bond is clearly a bond required by a ‘law of the United States,’ hence, federal jurisdiction of a suit on such a bond is established without regard to any relationship between the Miller Act and the Capehart Act.” And in the very recent case of D & L Constr. Co. v. Triangle Elec. Supply Co., 332 F.2d 1009, 1011-1012 (8 Cir. 1964), another panel of this court twice referred to a Capehart bond as one “required by federal law”. Other Capehart cases to the same effect are National State Bank of Newark v. Terminal Constr. Corp., 217 F.Supp. 341, 349 (D.N.J.1963), aff’d on the district court’s opinion, 328 F.2d 315 (3 Cir.); United States for Use and Benefit of Miles Lumber Co. v. Harrison & Grimshaw Constr. Co., 305 F.2d 363, 366 (10 Cir. 1962), cert. denied, 371 U.S. 920, 83 S.Ct. 287, 9 L.Ed.2d 229; Lasley v. United States for Use of Westerman, 285 F.2d 98, 100 (5 Cir. 1960); United States for Use and Benefit of Fine v. Travelers Indem. Co., 215 F.Supp. 455, 459 (W.D.Mo.1963); Northwest Lumber Sales, Inc. v. S. S. Silberblatt, Inc., 211 F.Supp. 749, 750 (E.D.Mo.1962); Autrey v. Williams & Dunlap, 210 F.Supp. 491, 497 (W.D.La.1962); Minneapolis-Honeywell Regulator Co. v. Terminal Constr. Corp., 41 N.J. 500, 197 A.2d 557, 563 (1964). Miller bond cases of like tenor are United States for Use and Benefit of Bryant Elec. Co. v. Aetna Cas. & Sur. Co., 297 F.2d 665, 669" }, { "docid": "14337600", "title": "", "text": "disputes, even in the context of Indian housing authority projects. Under 28 U.S.C. § 1352, the district courts have (nonexclusive) jurisdiction “of any action on a bond executed under any law of the United States, except matters within the jurisdiction of the Court of International Trade.” This jurisdictional grant applies when a bond has been required by regulations having the force of law. See, e.g., United States ex rel. Empire Plastics Corp. v. Western Casualty & Sur. Co., 429 F.2d 905, 906 (10th Cir.1970) (bid bond required under federal procurement regulations); Adams v. Greeson, 300 F.2d 555, 557 (10th Cir.1962) (livestock dealer’s bond required under agricultural regulations). Accordingly, the Ninth Circuit relied on § 1352 to hold that federal question jurisdiction could be asserted over a bond action arising out of an Indian housing authority project, despite the inapplicability of the Miller Act, because the bond was issued in compliance with the regulation discussed above specifying the forms of payment-assurance required for such projects. See United States ex rel. Newton v. Neumann Caribbean Int’l, Ltd., 750 F.2d 1422, 1424-25 (9th Cir.1985) (citing 24 C.F.R. § 805.203(c), now 24 C.F.R. § 905.170(a) (1994)). This alternative jurisdictional basis is of no avail here, however, as § 1352 refers only to “bonds,” and plaintiff, which never invoked the statute, has offered no argument for an extension of its plain terms to cover the letter of credit issued by Zions. II Although the complaint refers only to federal question jurisdiction, on appeal plaintiff contends that the presence of diversity jurisdiction is also apparent from the face of its pleading. “The party seeking the exercise of jurisdiction in his favor ‘must allege in his pleading the facts essential to show jurisdiction.’ ” Penteco Corp. v. Union Gas Sys., Inc., 929 F.2d 1519, 1521 (10th Cir.1991) (quoting McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936)). For purposes of diversity, these facts are that “the matter in controversy exceeds the sum or value of $50,-000 ... and is between ... citizens of different States.” 28 U.S.C. §" }, { "docid": "11415423", "title": "", "text": "the above regulations, under which the bond was issued, may be deemed the law of the United States within the meaning of Section 1352. It has long since been settled that “ * * * a regulation by a department of government, addressed to and reasonably adapted to the enforcement of an act of Congress, the administration of which is confided to such department, has the force and effect of law if it be not in conflict with express statutory provision.” Maryland Casualty Co. v. United States, 1919, 251 U.S. 342, 349, 40 S.Ct. 155, 64 L.Ed. 297. More recently, in G. L. Christian and Associates v. United States, 1963, 312 F.2d 418, 424, the Court of Claims in referring to a section of the Armed Services Procurement Regulations with respect to the question of the applicability of the standard termination clause to a housing contract under the Capehart Act, stated: “As the Armed Services Procurement Regulations were issued under statutory authority, those regulations, including Section 8.703, had the force and effect of law. See Williams v. Commissioner of Internal Revenue, 44 F.2d 467, 468 (C.A.8, 1930); Ex parte Sackett, 74 F.2d 922-923 (C.A.9, 1935) * * * ”. Similarly, regulations issued by the Secretary of Agriculture under the Packers and Stockyards Act, 7 U.S.C.A. § 204, requiring market agencies and dealers in livestock to furnish specified bonds, have been deemed to have the force and effect of law for the purpose of permitting this Court to entertain suits under such bonds under Section 1352. Adams v. Greeson, 10 Cir., 1962, 300 F.2d 555; Hartford Accident and Indemnity Co. v. Baldwin, 8 Cir., 1958, 262 F.2d 202. Accordingly, the bond in this case was executed under the law of the United States. II Defendant urges that even if the Court has jurisdiction under the bid bond, plaintiffs are not entitled to sue thereunder, claiming that the bond was never intended to benefit plaintiffs as indicated by the wording of the bond, and the fact that plaintiffs were not parties to the bond, citing Pidgeon Thomas Iron Co. v. Leflore County," }, { "docid": "8582583", "title": "", "text": "Buddy Systems’ position. Cases which have specifically entertained jurisdiction under section 1352 all involve suits on existing security instruments. E. g., Hays Livestock Commission Co. v. Maly Livestock Commission Co., 498 F.2d 925, 932 (10th Cir. 1974); United States v. Western Casualty & Surety Co., 429 F.2d 905, 906 (10th Cir. 1970); United States v. Kimrey, 489 F.2d 339, 341 (8th Cir. 1974). Nor can it be persuasively argued that the refusal to find section 1352 jurisdiction over Exer-Genie’s exonerated bond allows district judges unilaterally to abrogate federal jurisdiction. It must be conceded that this occurs every time a district judge decides an issue of jurisdiction incorrectly. Appellate courts exist to afford parties an opportunity to rectify these mistakes. Stoll v. Gottlieb, 305 U.S. 165, 171-75, 59 S.Ct. 134, 83 L.Ed. 104 (1938); see also Durfee v. Duke, 375 U.S. 106, 84 S.Ct. 242, 11 L.Ed.2d 186 (1963). Whether by neglect or strategy, Buddy Systems did not avail itself of a similar opportunity. We cannot save Buddy Systems from its blunder when the end result will be to override the clearly expressed intent of Congress in its allocation of federal jurisdiction. REVERSED AND REMANDED. . The district courts shall have original jurisdiction, concurrent with State courts, of any action on a bond executed under any law of the United States. 28 U.S.C. § 1352. . The district court’s order required that: Pursuant to Rule 65(c) of the Federal Rules of Civil Procedure, the plaintiffs herein shall give security in the sum. of One Hundred Thousand Dollars ($100,000.00), by a corporate surety bond, or by a treasury bond or a certificate of deposit payable to Clerk, United States District Court, for the payment of such costs and damages as may be incurred or suffered by any party who is found to be wrongfully enjoined or restrained. . There is one exception. Where a bond (specialty) is coextensive with a simple contract debt secured by it, the contract debt is deemed to have merged into the specialty. 12 Hals-bury’s Laws of England § 1411 (4th ed. 19.75). . For example, liability on" }, { "docid": "455129", "title": "", "text": "of Victory Electric Corp. v. Maryland Cas. Co., 213 F.Supp. 800, 803 (E.D.N.Y.1962), on rehearing 215 F.Supp. 700, 701-702. On the merits, Empire takes the position that the bid bond’s promise to “give such good and sufficient bond or bonds as may be required * * * ” necessarily obligated Hayes and Western to secure a statutory payment bond and that this obligation was necessarily intended for the benefit of third-party laborers and materialmen. We agree. Hayes’ $41,447.00 contract for the repair of the Exchange’s buildings was undoubtedly subject to the Miller Act, which required a payment bond on contracts “exceeding $2,000 in amount, for the construction, alteration, or repair of any public building or public work of the United States. * * *” 40 U.S.C. § 270a. And see 41 C.F.R. §§ 1-10.105-1, 1-10.103-1 (a). Although the Exchange is a non-appropriated fund activity, title to the buildings it uses on the military base is in the United States and the contract was thus one for the repair of public buildings of the United States. See United States for the Use of Gamerston & Green Lumber Co. v. Phoenix Assurance Co., 163 F.Supp. 713 (N.D.Cal.1958); cf. United States for the Use and Benefit of Miles Lumber Co. v. Harrison & Grimshaw Constr. Co., 305 F.2d 363, 366 (10th Cir. 1962). In sum, Hayes’ and Western’s promise in the bid bond to give “such good and sufficient bond or bonds as may be required” must be read to include the performance and payment bonds required by the Miller Act. The promise to execute these bonds became valid and enforceable when Hayes’ bid was accepted and was breached by his subsequent failure to provide a payment bond. We do not understand Western to contend otherwise. Western does argue, however, that the “otherwise” clause of the bid bond was intended to be the exclusive measure of liability under that bond and that the liability under that clause for failure to provide “good and sufficient * * * bonds” is the payment to the Exchange of the difference between the bid price and the" }, { "docid": "14337599", "title": "", "text": "450j was qualified by the reference to “the discretion of the appropriate Secretary.” Even assuming this to be the case, so that the Secretary could intervene in an Indian housing authority project to invoke and enforce the Act’s bond requirements, no such action was ever taken here. Anticipating this rejoinder, plaintiff contends that the Secretary’s discretion in the matter rendered the Miller Act exclusion inoperative unless the Secretary “affirmatively waives” the Act’s requirements “after making certain [unidentified] determinations.” Reply Br. of Appellant at 6. This attempt to transform a reservation of administrative discretion into a compulsory formality with both substantive and procedural components lacks any case law, legislative, or regulatory support. We agree with the analysis of the Midstates decision, and hold that the Miller Act does not apply to construction projects owned and directed by Indian housing authorities acting with the autonomy conferred under the Self-Determination Act. Our holding here is limited to the reach of the Miller Act; we do not hold that federal question jurisdiction can never be asserted over payment bond disputes, even in the context of Indian housing authority projects. Under 28 U.S.C. § 1352, the district courts have (nonexclusive) jurisdiction “of any action on a bond executed under any law of the United States, except matters within the jurisdiction of the Court of International Trade.” This jurisdictional grant applies when a bond has been required by regulations having the force of law. See, e.g., United States ex rel. Empire Plastics Corp. v. Western Casualty & Sur. Co., 429 F.2d 905, 906 (10th Cir.1970) (bid bond required under federal procurement regulations); Adams v. Greeson, 300 F.2d 555, 557 (10th Cir.1962) (livestock dealer’s bond required under agricultural regulations). Accordingly, the Ninth Circuit relied on § 1352 to hold that federal question jurisdiction could be asserted over a bond action arising out of an Indian housing authority project, despite the inapplicability of the Miller Act, because the bond was issued in compliance with the regulation discussed above specifying the forms of payment-assurance required for such projects. See United States ex rel. Newton v. Neumann Caribbean Int’l, Ltd.," }, { "docid": "455132", "title": "", "text": "in a situation not unlike ours, “Security to materialmen and laborers was the end and aim of the transaction. If the promise was not for them, it was without significance or reason.” Strong v. American Fence Constr. Co., supra. See also United States for the Use and Benefit of Victory Electric Corp. v. Maryland Cas. Co., supra. The judgment is reversed and remanded with directions to enter judgment for Empire Plastics. . Although the exchange was a non-appropriated fund activity to which the Armed Forces Procurement Regulations were inapplicable, 32 C.F.R. § 1.102, the Federal Procurement Regulations required such a bond. 41 C.F.R. § 1-10.103-1 (a). . The condition and penal clauses of the bond stated: THE CONDITION OF THIS OBLIGATION is such that if the aforesaid Principal shall be awarded the contract the said Principal will, within the time required, enter into a formal contract and give such good and sufficient bond or bonds as may be required to secure the' performance of the terms and conditions of the contract, then this obligation to be void; otherwise the Principal and Surety will pay unto the Obligee the difference in money between the amount of the bid of the said Principal and the amount for which the Obligee legally contracts with another party to perform the work if the latter amount be in excess of the former, but in no event shall the Surety’s liability exceed the penal sum hereof. . Empire originally sought recovery on both bid and payment bonds, but the claim on the payment bond was voluntarily dismissed when Empire discovered there was no such bond. The Ent Air Force Base Exchange and the estate of Leonard Hayes, sole proprietor of Hayes Construction Co., were also originally joined as defendants ;■ the claims against these parties were dismissed, however, and are not involved on this appeal. . Section 1352 provides: The district courts shall have original jurisdiction, concurrent with State courts, of any action on a bond executed under any law of the United States." }, { "docid": "15208002", "title": "", "text": "the funds. In four earlier unemployment insurance programs — (1) federal employees (5 U.S.C. § 8501 et seq.); (2) ex-servicemen (5 U.S.C. § 8521 et seq.); (3) the Federal-State Extended Unemployment Compensation Act of 1970 (Title II of Pub.L.No. 91-373, 84 Stat. 695, 708); and (4) the Emergency Unemployment Compensation Act of 1971 (Title II of Pub.L.No. 92-224, 85 Stat. 810, 811) — the Secretary provided by regulation for waiver of overpayments in accordance with applicable state law. Thus, these statutes, which contain language similar to that contained in Section 207 of the Act, have been interpreted by the Secretary to permit waiver of overpayments in accordance with state law. While recognizing that administrative regulations consistent with the purposes of legislation have the force of law, Morton v. Ruiz, 415 U.S. 199, 230-37, 94 S.Ct. 1055, 39 L.Ed.2d 270 (1974); see Espinoza v. Farah Mfg. Co., 414 U.S. 86, 94 S.Ct. 334, 38 L.Ed.2d 287 (1973); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969); Thorpe v. Housing Authority of Durham, 393 U.S. 268, 89 S.Ct. 518, 21 L.Ed.2d 474 (1969), the weight to be given to an administrative regulation depends upon “ ‘its consistency with earlier and later pronouncements.’ ” Morton v. Ruiz, supra, 415 U.S. at 237, 94 S.Ct. at 1075, citing Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944); see generally 1 K. Davis, Administrative Law §§ 5.03-5.06 (1958 ed. and Supp.1970). Here, the Secretary promulgated Regulation 619.13 which is inconsistent with previous regulations under similar statutory provisions dealing with unemployment compensation programs. Moreover, Regulation 619.13 is inconsistent with the congressional purpose of the Act as demonstrated by the subsequent June 30, 1975 amendments. Since we find that Regulation 619.13 is not consistent with the legislative purpose of the Act and is in excess of the Secretary’s statutory authority, it does not have the force and effect of law. 5 U.S.C. § 706(2)(A) & (C); see Federal Maritime Commission v. Seatrain Lines, Inc., 411 U.S. 726, 745-46, 93 S.Ct. 1773, 36" }, { "docid": "7798436", "title": "", "text": "to a Capehart bond as one “required by federal law”. Other Capehart cases to the same effect are National State Bank of Newark v. Terminal Constr. Corp., 217 F.Supp. 341, 349 (D.N.J.1963), aff’d on the district court’s opinion, 328 F.2d 315 (3 Cir.); United States for Use and Benefit of Miles Lumber Co. v. Harrison & Grimshaw Constr. Co., 305 F.2d 363, 366 (10 Cir. 1962), cert. denied, 371 U.S. 920, 83 S.Ct. 287, 9 L.Ed.2d 229; Lasley v. United States for Use of Westerman, 285 F.2d 98, 100 (5 Cir. 1960); United States for Use and Benefit of Fine v. Travelers Indem. Co., 215 F.Supp. 455, 459 (W.D.Mo.1963); Northwest Lumber Sales, Inc. v. S. S. Silberblatt, Inc., 211 F.Supp. 749, 750 (E.D.Mo.1962); Autrey v. Williams & Dunlap, 210 F.Supp. 491, 497 (W.D.La.1962); Minneapolis-Honeywell Regulator Co. v. Terminal Constr. Corp., 41 N.J. 500, 197 A.2d 557, 563 (1964). Miller bond cases of like tenor are United States for Use and Benefit of Bryant Elec. Co. v. Aetna Cas. & Sur. Co., 297 F.2d 665, 669 (2 Cir. 1962), and United States for Use of West Pac. Sales Co. v. Harder Industrial Contractors, Inc., 225 F.Supp. 699, 702 (D.Or. 1963). See 1 Moore’s Federal Practice, Par. 0.60 [8.-3], p. 626 (1961). See, also, Hartford Acc. & Indem. Co v. Baldwin, 262 F.2d 202, 203 (8 Cir. 1958) where this court said simply, in connection with a livestock dealer’s bond required by regulations issued under the authority of the Packers and Stockyards Act, 7 U.S.C. § 204, “There was' federal jurisdiction because the bond sued on was executed under the laws of the United States”; Adams v. Greeson, 300 F.2d 555, 557 (10 Cir. 1962), where the court, in connection with such a bond, relied on § 1352; and United States for Use and Benefit of Victory Elec. Corp. v. Maryland Cas. Co., 213 F.Supp. 800, 803, and 215 F.Supp. 700 (E.D.N.Y.1963), where the court mentioned the statute with respect to a bid bond given under the Armed Services Procurement Regulations authorized by the Miller Act. The defense relies upon United States" }, { "docid": "455128", "title": "", "text": "in the contract work. When Hayes failed to pay its bill Empire brought this suit against Western. The pretrial order agreed to by the parties admitted federal jurisdiction under 28 U.S.C. § 1352 and specified that the only issue was the legal question of Empire’s right to recover on the bid bond. The case was submitted for decision on Empire’s motion for summary judgment, which the trial court denied. Treating the matter as a trial to the court upon undisputed facts, the court then granted judgment for Western, apparently concluding that federal jurisdiction was non-existence and that in any event Empire was not entitled to recover on the bond. Since the regulations requiring the bonds had the “force of law,” Paul v. United States, 371 U.S. 245, 255, 83 S.Ct. 426, 9 L.Ed.2d 292 (1963), the bid bond was necessarily executed under federal law as required by 28 U.S.C. § 1352 and we think the District Court had jurisdiction. Adams v. Greeson, 300 F.2d 555 (10th Cir. 1962); United States for the Use and Benefit of Victory Electric Corp. v. Maryland Cas. Co., 213 F.Supp. 800, 803 (E.D.N.Y.1962), on rehearing 215 F.Supp. 700, 701-702. On the merits, Empire takes the position that the bid bond’s promise to “give such good and sufficient bond or bonds as may be required * * * ” necessarily obligated Hayes and Western to secure a statutory payment bond and that this obligation was necessarily intended for the benefit of third-party laborers and materialmen. We agree. Hayes’ $41,447.00 contract for the repair of the Exchange’s buildings was undoubtedly subject to the Miller Act, which required a payment bond on contracts “exceeding $2,000 in amount, for the construction, alteration, or repair of any public building or public work of the United States. * * *” 40 U.S.C. § 270a. And see 41 C.F.R. §§ 1-10.105-1, 1-10.103-1 (a). Although the Exchange is a non-appropriated fund activity, title to the buildings it uses on the military base is in the United States and the contract was thus one for the repair of public buildings of the United States." }, { "docid": "455127", "title": "", "text": "MURRAH, Circuit Judge. The central question on this appeal is whether Empire Plastics may recover on a bid bond executed by Western Casualty & Surety Co. for materials furnished in connection with a construction contract between Hayes Construction Co. and the Ent Air Force Base Exchange. Prior to June 1, 1967, the Exchange requested bids for the renovation of a building located on the base and, pursuant to applicable federal regulations, required that all bids be accompanied by a bid bond. Hayes procured the bid bond from Western and submitted the winning bid. Apparently on the same date it entered into the construction contract. That contract required Hayes to secure a performance and payment bond “to guarantee a faithful performance of all work included within the Agreement and for the payment of all costs on account thereof * * *.” Hayes secured the required performance bond, completed the contract without securing a payment bond, and subsequently became insolvent. Empire, apparently unaware that no payment bond had been given, supplied material to Hayes which was used in the contract work. When Hayes failed to pay its bill Empire brought this suit against Western. The pretrial order agreed to by the parties admitted federal jurisdiction under 28 U.S.C. § 1352 and specified that the only issue was the legal question of Empire’s right to recover on the bid bond. The case was submitted for decision on Empire’s motion for summary judgment, which the trial court denied. Treating the matter as a trial to the court upon undisputed facts, the court then granted judgment for Western, apparently concluding that federal jurisdiction was non-existence and that in any event Empire was not entitled to recover on the bond. Since the regulations requiring the bonds had the “force of law,” Paul v. United States, 371 U.S. 245, 255, 83 S.Ct. 426, 9 L.Ed.2d 292 (1963), the bid bond was necessarily executed under federal law as required by 28 U.S.C. § 1352 and we think the District Court had jurisdiction. Adams v. Greeson, 300 F.2d 555 (10th Cir. 1962); United States for the Use and Benefit" }, { "docid": "7798437", "title": "", "text": "(2 Cir. 1962), and United States for Use of West Pac. Sales Co. v. Harder Industrial Contractors, Inc., 225 F.Supp. 699, 702 (D.Or. 1963). See 1 Moore’s Federal Practice, Par. 0.60 [8.-3], p. 626 (1961). See, also, Hartford Acc. & Indem. Co v. Baldwin, 262 F.2d 202, 203 (8 Cir. 1958) where this court said simply, in connection with a livestock dealer’s bond required by regulations issued under the authority of the Packers and Stockyards Act, 7 U.S.C. § 204, “There was' federal jurisdiction because the bond sued on was executed under the laws of the United States”; Adams v. Greeson, 300 F.2d 555, 557 (10 Cir. 1962), where the court, in connection with such a bond, relied on § 1352; and United States for Use and Benefit of Victory Elec. Corp. v. Maryland Cas. Co., 213 F.Supp. 800, 803, and 215 F.Supp. 700 (E.D.N.Y.1963), where the court mentioned the statute with respect to a bid bond given under the Armed Services Procurement Regulations authorized by the Miller Act. The defense relies upon United States for Use of General Acc. Fire & Life As-sur. Corp. v. Maguire Homes, Inc., 186 F.Supp. 659, 660 (D.Mass.1959). This is a comparatively early Capehart case. It seems to support the defense position. If so, we are not able to follow its reasoning and we do not understand its statement, 186 F.Supp. p. 660, that the Cape-hart Act “contemplate (s) bonds in which the United States is the obligee”. No other case in accord with Maguire has been cited to us. We adhere to our footnote comment in Robertson and to our observations in Triangle and hold that § 1352 provides federal jurisdiction here. This makes it unnecessary for us to consider whether the Miller Act’s jurisdictional provisions contained in 40 U.S.C. § 270b (b) also provide federal court jurisdiction for this Capehart bond action. Our inclinations as to this alternative, however, are revealed as we discuss the next point. 2. Jurisdiction over the persons of the individual defendants. Although service upon D & L and Continental was effected in Missouri, the individuals were served" }, { "docid": "11932831", "title": "", "text": "for plaintiff in each case, and defendants appealed. Jurisdiction of the court to entertain the actions is challenged. The ground of challenge is that there was diversity of citizenship but less than ten thousand dollars involved in each case. The Packers and Stockyards Act, supra, expressly empowers the Secretary of Agriculture to require reasonable bonds from marketing agencies and dealers to secure the performance of their obligations. 7 U.S.C.A. § 204. In the exercise of such power, the Secretary required every market agency and dealer to give such bond. 9 C.F.R. § 201.29. And by further regulation, the Secretary required such bond to contain a provision that any person damaged by failure of the principal to comply with the condition clauses contained therein may maintain suit to recover on the bond even though such person is not a party named in such bond. 9 C.F.R. § 201.33. The bond executed by the defendants in each of these cases was executed pursuant to such requirement. And it is provided by 28 U.S.C. § 1352 that the district courts of the United States shall have original jurisdiction, concurrent with state courts, of any action on a bond executed under any law of the United States. Less than ten thousand dollars was involved in each case, but since the bond upon which recovery was sought was executed pursuant to an authorized regulation promulgated by the Secretary, the court had jurisdiction under 28 U.S. C. § 1352 to entertain the actions. Hartford Accident and Indemnity Co. v. Baldwin, 8 Cir., 262 F.2d 202. The Packers and Stockyards Act does not undertake to fix the respective rights of the parties to a transaction in which the owner of livestock delivers possession thereof to a purchaser who gives in payment therefor a worthless check. The act does not have the effect of altering in part or superseding in whole the respective rights of the immediate parties under state law to a transaction of that kind. Sig Ellingson & Co. v. De Vries, 8 Cir., 199 F.2d 677, certiorari denied, 344 U.S. 934, 73 S.Ct. 505, 97" }, { "docid": "14737982", "title": "", "text": "with an entitlement. c. Glass Claims, Cross-Claims and Jurisdiction. The putative classes make claims against the interpleaded bond and rider and cross-claims against Nationwide, Graff and Nadel. The court has jurisdiction over the claims on the bond because they are “action[s] on a bond executed under any law of the United States...” 28 U.S.C. § 1352. The bond and rider were executed pursuant to the requirements of regulations promulgated by the Civil Aeronautics board, and these regulations constitute “law” within the meaning of § 1352. See U.S. etc. Miss. Road Supply Co. v. H.R. Morgan Inc., 542 F.2d 262, 266 (5th Cir.), cert. denied, 434 U.S. 828, 98 S.Ct. 106, 54 L.Ed.2d 87 (1976) (department of interior regulations); United States ex rel. Empire Plastics Corp. v. Western Cas. & Sur. Co., 429 F.2d 905, 906 (10th Cir. 1970). Moreover, federal question jurisdiction is alleged and has not been challenged. The cross-claims clearly are within Rule 13, since the cross-claims arise out of the same transaction or occurrence that is the subject matter of the class claims on the bond and rider, see Rule 13(g), and therefore they fall within the ancillary jurisdiction of the court. See 3 Moore’s Federal Practice, supra, at K 13.36 (jurisdiction which supports principal claim supports related cross-claim). Alternatively, considering that the cross-claims and claims derive from a common nucleus of operative fact and that, as they attempted to do in state court, the class claimants would ordinarily claim against the surety funds and Nationwide, Graff and Nadel in one action, pendant jurisdiction may be exercised, since economy, efficiency and fairness would thus be advanced. See United Mine Workers v. Gibbs, 383 U.S. 715, 725-26, 86 S.Ct. 1130, 1138-39, 16 L.Ed.2d 218 (1966). 5. Notice. Notice must be financed by the class claimants. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 356-58, 98 S.Ct. 2380, 2392-93, 57 L.Ed.2d 253 (1978); Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177, 94 S.Ct. 2140, 2152, 40 L.Ed.2d 732 (1973). However, class claimants may apply to this court for an order shifting the costs of some class member identification" }, { "docid": "23665492", "title": "", "text": "within the ambit of Section 1352 because considering this injunction bond as “a bond executed under any law of the United States” would run counter to the intent of Congress. In support of its argument, Averitt relies on the 1948 Code reviser’s notes, which indicate that Section 1352 was enacted for the purpose of allowing suits on “any bond authorized by the law of the United States” that would not otherwise have met the amount in controversy jurisdictional requirement. Averitt concludes from this limited indication of purpose that the statute was originally intended to cover only bonds issued under Title 6 of the U.S. Code, which has since been repealed. Averitt does not point, to any authoritative source, however, to support this theory or its contention that we should construe “any bond authorized by the law of the United States” to exclude injunction bonds. This Circuit has not yet had occasion to decide whether an injunction bond is the type of bond contemplated by Section 1352. At least two other circuits, however, have implicitly held that parties aggrieved by a wrongfully issued injunction may sue to recover on an injunction bond under Section 1352. See Buddy Systems, Inc. v. Exer-Genie, Inc., 545 F.2d 1164, 1166 (9th Cir.1976) (holding that there was no jurisdiction under Section 1352, but only because the bond had been dissolved); Atomic Oil Co. v. Bardahl Oil Co., 419 F.2d 1097, 1099 (10th Cir.1969) (implicitly finding federal court jurisdiction over a collateral action to recover on an injunction bond); see also Alabama ex rel. Siegelman v. EPA, 925 F.2d 385, 388-90 (11th Cir.1991) (adopting the reasoning of Atomic Oil Co.). Given the plain meaning of the language employed in Section 1352, we now join our sister circuits in concluding that an injunction bond, issued pursuant to Rule 65(c) to secure a federal court injunction, is in fact a “bond executed under any law of the United States.” Averitt has offered no argument that persuades us that we should read any sort of restriction into the clear language in the statute. We therefore conclude that the district court" }, { "docid": "21479011", "title": "", "text": "the federal district courts^ “shall have original jurisdiction, concurrent with State courts, of any action om a bond executed under any law of the-United States”, was enacted in 1948, a date subsequent to the passage of the* Miller Act in 1935 and prior to the passage of the Capehart Act in 1955, and. that the 1948 Act therefore operated to-divest the federal courts of any exclusive jurisdiction which § 2(b) of the Miller Act might have provided. The argument is not persuasive. The purpose of § 1352' was to give federal courts jurisdiction of bond actions where, absent the necessary diversity and minimum amount in controversy, it otherwise did not exist. I Moore, Federal Practice, Par. 0.60 [8.-3], p. 626 (2d ed. 1961). It was not to provide state court jurisdiction over bond actions otherwise restricted to federal tribunals. Minneapolis-Honeywell Regulator Co. v. Terminal Constr. Corp., supra, p. 563 of 197 A.2d. See Revisor’s note to 28 U.S.C.A. § 1352. We therefore adhere to our holding in Allsop. That case, this one, the result we reached in Robertson, and our companion Missouri-Illinois decision, 337 F.2d 507, establish as the present law of this Circuit with respect to Capehart payment bond actions the following: The proper federal court has jurisdiction under Title 28 U.S.C. § 1352 over an action-on a Capehart bond. Section 2(b) of the Miller Act, 40 U.S.C. § 270b(b), has application to a Capehart bond action and vests jurisdiction over that action exclusively in the federal court. Out-of-state service is effective. The limitation-, period set forth in § 2(b) of the Miller-Act is applicable despite the presence of a specified longer period in the bond itself. But the dual notice requirement of' a Capehart bond, being more stringent than the notice provisions of the Miller Act, is valid and effective. Affirmed. . § 2(b). “Every suit instituted under this section shall be brought in the name of the United States for the use of the person suing, in the United States District Court for any district in which the contract was to be performed and executed and not" }, { "docid": "11415422", "title": "", "text": "BARTELS, District Judge. Having heretofore denied defendant’s motion for summary judgment and judgment on the pleadings the Court granted the defendant leave for reargument. Aside from relative minor claims, the essence of the defendant’s argument is that the Court erred in two respects, in (1) holding that it had jurisdiction under Section 1352, 28 U.S.C.A., to entertain the action, and in (2) holding that the plaintiffs had a right to sue in their own names under the bid bond in question. I The real bone of contention in this case revolves around Section 1352, the defendant claiming that the bid bond executed by it is not “a bond executed under any law of the United States”. As previously mentioned, this bond was executed pursuant to Part 10 of the Armed Services Procurement Regulations, 32 C.F.R. § 10.102-2, requiring a bid bond for a project when the invitation for bid specifies that the contract must be supported by payment and performance bonds, which was the fact in this case. The Court has re-examined the question whether the above regulations, under which the bond was issued, may be deemed the law of the United States within the meaning of Section 1352. It has long since been settled that “ * * * a regulation by a department of government, addressed to and reasonably adapted to the enforcement of an act of Congress, the administration of which is confided to such department, has the force and effect of law if it be not in conflict with express statutory provision.” Maryland Casualty Co. v. United States, 1919, 251 U.S. 342, 349, 40 S.Ct. 155, 64 L.Ed. 297. More recently, in G. L. Christian and Associates v. United States, 1963, 312 F.2d 418, 424, the Court of Claims in referring to a section of the Armed Services Procurement Regulations with respect to the question of the applicability of the standard termination clause to a housing contract under the Capehart Act, stated: “As the Armed Services Procurement Regulations were issued under statutory authority, those regulations, including Section 8.703, had the force and effect of law. See" }, { "docid": "7798434", "title": "", "text": "for the purpose of providing suitable living accommodations for military personnel”. 42 U.S.C. § 1594(a). It further provides that each housing unit, when available for occupancy, shall be placed under the control of the Secretary and shall be “deemed to be housing facilities under the jurisdiction of the military department to which they are assigned”; that, with a stated exception, the stock of the mortgagor shall be transferred to the Secretary when the housing is completed; and that the contract shall contain “such terms and conditions as the Secretary may determine to be necessary to protect the interests of the United States”. All this demonstrates the reality and the integrity of the government’s interest. See United States Fid. & Guar. Co. v. United States ex rel. Kenyon, 204 U.S. 349, 27 S.Ct. 381, 51 L.Ed. 516 (1907). Contrast the situation in Mudd v. Teague, 220 F.2d 162 (8 Cir. 1955). Furthermore, the furnishing of the bond is, under the statute, mandatory and is not permissive. These factors, it seems to us, qualify these payment bonds as ones “executed under any law of the United States”, within the meaning of 28 U.S.C. § 1352, and the present suit as an action on such bonds. We really have decided this issue before. Although the comment in Continental Cas. Co. v. United States for Use and Benefit of Robertson Lumber Co., 305 F.2d 794, 798 (8 Cir. 1962), cert. denied 371 U.S. 922, 83 S.Ct. 290, 9 L.Ed.2d 231, was by way of a footnote, and is characterized by the defense here as dictum, this court clearly recognized in that opinion the efficacy and the applicability of § 1352 when it said, “A Capehart bond is clearly a bond required by a ‘law of the United States,’ hence, federal jurisdiction of a suit on such a bond is established without regard to any relationship between the Miller Act and the Capehart Act.” And in the very recent case of D & L Constr. Co. v. Triangle Elec. Supply Co., 332 F.2d 1009, 1011-1012 (8 Cir. 1964), another panel of this court twice referred" }, { "docid": "14737981", "title": "", "text": "this action yet are restrained from prosecuting any other ac tion to prove their claims. Whether Fidelity should be compelled to locate- and serve those for whom the rider was created is not a genuine question here: no party has suggested that such a duty is concomitant to Fidelity’s position as interpleading plaintiff, and while equity may demand that an effort be made to involve all interested parties, it does not demand that that effort be made twice. (Practically speaking, if Fidelity were to serve class members, class actions might not be possible, since the class members would' then be parties and subsequent notices from class counsel to them might raise ethical problems. Even if no such ethical problems existed, waste in the form of double notice would result.) But that putative classes with colorable claims against the funds should be permitted to prosecute those claims, even though at a cost of substantial delay in the resolution of this action, seems clear, given the objective of equitable distribution of a limited fund among all those with an entitlement. c. Glass Claims, Cross-Claims and Jurisdiction. The putative classes make claims against the interpleaded bond and rider and cross-claims against Nationwide, Graff and Nadel. The court has jurisdiction over the claims on the bond because they are “action[s] on a bond executed under any law of the United States...” 28 U.S.C. § 1352. The bond and rider were executed pursuant to the requirements of regulations promulgated by the Civil Aeronautics board, and these regulations constitute “law” within the meaning of § 1352. See U.S. etc. Miss. Road Supply Co. v. H.R. Morgan Inc., 542 F.2d 262, 266 (5th Cir.), cert. denied, 434 U.S. 828, 98 S.Ct. 106, 54 L.Ed.2d 87 (1976) (department of interior regulations); United States ex rel. Empire Plastics Corp. v. Western Cas. & Sur. Co., 429 F.2d 905, 906 (10th Cir. 1970). Moreover, federal question jurisdiction is alleged and has not been challenged. The cross-claims clearly are within Rule 13, since the cross-claims arise out of the same transaction or occurrence that is the subject matter of the class" }, { "docid": "15463083", "title": "", "text": "plain there is no room for construction.” Osaka Shoshen Kaisha Line v. United States, 300 U.S. 98, 101, 57 S.Ct. 356, 357, 81 L.Ed. 532 (1937), quoted in, Hodgson v. Mauldin, 344 F.Supp. 302, 307 (N.D.Ala.1972), aff’d, 478 F.2d 702 (5th Cir. 1973); Souder v. Brennan, 367 F.Supp. 808, 812 (D.D.C.1973). Although these cases involved the interpretation of a statute rather than an executive order, there is no reason why the canons of construction should not be the same. The regulations promulgated by the Secretary pursuant to his authority to issue such rules as he deems necessary to accomplish the purposes of the Executive Order, however, might be read as taking a broader view of the meaning of the word “contract” as it is used in the Executive Order. 41 C.F.R. § 60-1.3 (1976), as amended, 42 Fed. Reg. 3454, 3458 (1977), provides: “Government Contract” means any agreement or modification thereof between any contracting agency and any person for the furnishing of supplies or services or for the use of real or personal property, including lease arrangements. The term “services,” as used in this section includes, but is not limited to the following services: Utility . “Modification” means any alteration in the terms and conditions of a contract, including supplemental agreements, amendments, and extensions. Since regulations issued pursuant to a valid executive order stand on no better footing than regulations issued pursuant to a statute, it follows that the Secretary’s regulations possess the force and effect of law only if they are “(a) within the granted power, (b) issued pursuant to proper procedure, and (c) reasonable.” 1 K. Davis, Administrative Law Treatise § 5.03, p. 299 (1958) & § 29.01-1, p. 654 (Supp.1976). The Executive Order requires the presence of the equal opportunity clause only in contracts. If the term “agreement” used in Section 60-1.3 was intended to be more inclusive it would be void since it would exceed the scope of the Secretary’s rule-making authority. As the Supreme Court recently stated: The rulemaking power granted to an administrative agency charged with the administration of a federal statute is not" } ]

[ { "docid": "12146003", "title": "", "text": "wholly of” is defined in general headnote 9(f)(iii) as meaning that the essential character of the article is imparted by the named material. From an examination of the exhibit representative of the importation as well as the testimony of plaintiff’s witnesses, I conclude that the essential character of this material is the distinctive visual and tactile quality of the polyurethane “skin.” These are the qualities which give this article its own special nature. Whatever the utility or importance of the nylon backing, the nylon portion does not supply the essential character. Discernment of the essential character of articles is not likely to develop into an exact science but, insofar as some consistency and predictability is possible, it is likely to be found in concentrating on whether the material in question supplies the distinctive feature of the article and not in examining all the characteristics of the article and, if some other material contributes important characteristics, declining to give one material the primacy which its role deserves. General headnote 9 (f)(iii) acknowledges the possibility that significant quantities of some other materials may be present and implicitly recognizes that those other materials will impart something to the character of the article. Therefore, the existence of other materials which impart something 'to the article ought not to preclude an attempt to isolate the most outstanding and distinctive characteristic of the article and to detect the component material responsible for that-“essential characteristic.” The correct approach is exemplified in United China & Glass Co. v. United States, 61 Cust. Ct. 386, C.D. 3637, 293 F. Supp. 734 (1968). In that case an article composed of artificial flowers inside a glass ball was found to be almost wholly of glass. In terms of the analysis I am making here, the essential character of the article was manifest in the enclosing effect of the glass ball despite the obvious importance of the artificial flowers within. Similarly, in Larry B. Watson Co., a/c Decoration Products Co. v. United States, 64 Cust. Ct. 343, C.D. 4001 (1970) the physical adaptability to use of a polyvinyl chloride film was held" } ]

[ { "docid": "18904509", "title": "", "text": "lace. However, it does not follow that because the lace is visually distinctive, it provides the essential characteristic. Cf. Larry B. Watson Co., A/C Decoration Products Co. v. United States, 64 Cust. Ct. 343, C.D. 4001 (1970). Defendant maintains that the lace brassieres are a more attractive, and thus more marketable item; therefore, this is the essential characteristic since the lace causes the consumer to purchase these styles. Nonetheless, the Court is mindful of Mr. Spivak’s testimony that a prettier garment would likely sell more \"as long as it does the function it’s supposed to do.” Tr. at 49. Clearly, the function of the garments, for support and shape, is not provided by the lace. Thus, when other components of the article provide equally essential aspects, the court should decline to characterize this one component as imparting the essential character to the garments. Marshall Co., Inc., et. al. v. United States, 67 Cust. Ct. 316, 324, C.D. 4291, 334 F. Supp. 643, 648-649 (1971); accord Oak Laminates v. United States, 8 CIT 175, 182, 628 F. Supp. 1577, 1583 (1984). Therefore, the lace is not the essential characteristic of Exhibits 1-3. These styles cannot be classified as lace articles within the meaning of that term under item 376.24. The second issue is whether Exhibits 5-8 are ornamented as a result of the lace edging. Headnote 3 to Schedule 3, TSUS, sets forth the relevant criteria for ornamentation: 3. (a) the term \"ornamented”, * * * means fabrics and other articles of textile materials which are ornamented with— (iii) lace, netting, braid, fringe, edging, tucking, or trimming, or textile fabric; [emphasis added] ❖ ❖ ❖ ^ ^ (b) ornamentation of the types or methods covered * * * consists of ornamenting work done to a pre-existing textile fabric, whether the ornamentation was applied to such fabric— (i) when it was in the piece, (ii) after it had been made or cut to a size for particular furnishings, wearing apparel, or other article, or (iii) after it had actually been incorporated into another article, and if such textile fabric remains visible at" }, { "docid": "257790", "title": "", "text": "* sk * sR * if A. Essential characteristic, it’s a waterproofing membrane. It takes all three components to obtain that type of membrane. * * * * sjs si! Q. Are you able to characterize the Par-alon NT 4 and Paralon 77 as belonging to any particular product class or kind? A. Yes. Q. Please do. A. It’s modified bitumen one-ply roofing membrane. Q. Is the product classification which you just stated similar or different to that which you gave before for the Brai SP-4 in Exhibit G? A. It’s the same. Both systems are modified bitumen atactic polypropylene. [Emphasis added.] In addition to the fact that the essential character of the article is not imparted by the polypropylene alone, the imported articles are not considered to be plastic products even by the importer itself. This is evidenced by the fact that Nahrgang considers the imported articles as “modified asphalt membrane” and “thermoplastic resins modified asphalt” and not as plastics. Moreover, bitumen, which is clearly not a plastic material in and of itself, has waterproofing abilities. The trial court also made the factual determination that: “The nonwoven polyester fabric core, although not waterproof in itself, contributed tensile strength essential to an effective and ‘workable’ waterproofing membrane.” Thus, the effective waterproofing capability of the Paralon products was accomplished by the presence of all three essential components of the Paralon products. Accordingly, the. Paralon products did not obtain their essential character from the mastic or, for that matter, from the polypropylene plastics. Ill Last, Nahrgang argues that the imported articles should have been classified under item 771.42 due to the principle of similitude in conjunction with an examination of the applicable legislative history. Similitude is the concept that where an article is not specially provided for elsewhere in the statute, it is properly classifiable under that item which it most closely resembles as specified in the statute. J.E. Bernard & Co. v. United States, 53 C.C. P.A. 116 (1966). Since the similitude issue was not raised below, we need not and do not consider it. International Seaway Trading Cory. v. United" }, { "docid": "681091", "title": "", "text": "character of the importation although an important visual characteristic was imparted by a metallic or lacquered surface treatment. In Marshall Co., Inc., Hoyt, Shepston & Sciaroni v. United States, 67 Cust.Ct. 316, C.D. 4291, 334 F.Supp. 643 (1971) which involved a rayon fabric coated with rubber, I read the opinion as concluding that the article’s essential character consisted of attributes of dimensional stability and a burst strength of predetermined value — both imparted by the fabric component. Classification under item 771.42 as other sheets almost wholly of rubber was therefore ruled out. I note in passing, although it is not crucial to my analysis, that the polyurethane skin of this importation, in addition to supplying the essential visual and tactile characteristics, also contributes attributes of strength and flexibility in conjunction with the nylon backing. It is the polyurethane which is the main subject of the flexing and cracking tests to which the importation is subjected to determine its suitability for use in shoe manufacture. In this respect it is more like the fabric than the rubber coating in the Marshall case and is comparable to the polyvinyl chloride film in the Watson case. In its contribution to the distinctive character of the importation, it is most like the glass ball in the United China case. In short, not only does the polyurethane skin supply the essential character of the importation, which would suffice to make the importation almost wholly of plastic, it is the dominant material in all respects. As a final matter, I am convinced the importation is made in imitation of patent leather within the meaning of the TSUS. I reach this conclusion both from the testimony of the witnesses who were well qualified to speak authoritatively on the subject and from examination of the smooth and glossy state of the importation’s surface. Defendant argues for a degree of hardness and absolute smoothness which I do not find to be a requirement for patent leather. For the above reasons I conclude that the importation is properly classifiable as flexible sheet almost wholly of plastic, made in imitation of" }, { "docid": "18904505", "title": "", "text": "exhibit also contains lace along the outer edge of each cup, connecting the back panel to the cups. Discussion The headnote to Schedule 3, under which items 376.24, and 376.28 appear, defines a lace article as: 2. (h) * * * an article which (exclusive of any added ornamentation) is wholly or almost wholly of lace, including burnt-out lace, * * * whether the lace or net pre-existed or was formed in the process of producing the article. The relevant General Headnote to the TSUS is: 9. Definitions. (f)(ii) \"wholly of’ means that the article is, except for negligible or insignificant quantities of some other material or materials, composed completely of the named material; (iii) \"almost wholly of’ means that the essential character of the article is imparted by the named material, notwithstanding the fact that significant quantities of some other material or materials may be present; The tariff term \"almost wholly of’ was interpreted in United States China & Glass Co. v. United States, 61 Cust. Ct. 386, C.D. 3637, 293 F. Supp. 734 (1968). In applying the definition in General Headnote 9(f), the court stated that \"[t]he character of an article is that attribute which strongly marks or serves to distinguish what it is. Its essential character is that which is indispensable to the structure, core or condition of the article, i.e., what it is.” 61 Cust. Ct. at 389, 293 F. Supp. at 737. In that instance, a glass water ball, with an inset of plastic decorative flowers set on a base, was not almost wholly of plastic. The court held that it was the glass ball which was indispensable and distinguishing since the plastic flowers could easily be substituted; but without the glass ball, the flowers and base were without utility. Id. In an attempt to sharpen this analysis, it has been stated that discernment of the essential characteristic may: be found in concentrating on whether the material in question supplies the distinctive feature of the article and not in examining all the characteristics of the article and, if some other material contributes important characteristics, declining" }, { "docid": "257786", "title": "", "text": "for determining whether an article is almost wholly of a named material under General Headnote 9(f)(iii). * * * In any event, plaintiff failed to prove the component material of chief value of the Paralon 77. It is well settled that the proper method for determining the component material of chief value is to ascertain the costs of the separate component materials at the time they have reached the state when nothing further need be done except combine them into the completed article. [Footnotes and citations omitted.] Accordingly, the lower court dismissed the complaint. OPINION I Nahrgang primarily argues that the imported article is almost wholly of plastics. It contends that the trial court construed the term “plastics” too restrictively in that only those articles comprised solely of plastics are considered articles of plastics. Nahrgang asserts that, in construing the phrase “almost wholly of rubber or plastics” in item 771.42, an analysis must be made not only of the completed article (mastic) but also the separate components of the mastic (polypropylene, bitumen and fabric core). As characterized by Nahrg-ang, this contention relies on the principles of component material of chief value analysis. The trial court clearly and correctly held that the chief value analysis does not apply to this question. Rather, in deciding whether a material is “almost wholly of plastics,” the court must determine whether the essential character of the product is imparted by plastics. See n. 6, infra. The relative .value of the component parts of the product has no bearing on this analysis. Nahrgang contends that headnote 1(c) of Part 12, Schedule 7 defines the term “rubber or plastics” to mean “rubber, plastics, or combinations of rubber and plastics.” See n. 4. It then argues, citing legislative history, that the phrase “combinations of rubber and plastics” should be liberally interpreted to mean a combination of plastics with any other materials, not just a combination composed of rubber and plastics. Since the mastic in the instant ease is a combination of plastics (polypropylene) with other materials, Nahrgang asserts that the mastic is within that definition. We disagree. Nothing" }, { "docid": "257782", "title": "", "text": "other component materials in the merchandise which are not relevant to this case. The imported goods are produced in the following manner. The mastic is first produced by mixing hot bitumen in a liquid state with the polypropylenes, and the resultant mixture is then formed into a membrane. After production of the mastic in the form of a membrane, the nonwoven polyester core is sunk into the mastic. The additional minor components in the products facilitate adhesion in their application and act as an antiadhesive to make the material easier to unroll. The sole use of the Paralon products is for the waterproofing of roofs and other waterproofing applications. While bitumen alone has good waterproofing characteristics, polypropylene (a waterproof plastic material) is added to the bitumen as a modifying agent for the purpose of imparting flexibility to the mastic. The nonwoven polyester fabric core, not waterproof in itself, contributes tensile strength essential to an effective and “workable” waterproofing membrane. Additionally, the polyester fabric is used to obtain a waterproofing sheet in a continuous form in the fabrication process. The Customs Service classified the Paral-on articles under item 355.25 of the TSUS, with duty assessed at the rate of 12 cents per pound plus 15 per centum ad valorem. Lower Court Proceeding At trial, as well as here, Nahrgang asserted that the imported articles should have been classified under item 771.42 of the TSUS because the articles are “wholly or almost wholly of * * * plastics.” If Nahrgang’s proposed classification is correct, then the Government’s classification under item 355.25 is precluded by virtue of headnote l(vii), Schedule 3, Part 4, Subpart C. Nahrgang contended (1) that the essential character of the imported article is its waterproofing capability which is imparted by the mastic portion and (2) that the mastic portion is a “synthetic plastics material” as defined in headnote of Schedule 7, Part 12, which in turn is further defined in headnote 2 of Schedule 4, Part 4, Subpart A. The lower court found: impart flexibility to the mastic, neither the bitumen in itself nor the mastic material as a" }, { "docid": "18904507", "title": "", "text": "to give one material the primacy which its role deserves * * *. Therefore, the existence of other materials which impart something to the article ought not to preclude an attempt to isolate the most outstanding and distinctive characteristic of the article and to detect the component material responsible for that \"essential characteristic.” Canadian Vinyl Industries, Inc. v. United States, 76 Cust. Ct. 1, 2-3, C.D. 4626 (1976), aff’d, 64 CCPA 97, C.A.D. 1189, 555 F.2d 806 (1977). The issue in this case, therefore, is whether the lace provides the essential characteristic to the brassieres and makes them what they are. Of the styles considered by Customs to be of lace (Exhibits 1, 2 and 3), the lace inserts comprise the top cup of the brassieres. The major components of the articles are the Techsheen and Simplex (the stretch material). Notwithstanding the significant quantities of these materials, can it be said that the lace is the outstanding and distinctive attribute of these garments: are these lace brassieres? According to Mr. Spivak, in the industry, lace brassieres consist of full cups of lace. Tr. at 25. These articles do not meet that standard. Furthermore, Mr. Spivak stated that the purpose of a brassiere is to give support, and to contain and shape a woman’s breasts. Tr. at 22. The lace is not the component responsible for these functions. As to Exhibits 1-3, the witness identified the bottom cup, bands, frames and back panels as providing the major sources of support. Tr. at 23-24. Defendant argues that the lace distinguishes these particular styles from other types of brassieres, citing A.N. Deringer, Inc. v. United States, 66 Cust. Ct. 378, C.D. 4218 (1971). Children’s waterproof snowsuits consisting of an outershell of neoprene waterproof coated nylon and a quilted lining, were distinguishable by their water resistant quality. While the quilted lining supplied warmth to the wearer, an important characteristic of a snowsuit, the added feature which furnished the essential characteristic to the article was its water resistance. No doubt the articles here in issue are more appealing to the eye than are brassieres without" }, { "docid": "257789", "title": "", "text": "with sufficient specificity in the Court of International Trade to entitle it to raise the issue here. In any event, we disagree with Nahrgang on the merits. As found by the trial court, the essential character of the imported articles is its waterproofing capability. This waterproofing capability is the result of the combination of the two essential components of the products, i.e., mastic (bitumen and polypropylene) and the Trevira fabric. The mastic, which is a mixture of bitumen and polypropylene, is 70% by weight of bitumen. Its essential character is not imparted by the polypropylene alone. The essential character of the article was addressed by several witnesses. For example, Mr. Noble, the Government’s witness, testified: Q. Do you consider the Brai product, Exhibit G, to be an effective waterproofing material? A. Yes, I do. Q. What component, in your opinion, gives Brai the ability to be an effective waterproofing material? A. Asphalt, atactic polypropylene and polyester mat. Hs * * H* & :|; Q. What in your opinion is the essential characteristic of Exhibit G? * sk * sR * if A. Essential characteristic, it’s a waterproofing membrane. It takes all three components to obtain that type of membrane. * * * * sjs si! Q. Are you able to characterize the Par-alon NT 4 and Paralon 77 as belonging to any particular product class or kind? A. Yes. Q. Please do. A. It’s modified bitumen one-ply roofing membrane. Q. Is the product classification which you just stated similar or different to that which you gave before for the Brai SP-4 in Exhibit G? A. It’s the same. Both systems are modified bitumen atactic polypropylene. [Emphasis added.] In addition to the fact that the essential character of the article is not imparted by the polypropylene alone, the imported articles are not considered to be plastic products even by the importer itself. This is evidenced by the fact that Nahrgang considers the imported articles as “modified asphalt membrane” and “thermoplastic resins modified asphalt” and not as plastics. Moreover, bitumen, which is clearly not a plastic material in and of itself, has" }, { "docid": "257787", "title": "", "text": "As characterized by Nahrg-ang, this contention relies on the principles of component material of chief value analysis. The trial court clearly and correctly held that the chief value analysis does not apply to this question. Rather, in deciding whether a material is “almost wholly of plastics,” the court must determine whether the essential character of the product is imparted by plastics. See n. 6, infra. The relative .value of the component parts of the product has no bearing on this analysis. Nahrgang contends that headnote 1(c) of Part 12, Schedule 7 defines the term “rubber or plastics” to mean “rubber, plastics, or combinations of rubber and plastics.” See n. 4. It then argues, citing legislative history, that the phrase “combinations of rubber and plastics” should be liberally interpreted to mean a combination of plastics with any other materials, not just a combination composed of rubber and plastics. Since the mastic in the instant ease is a combination of plastics (polypropylene) with other materials, Nahrgang asserts that the mastic is within that definition. We disagree. Nothing in headnote 1(c) indicates or even suggests that Congress intended to include within the term “plastics” anything containing materials that were not plastics. The plain meaning of the headnote is that a combination of rubber with a plastic or of two or more plastic components will still constitute a plastic. The language does not provide that combining a plastic with a nonplastic substance other than rubber will produce a plastic. Headnote 1(c) deals only with the narrow form of combination and cannot properly be read as broadly treating as plastic any combination of plastics and nonplastics. II In addition to its argument that the mastic is a plastics material such that the imported article is almost wholly of plastics, Nahrgang contends that polypropylene alone imparts the essential character of the imported article, i.e., the waterproofing ca pability, in that it is the-only component that is completely indispensible to the finished product. As such, the imported article is “almost wholly of” plastics as defined by General Headnote 9(f)(iii). It is uncertain whether Nahrgang raised that issue" }, { "docid": "257788", "title": "", "text": "in headnote 1(c) indicates or even suggests that Congress intended to include within the term “plastics” anything containing materials that were not plastics. The plain meaning of the headnote is that a combination of rubber with a plastic or of two or more plastic components will still constitute a plastic. The language does not provide that combining a plastic with a nonplastic substance other than rubber will produce a plastic. Headnote 1(c) deals only with the narrow form of combination and cannot properly be read as broadly treating as plastic any combination of plastics and nonplastics. II In addition to its argument that the mastic is a plastics material such that the imported article is almost wholly of plastics, Nahrgang contends that polypropylene alone imparts the essential character of the imported article, i.e., the waterproofing ca pability, in that it is the-only component that is completely indispensible to the finished product. As such, the imported article is “almost wholly of” plastics as defined by General Headnote 9(f)(iii). It is uncertain whether Nahrgang raised that issue with sufficient specificity in the Court of International Trade to entitle it to raise the issue here. In any event, we disagree with Nahrgang on the merits. As found by the trial court, the essential character of the imported articles is its waterproofing capability. This waterproofing capability is the result of the combination of the two essential components of the products, i.e., mastic (bitumen and polypropylene) and the Trevira fabric. The mastic, which is a mixture of bitumen and polypropylene, is 70% by weight of bitumen. Its essential character is not imparted by the polypropylene alone. The essential character of the article was addressed by several witnesses. For example, Mr. Noble, the Government’s witness, testified: Q. Do you consider the Brai product, Exhibit G, to be an effective waterproofing material? A. Yes, I do. Q. What component, in your opinion, gives Brai the ability to be an effective waterproofing material? A. Asphalt, atactic polypropylene and polyester mat. Hs * * H* & :|; Q. What in your opinion is the essential characteristic of Exhibit G?" }, { "docid": "18904506", "title": "", "text": "(1968). In applying the definition in General Headnote 9(f), the court stated that \"[t]he character of an article is that attribute which strongly marks or serves to distinguish what it is. Its essential character is that which is indispensable to the structure, core or condition of the article, i.e., what it is.” 61 Cust. Ct. at 389, 293 F. Supp. at 737. In that instance, a glass water ball, with an inset of plastic decorative flowers set on a base, was not almost wholly of plastic. The court held that it was the glass ball which was indispensable and distinguishing since the plastic flowers could easily be substituted; but without the glass ball, the flowers and base were without utility. Id. In an attempt to sharpen this analysis, it has been stated that discernment of the essential characteristic may: be found in concentrating on whether the material in question supplies the distinctive feature of the article and not in examining all the characteristics of the article and, if some other material contributes important characteristics, declining to give one material the primacy which its role deserves * * *. Therefore, the existence of other materials which impart something to the article ought not to preclude an attempt to isolate the most outstanding and distinctive characteristic of the article and to detect the component material responsible for that \"essential characteristic.” Canadian Vinyl Industries, Inc. v. United States, 76 Cust. Ct. 1, 2-3, C.D. 4626 (1976), aff’d, 64 CCPA 97, C.A.D. 1189, 555 F.2d 806 (1977). The issue in this case, therefore, is whether the lace provides the essential characteristic to the brassieres and makes them what they are. Of the styles considered by Customs to be of lace (Exhibits 1, 2 and 3), the lace inserts comprise the top cup of the brassieres. The major components of the articles are the Techsheen and Simplex (the stretch material). Notwithstanding the significant quantities of these materials, can it be said that the lace is the outstanding and distinctive attribute of these garments: are these lace brassieres? According to Mr. Spivak, in the industry, lace" }, { "docid": "474453", "title": "", "text": "the moisture. A grinding process takes place and the resulting thick sheet is cut into four separate sheets. These thinner sheets are then reimpregnated with the latex rubber by being immersed in the bath a second time, ground, and heat shot to remove the moisture. There was testimony, accepted by the trial judge, that the cost of the fiber, including expenses for machinery and overhead, was 116.47 German pfennig per square meter of the product, while the total cost of the rubber component was 158.84 pfennig per square meter. On this appeal, the Government does not challenge this finding that the rubber component is the material of chief value of the imported merchandise. The Customs Service classified the merchandise under TSUS item 355.25, as non-woven fabrics, whether or not coated or filled, of man-made fibers, at a duty rate of 12 cents per pound plus 15 percent ad valorem. Plaintiff Elbe Products Corp. (Elbe) primarily claimed that the correct classification was TSUS item 359.60, as “other” textile fabrics, not specially provided for, at a duty rate of 8.5 percent ad valorem. The trial court, as we have said, opted for the item 359.60 classification. II. Although for this appeal the Government accepts the fact that rubber is the component of chief value it argues that the rubber should be disregarded under the superior heading to item 355.25, TSUS, in part 4C to schedule 3, TSUS: Webs, wadding, batting and nonwoven fabrics, including felts and bonded fabrics, and articles not specially provided for of any one or combination of these products, all of the foregoing, of textile materials, whether or not coated or filled. (Emphasis added.) The Government adds that the content of the emphasized phrase, supra, is controlled by headnote 4(b) to Schedule 3 — Textile Fibers and Textile Products — which declares: In determining the component fibers of chief value in coated or filled, or laminated, fabrics and articles wholly or in part thereof, the coating or filling, or the non-textile laminating substances, shall be disregarded in the absence of context to the contrary. We are unable to accept" }, { "docid": "257781", "title": "", "text": "PER CURIAM. This is an appeal from a judgment of the United States Court of International Trade (No. 81-4-00410) entered August 8, 1983. Appellant’s motion for rehearing was denied on October 26, 1983. The trial court sustained United States Customs Service’s classification of the articles under item 355.25 of the Tariff Schedules of the United States (“TSUS”). We affirm. Background Nahrgang imported certain rolls of waterproofing material from Italy which were described in the invoices submitted to the Customs Service as “Paralon NT4” and “Paralon 77.” The imported goods, which are used for roofing and other waterproofing applications, consist of a mastic composed of modified bitumen (a mixture of 70% by weight of bitumen and 30% by weight of various polypropylenes) and a nonwoven polyester fabric core. The nonwoven polyester fabric core (sold under the trade name “Trevira”) used in the Paralon NT4 weighs 150 grams per square meter while the fabric used in the Paralon 77 weighs 130 grams per square meter. Other than bitumen, polypropylenes and polyester fabric, there are small quantities of other component materials in the merchandise which are not relevant to this case. The imported goods are produced in the following manner. The mastic is first produced by mixing hot bitumen in a liquid state with the polypropylenes, and the resultant mixture is then formed into a membrane. After production of the mastic in the form of a membrane, the nonwoven polyester core is sunk into the mastic. The additional minor components in the products facilitate adhesion in their application and act as an antiadhesive to make the material easier to unroll. The sole use of the Paralon products is for the waterproofing of roofs and other waterproofing applications. While bitumen alone has good waterproofing characteristics, polypropylene (a waterproof plastic material) is added to the bitumen as a modifying agent for the purpose of imparting flexibility to the mastic. The nonwoven polyester fabric core, not waterproof in itself, contributes tensile strength essential to an effective and “workable” waterproofing membrane. Additionally, the polyester fabric is used to obtain a waterproofing sheet in a continuous form in" }, { "docid": "681088", "title": "", "text": "WATSON, Judge: This case involves an importation composed of a glossy polyurethane “skin” on one'side and a nylon fabric on the reverse. The merchandise was classified as other fabrics of textile materials of man-made fibers, coated or laminated with plastic. Plaintiff’s principal claim is for classification as flexible sheets almost wholly of plastic, made in imitation of patent leather. Plaintiff disproved the correctness of the classification by showing that the importation was not wholly or in chief value of the nylon textile material which, under general headnote 9(f)(i), would be a necessary prelude to classifying this importation as “of” textile material. In fact, plaintiff proved that at the time the components of this material were ready to be joined together (which is the appropriate time to determine their relative value) the cost of the nylon portion was approximately -51 cents per yard and the cost of the polyurethane portion was approximately $1.13 per yard. This leads to consideration of whether the importation is a patent leather imitation almost wholly of plastic. The phrase “almost wholly of” is defined in general headnote 9(f)(iii) as meaning that the essential character of the article is imparted by the named material. From an examination of the exhibit representative of the importation as well as the testimony of plaintiff’s witnesses, I conclude that the essential character of this material is the distinctive visual and tactile quality of the polyurethane “skin.” These are the qualities which give this article its own special nature: Whatever the utility or importance of the nylon backing, the nylon portion does not supply the essential character. Discernment of the essential character of articles is not likely to develop into an exact science but, insofar as some consistency and predictability is possible, it is likely to be found in concentrating on whether the material in question supplies the distinctive feature of the article and not in examining all the characteristics of the article and, if some other material contributes important characteristics, declining to give one material the primacy which its role deserves. General headnote 9(f)(iii) acknowledges the possibility that significant quantities of" }, { "docid": "257783", "title": "", "text": "the fabrication process. The Customs Service classified the Paral-on articles under item 355.25 of the TSUS, with duty assessed at the rate of 12 cents per pound plus 15 per centum ad valorem. Lower Court Proceeding At trial, as well as here, Nahrgang asserted that the imported articles should have been classified under item 771.42 of the TSUS because the articles are “wholly or almost wholly of * * * plastics.” If Nahrgang’s proposed classification is correct, then the Government’s classification under item 355.25 is precluded by virtue of headnote l(vii), Schedule 3, Part 4, Subpart C. Nahrgang contended (1) that the essential character of the imported article is its waterproofing capability which is imparted by the mastic portion and (2) that the mastic portion is a “synthetic plastics material” as defined in headnote of Schedule 7, Part 12, which in turn is further defined in headnote 2 of Schedule 4, Part 4, Subpart A. The lower court found: impart flexibility to the mastic, neither the bitumen in itself nor the mastic material as a whole was established to be a synthetic plastics material. To fall within the definition of “synthetic plastics materials” in headnote 2, part 4A, Schedule 4, a material must be “formed by the condensation, polymerization or copolym-erization of organic chemicals.” But there is not a scintilla of evidence in the record to show that either the bitumen (which is 70 percent by weight of the mastic) itself or the mastic as a whole was formed by any of the specified processes. Moreover, while headnote 2, Schedule 4, Part 4A provides that the term “synthetic plastics materials” includes products “derived from” polypropylene, the mastic (which is 70 percent by weight bitumen) obviously was not derived from polypropylene. While I agree with plaintiff that the essential character of the merchandise is its waterproofing capability, plaintiff has failed to prove its claim that the mastic portion of the merchandise is a synthetic plastics material as defined in headnote 2 of Schedule 4, Part 4, Subpart A. Plaintiff’s argument, essentially, is, that the mastic portion is a “synthetic plastics material”" }, { "docid": "257785", "title": "", "text": "because bitumen constitutes an organic material and polypropylene is specifically mentioned in the headnote definition. Although the evidence shows that polypropylene was mixed with the bitumen as a modifier to Since the record does not establish that the mastic portion of the merchandise is a plastics material, plaintiff has failed to demonstrate that the merchandise is almost wholly of plastics within the purview of the superior heading to item 771.-42, TSUS. I further conclude that since the mastic is not plastics, as defined in the TSUS, the merchandise obviously is not “wholly” of plastics by virtue of headnote 5 of the Schedule 3. Plaintiffs contention that the merchandise should be regarded as almost wholly of plastics, because it is allegedly in chief value of plastics, is untenable. Inasmuch as the essential character of the merchandise (viz., its waterproofing capability) is not imparted by a plastics material, the merchandise cannot be regarded as “almost wholly of” plastics, irrespective of the component material of chief value. Simply put, component material of chief value is not the criterion for determining whether an article is almost wholly of a named material under General Headnote 9(f)(iii). * * * In any event, plaintiff failed to prove the component material of chief value of the Paralon 77. It is well settled that the proper method for determining the component material of chief value is to ascertain the costs of the separate component materials at the time they have reached the state when nothing further need be done except combine them into the completed article. [Footnotes and citations omitted.] Accordingly, the lower court dismissed the complaint. OPINION I Nahrgang primarily argues that the imported article is almost wholly of plastics. It contends that the trial court construed the term “plastics” too restrictively in that only those articles comprised solely of plastics are considered articles of plastics. Nahrgang asserts that, in construing the phrase “almost wholly of rubber or plastics” in item 771.42, an analysis must be made not only of the completed article (mastic) but also the separate components of the mastic (polypropylene, bitumen and fabric core)." }, { "docid": "12146004", "title": "", "text": "quantities of some other materials may be present and implicitly recognizes that those other materials will impart something to the character of the article. Therefore, the existence of other materials which impart something 'to the article ought not to preclude an attempt to isolate the most outstanding and distinctive characteristic of the article and to detect the component material responsible for that-“essential characteristic.” The correct approach is exemplified in United China & Glass Co. v. United States, 61 Cust. Ct. 386, C.D. 3637, 293 F. Supp. 734 (1968). In that case an article composed of artificial flowers inside a glass ball was found to be almost wholly of glass. In terms of the analysis I am making here, the essential character of the article was manifest in the enclosing effect of the glass ball despite the obvious importance of the artificial flowers within. Similarly, in Larry B. Watson Co., a/c Decoration Products Co. v. United States, 64 Cust. Ct. 343, C.D. 4001 (1970) the physical adaptability to use of a polyvinyl chloride film was held to be the essential character of the importation although an important visual characteristic was imparted by a metallic or lacquered surface treatment. In Marshall Co., Inc., Hoyt, Shepston & Sciaroni v. United States, 67 Cust. Ct. 316, C.D. 4291, 334 F. Supp. 643 (1971) which involved a rayon fabric coated with rubber, I read the opinion as concluding that the article’s essential character consisted of attributes of dimensional stability and a burst strength of predetermined value — both imparted by the fabric component. Classification under item 771.42 as other sheets almost wholly of rubber was therefore ruled out. I note in passing, although it is not crucial to my analysis, that the polyurethane skin of this importation, in addition to supplying the essential visual and tactile characteristics, also contributes attributes of strength and flexibility in conjunction with the nylon backing. It is the polyurethane which is the main subject of the flexing and cracking tests to which the importation is subjected to determine its suitability for use in shoe manufacture. In this respect it is" }, { "docid": "681090", "title": "", "text": "some other materials may be present and implicitly recognizes that those other materials will impart something to the character of the article. Therefore, the existence of other materials which impart something to the article ought not to preclude an attempt to isolate the most outstanding and distinctive characteristic of the article and to detect the component material responsible for that “essential characteristic.” The correct approach is exemplified in United China & Glass Co. v. United States, 61 Cust.Ct. 386, C.D. 3637, 293 F.Supp. 734 (1968). In that case an article composed of artificial flowers inside a glass ball was found to be almost wholly of glass. In terms of the analysis I am making here, the essential character of the article was manifest in the enclosing effect of the glass ball despite the obvious importance of the artificial flowers within. Similarly, in Larry B. Watson Co., a/c Decoration Products Co. v. United States, 64 Cust.Ct. 343, C.D. 4001 (1970) the physical adaptability to use of a polyvinyl chloride film was held to be the essential character of the importation although an important visual characteristic was imparted by a metallic or lacquered surface treatment. In Marshall Co., Inc., Hoyt, Shepston & Sciaroni v. United States, 67 Cust.Ct. 316, C.D. 4291, 334 F.Supp. 643 (1971) which involved a rayon fabric coated with rubber, I read the opinion as concluding that the article’s essential character consisted of attributes of dimensional stability and a burst strength of predetermined value — both imparted by the fabric component. Classification under item 771.42 as other sheets almost wholly of rubber was therefore ruled out. I note in passing, although it is not crucial to my analysis, that the polyurethane skin of this importation, in addition to supplying the essential visual and tactile characteristics, also contributes attributes of strength and flexibility in conjunction with the nylon backing. It is the polyurethane which is the main subject of the flexing and cracking tests to which the importation is subjected to determine its suitability for use in shoe manufacture. In this respect it is more like the fabric than the" }, { "docid": "681089", "title": "", "text": "of” is defined in general headnote 9(f)(iii) as meaning that the essential character of the article is imparted by the named material. From an examination of the exhibit representative of the importation as well as the testimony of plaintiff’s witnesses, I conclude that the essential character of this material is the distinctive visual and tactile quality of the polyurethane “skin.” These are the qualities which give this article its own special nature: Whatever the utility or importance of the nylon backing, the nylon portion does not supply the essential character. Discernment of the essential character of articles is not likely to develop into an exact science but, insofar as some consistency and predictability is possible, it is likely to be found in concentrating on whether the material in question supplies the distinctive feature of the article and not in examining all the characteristics of the article and, if some other material contributes important characteristics, declining to give one material the primacy which its role deserves. General headnote 9(f)(iii) acknowledges the possibility that significant quantities of some other materials may be present and implicitly recognizes that those other materials will impart something to the character of the article. Therefore, the existence of other materials which impart something to the article ought not to preclude an attempt to isolate the most outstanding and distinctive characteristic of the article and to detect the component material responsible for that “essential characteristic.” The correct approach is exemplified in United China & Glass Co. v. United States, 61 Cust.Ct. 386, C.D. 3637, 293 F.Supp. 734 (1968). In that case an article composed of artificial flowers inside a glass ball was found to be almost wholly of glass. In terms of the analysis I am making here, the essential character of the article was manifest in the enclosing effect of the glass ball despite the obvious importance of the artificial flowers within. Similarly, in Larry B. Watson Co., a/c Decoration Products Co. v. United States, 64 Cust.Ct. 343, C.D. 4001 (1970) the physical adaptability to use of a polyvinyl chloride film was held to be the essential" }, { "docid": "257792", "title": "", "text": "States, 488 F.2d 544 (CCPA 1973). Conclusion Nahrgang’s claim under item 771.42, TSUS, was properly dismissed because it failed to prove that the imported articles were almost wholly of plastics as required by the superior heading to that provision. Accordingly, the judgment of the Court of International Trade is affirmed. AFFIRMED. JACK R. MILLER, Circuit Judge, dissenting. I respectfully dissent in view of Jarvis Clark Co. v. United States, 733 F.2d 873, 878 (Fed.Cir.1984). As in Jarvis Clark, the trial court in this case failed to consider “whether the government’s classification is correct, both independently and in comparison with the importer’s alternative.” Id. I do not agree with the majority that the trial court sustained the Customs Service classification but believe, instead, that the trial court held that the Customs Service classification was not precluded in view of the fact that appellant failed to establish its claimed classification. Accordingly, I would reverse the decision of the Court of International Trade and remand for further consideration in light of Jarvis Clark. . Item 355.25 states: Schedule 3, Part 4, Subpart C — Wadding, Felts, and Articles Thereof; Fish Netting and Nets; Artists’ Canvas; Coated or Filled Fabrics; Hose; Machine Clothing; Other Special Fabrics ■it it it * * it Webs, wadding, batting, and nonwoven fabrics, including felts and bonded fabrics, and articles not specially provided for of any one or combination of these products, all the foregoing, of textile materials, whether or not coated or filled: it it it it it it 355.25 Of manmade fibers.............12$ per lb. + 15% ad val . Item 771.42 states: Schedule 7, Part 12, Subpart B — Rubber and Plastics Waste and Scrap; Rubber and Plastic Film Strips, Sheets, Plates, Slabs, Blocks, Filaments, Rods, Tubing and Other Profile Shapes ****** Film, strips, sheets, plates, blocks, filaments, rods,' seamless tubing, and other profile shapes, all of the foregoing wholly or almost wholly of rubber or plastics: it it it it * * Not of cellulosic plastics materials: Film strips, and sheets, all the foregoing which are flexible: it it * it * * 771.42 Other..............................................6% ad" } ]

[ { "docid": "22219490", "title": "", "text": "to the question of the sufficiency of the Comptroller General’s telegram as an approval under the Loan Agreements. Since there are enough contacts with New York to validate the parties’ choice of New York law as governing under any choice of law analysis, we need not reach the question of what jurisdiction’s law would be applied if a serious challenge to the parties’ ability to choose New York law could be mounted. Analysis is more difficult with respect to choice of law for the CVF-DeLyra fraud issues. Were this a diversity case, Klaxon Co. v. Stentor Elec. Mfg. Co., Inc., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941), would require that we look to the choice of law doctrines of the forum state. This is a federal question case, however, and it is appropriate that we apply a federal common law choice of law rule in order to decide which of the concerned jurisdiction’s substantive law of fraud (i. e., that of New York or that of Venezuela) should govern. The use of federal common law in specialized areas where jurisdiction is not based on diversity has been sanctioned by the Supreme Court since the day Erie was decided, see Hinderlider v. LaPlata River Co., 304 U.S. 92, 58 S.Ct. 803, 82 L.Ed. 1202 (1938); and the availability of a federal choice of law rule in a case like this, where jurisdiction is based on a statute meant to give a federal forum to nationally chartered banks, is supported by Clearfield Trust Co. v. United States, 318 U.S. 363, 63 S.Ct. 573, 87 L.Ed. 838 (1943). In this case we think that the question of whether or not CVF was defrauded by the DeLyra interests is one best resolved under Venezuelan law. Unlike the validity of the guarantees, the resolution of this question has no repercussions in the world of international commercial transactions. It involves no choice of law decision made by the parties. Instead, it calls for a determination whether or not a Venezuelan corporation, Cariven (or its two principals, one of whom, Gascue, is Venezuelan) defrauded" } ]

[ { "docid": "937535", "title": "", "text": "accommodate the equities among the parties to the policies of those states.” Id., 329 U.S. at 162, 67 S.Ct. at 239. In the case before us, the transaction sought to be enforced in a Texas federal forum has significant contacts with both Texas and Mississippi. A threshold question here is whether in resolving issues of state law arising in the context of a bankruptcy proceeding, a federal court must apply the choice of law rules of the forum state in which it sits, see Klaxon v. Stentor Elec. Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); Erie R.R. Co. v. Tomkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), or may exercise its independent judgment and choose whatever state’s substantive law it deems appropriate in the context of the case before it, see 1A Moore’s Federal Practice ¶ 0.325, at 3406-13 (1980). Both the Supreme Court and this circuit have taken care to avoid resolving this question in the context of the Bankruptcy Act. E. g., Vanston Bondholders Protective Committe v. Green, supra, 329 U.S. at 161-62, 67 S.Ct. at 239; McKenzie v. Irving Trust Co., 323 U.S. 365, 371 n.2, 65 S.Ct. 405, 408 n.2, 89 L.Ed. 305 (1945); Fahs v. Martin, 224 F.2d 387, 396-97 (5th Cir. 1955); but cf. In Re Wallace Lincoln-Mercury Co., Inc., 469 F.2d 396, 400 n.1 (5th Cir. 1972) (“In this federal bankruptcy case the District Court is not obliged to use the choice-of-law methodology of the forum state....”) (dicta ). To the extent we are faced with this threshold question of whether a federal or a forum (Texas) choice of law rule applies, we see no need to resolve it. For reasons to be elaborated, we find that Texas, by its adoption of the UCC, has provided a choice of law rule specifically directed to contrac tual choice of law provisions by parties to transactions regulated by the UCC. Texas UCC § 1.105(a). If we were required to exercise independent federal judgment in choosing whether to apply Texas or Mississippi law to this UCC-regulated transaction involving" }, { "docid": "4590322", "title": "", "text": "Cir.1995); In re SMEC, Inc., 160 B.R. 86, 89-91 (M.D.Tenn.1993). The opposite view is that, unless a compelling federal interest dictates otherwise, a bankruptcy court should apply the choice of law rules of the state in which it sits. E.g., Bianco v. Erkins (In re Gaston & Snow), 243 F.3d 599 (2d Cir.2001); Amtech Lighting Servs. Co. v. Payless Cashways, Inc. (In re Payless Cashways), 203 F.3d 1081, 1084 (8th Cir.2000); In re Merritt Dredging Co., 839 F.2d 203, 205-06 (4th Cir.1988). The latter approach seeks to reconcile the Klaxon and Vanston cases. It recognizes the importance of the Erie principle, applied in Klaxon, that a federal court should not apply federal law to questions whose determination is a matter of state law, while also calling for the use of federal principles when an appropriate federal policy requires them in accordance with the Vanston ruling. The Fourth Circuit in Merritt Dredging, 839 F.2d at 206, called for a “compelling” federal interest to justify application of the federal choice of law rule, while the Second Circuit in Gaston & Snow, 243 F.3d at 606, characterized the required level of the federal interest as “significant.” The Eleventh Circuit does not appear to have addressed the issue in a published opinion. Two cases from the Fifth Circuit decided prior to the creation of the Eleventh Circuit, which are binding precedent in the Eleventh Circuit, address the issue, however. In Crist v. Crist (In re Crist), 632 F.2d 1226, 1229 (5th Cir.1980), the court observed, “When disposition of a federal question requires reference to state law, federal courts are not bound by the forum state’s choice of law rules, but are free to apply the law considered relevant to the pending controversy.” In the later case of Woods-Tucker Leasing Corp. v. Hutcheson-Ingram Development Co., 642 F.2d 744, 748-49 (5th Cir. 1981), the Fifth Circuit in a bankruptcy dispute requiring the application of state law noted the tension between the Klaxon rule requiring application of the forum state’s choice of law in a diversity action with the Vanston directive to apply federal common law in" }, { "docid": "17554292", "title": "", "text": "law, typically state law. This reading of § 502(b)(1) is consistent not only with the plain statutory text,' but also with the settled principle that “[creditors’ entitlements in bankruptcy arise in the first instance from the underlying substantive law creating the debtor’s obligation, subject to any qualifying or contrary provisions of the Bankruptcy Code.” Raleigh v. Illinois Dept. of Revenue, 530 U.S. 15, 20, 120 S.Ct. 1951, 147 L.Ed.2d 13 (2000). That principle requires bankruptcy courts to consult state law in determining the validity of most claims. See ibid. Indeed, we have long recognized that the “ ‘basic federal rule’ in bankruptcy is that state law governs the substance of claims, Congress having ‘generally left the determination of property rights in the assets of a bankrupt’s estate to state law.’” Ibid. Travelers Casualty and Surety Co. of America v. Pacific Gas and Elec. Co., 549 U.S. 443, 450-51, 127 S.Ct. 1199, 167 L.Ed.2d 178 (2007) (citations omitted); see, e.g., Vanston Bondholders Protective Committee v. Green, 329 U.S. 156, 161, 67 S.Ct. 237, 91 L.Ed. 162 (1946) (“What claims of creditors are valid and subsisting obligations against the bankrupt at the time a petition in bankruptcy is filed, is a question which, in the absence of overruling federal law, is to be determined by reference to state law.”). In determining which state law is relevant, I must consider federal common law choice of law principles. When bankruptcy litigation involves a dispute arising from federal substantive law, such as 11 U.S.C. § 523(a), federal common law principles typically will govern. See generally Gluck v. Unisys Corp., 960 F.2d 1168, 1179 n. 8 (3d Cir.1992) (holding that federal common law governs disputes involving ERISA); In re Miller, 292 B.R. 409, 413 (9th Cir. BAP 2003). Thus, in decisions involving objections to discharge and non-dischargeability, courts have applied federal common law rather than the forum state’s choice of law approach to determine relevant state law. See, e.g., Matter of Crist, 632 F.2d 1226, 1229 (5th Cir.1980), cert. denied, 451 U.S. 986, 101 S.Ct. 23?1, 68 L.Ed.2d 844 (1981); In re Segretario, 258 B.R. 541," }, { "docid": "1906673", "title": "", "text": "law. In determining the choice of law issue, the court probably would apply federal common law choice of law rules because the court possesses federal question jurisdiction over any claim based on section 544(b) of the Bankruptcy Code. See Corporacion Venezolana de Fomento v. Vintero Sales Corp., 629 F.2d 786, 795 (2d Cir.1980), cert. denied, 449 U.S. 1080, 101 S.Ct. 863, 66 L.Ed.2d 804 (1981) (federal common law in specialized areas where jurisdiction is not based on diversity has been sanctioned by the Supreme Court since the Erie case was decided); Koreag, Controle et Revision S.A. v. Refco FIX Associates, Inc. (In re Koreag, Controle et Revision S.A.), 961 F.2d 341, 350 (2d Cir.), cert. denied, — U.S. -, 113 S.Ct. 188, 121 L.Ed.2d 132 (1992) (case under section 304 of the Bankruptcy Code in which, in dicta, circuit court indicated that federal principles should guide consideration of which jurisdiction’s substantive law to apply in eases arising out of federal law, particularly where important federal bankruptcy policy is implicated). The federal common law approach, consonant with section 6(2) of the Restatement (Second) of Conflict of Laws (the “Restatement”), is to employ the law of the jurisdiction with the most significant relationship. So, too, if one employs the choice of law test for tort claims (the most likely test to be utilized) in this fraudulent conveyance action, under section 145 of the Restatement one is directed to the law of the state with the most significant relationship to the occurrence and the parties under the principles stated in section 6. In that instance, contacts to be taken into account in applying the principles of section 6 include the place where the injury occurred; the place where the conduct causing the injury occurred; the domicil, residence, nationality, place of incorporation and place of business of the parties; and the place where the relationship, if any, between the parties is centered. Best is a Virginia corporation whose headquarters are in that state. Its catalog showrooms and jewelry stores are located in twenty-two and seven states, respectively. Best’s distribution centers are in Virginia, Nevada," }, { "docid": "937534", "title": "", "text": "be enforced. Resolu tion of the substantive issues does not implicate any federal rule or bankruptcy policy — but only whether, under applicable state law (either that of Texas or of Mississippi) the transaction is in fact a secured loan rather than a true sale-leaseback; and if a loan, whether it is usurious. Under these circumstances, whether the claim of the creditor is a “valid and subsisting” obligation “is a question which, in the absence of overruling federal law, is to be determined by reference to state law.” Vanston Bondholders Protective Committee v. Green, 329 U.S. 156, 161, 67 S.Ct. 237, 239, 91 L.Ed. 162 (1946) (holding, however, that under its circumstances the payment of interest on interest implicated federal bankruptcy policies and was determinable by federal, not state, law). Where the transaction has multistate contacts (as here), Vanston continues, the determination of which particular state’s law should apply “requires the exercise of an informed judgment in the balancing of all the interests of the states with the most significant contacts in order best to accommodate the equities among the parties to the policies of those states.” Id., 329 U.S. at 162, 67 S.Ct. at 239. In the case before us, the transaction sought to be enforced in a Texas federal forum has significant contacts with both Texas and Mississippi. A threshold question here is whether in resolving issues of state law arising in the context of a bankruptcy proceeding, a federal court must apply the choice of law rules of the forum state in which it sits, see Klaxon v. Stentor Elec. Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); Erie R.R. Co. v. Tomkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), or may exercise its independent judgment and choose whatever state’s substantive law it deems appropriate in the context of the case before it, see 1A Moore’s Federal Practice ¶ 0.325, at 3406-13 (1980). Both the Supreme Court and this circuit have taken care to avoid resolving this question in the context of the Bankruptcy Act. E. g., Vanston Bondholders Protective" }, { "docid": "17439334", "title": "", "text": "excluding any choice of law rule that directs the application of the laws of another jurisdiction, irrespective of the places of execution or of the order in which signatures of the parties are affixed or of the place of performance.” MSPA, § 8.3 (emphasis in original). The parties appear to agree that California law is applicable to the Court’s interpretation of the MSPA. . The Court recognizes that, under binding precedent from the United States Supreme Court and the Fifth Circuit Court of Appeals, bankruptcy courts may not always be bound to apply the conflicts principles of the forum state. See Vanston Bondholders Protective Committee v. Green, 329 U.S. 156, 67 S.Ct. 237, 91 L.Ed. 162 (1946); Matter of Crist, 632 F.2d 1226, 1229 (5th Cir.1980) (\"When disposition of a federal question requires reference to state law, federal courts are not bound by the forum state’s choice of law rules, but are free to apply the law considered relevant to the pending controversy.”). However, in this particular case, the Court finds it appropriate to apply the choice of law principles of the forum state, as the issue involved is one that could have been raised by APX outside of bankruptcy had the Debtors' bankruptcy case not intervened. Additionally, following its decision in Crist, the Fifth Circuit Court of Appeals stated that the court had \"taken care to avoid resolving” the question of whether bankruptcy courts are bound to apply the conflicts rules of the forum state. Woods-Tucker Leasing Corp. of Ga. v. Hutcheson-Ingram Development Co., 642 F.2d 744, 748 (5th Cir.1981). Even in that later case, the court left open the possibility that, even if a bankruptcy court is not bound to apply the conflicts rules of the forum state, it may choose to do so when “the issue presents a question that is 'independent of bankruptcy and precedes it,’ ... and that should be resolved in a manner that is not inconsistent with the resolution that would have occurred had the bankruptcy proceeding not intervened.” Id. at 748 n. 8. The Court believes that these claims would fall within" }, { "docid": "22575288", "title": "", "text": "of this case. We conclude that the law governing damages is determined by reference to the relevant sovereign’s law, not federal common law. II. Which Sovereign’s Law Governs Damages ? We are thus faced with a choice of law question. Jurisdiction in this case was predicated on the federal question presented under the Convention. See Benjamins v. British Euro. Airways, 572 F.2d 913, 919 (2d Cir.1978) (Convention creates federal cause of action), cert. denied, 439 U.S. 1114, 99 S.Ct. 1016, 59 L.Ed.2d 72 (1979). The “forum jurisdiction” is therefore federal court. In cases arising under other federal statutes, we have applied a “federal common law choice of law rule.” Corporacion Venezolana de Fomento v. Vintero Sales Corp., 629 F.2d 786, 795 (2d Cir.1980) (arising under Edge Act), cert. denied, 449 U.S. 1080, 101 S.Ct. 863, 66 L.Ed.2d 804 (1981); see also Aaron Ferer & Sons Ltd. v. Chase Manhattan Bank, 731 F.2d 112, 121 (2d Cir.1984) (following Vintero Sales). In the absence of Congressional guidance, we have from time to time consulted the Restatement (Second) of Conflict of Laws (1971) in fashioning that federal rule. See Aaron Ferer, 731 F.2d at 121. Other circuits have also consulted the Restatement. See, e.g., Bickel v. Korean Air Lines Co., 83 F.3d 127, 131 (6th Cir.1996) (Warsaw Convention case); In re Lindsay, 59 F.3d 942, 948 (9th Cir.1995) (bankruptcy proceeding), cert. denied, — U.S. -, 116 S.Ct. 778, 133 L.Ed.2d 730 (1996); Edelmann v. Chase Manhattan Bank, N.A, 861 F.2d 1291, 1295 (1st Cir.1988) (Edge Act); Harris v. Polskie Linie Lotnicze, 820 F.2d 1000, 1003-04 (9th Cir.1987) (Foreign Sovereign Immunities Act (“FSIA”)). But in other circumstances, courts have used the choice of law rules of the state in which the court sits instead of a federal common law choice of law rule. See Barkanic v. General Admin. of Civil Aviation of the People’s Republic of China, 923 F.2d 957, 961 (2d Cir.1991) (applying New York’s choice of law principles in action arising under FSIA); see also Petra Int'l 62 F.3d at 1465 (applying District of Columbia’s choice of law rules in action arising" }, { "docid": "6452324", "title": "", "text": "rule of the forum state pursuant to Klaxon, supra, but may exercise its “independent judgment” and choose that state’s substantive law which it deems appropriate in the case before it, pursuant to the Supreme Court’s nondispositive discussion of the issue in Vanston, supra. See In re Holiday Airlines Corp., 620 F.2d 731, 733-34 (9th Cir.1980); Matter of Barney Scho-gel, Inc., 12 B.R. 697, 700 (Bankr.S.D.N.Y.1981); In re L.M.S., 18 B.R. at 430. The “independent judgment” approach has the support of commentators who conclude that a federal bankruptcy court should use federal conflict of law rules (i.e. its independent judgment) when applying a federal law even though it refers to state law since the court is essentially applying a federal scheme of law, e.g., bringing a voidance action pursuant to Section 544(b) that looks to applicable state law. See 4 Collier on Bankruptcy, 11544.02 at 544-13 (15th ed. 1985); 1A Moore’s Federal Practice It 0.322(1) (2d ed. 1981); See also, Note, 68 Harv.L.Rev. 1212, 1219 (1954). Were this Court to exercise its indepem dent judgment as to the proper choice of law rules to apply herein, it would take notice of the guidelines articulated by the Supreme Court'in Vanston, supra, wherein it stated in pertinent part: [Obligations ... often have significant contacts in many states so that the quesr tion of which particular state’s law should measure the obligation seldom lends itself to simple solution. In determining which contact is the most significant in a particular transaction, courts can seldom find a complete solution in the mechanical formulae of the conflicts of law. Determination requires the exercise of an informed judgment in the balancing of all the interests of the states with the most significant contacts in order to best accommodate the equities among the parties to the policies of those states. Vanston, 67 S.Ct. at 239 (emphasis supplied). The Supreme Court set out the above choice of law guidelines within the context of bankruptcy jurisdiction but decided the Vanston case on other grounds. Hence, the above Vanston guidance is dicta, though subsequently adopted as the rule of law by the" }, { "docid": "17439333", "title": "", "text": "GRANTED in part. Automated Power Exchange shall be entitled to payment of $190.00 as an allowed unsecured claim against the Debtors’ bankruptcy estates. IT IS SO ORDERED. . New Power agreed to indemnify APX for any damages or losses incurred in connection with the ADR, including reasonable attorneys’ fees and expenses. Accordingly, this application does not seek payment of fees incurred in connection with the ADR. . Even if the Court concluded that unsecured creditors may not generally seek payment of attorneys' fees as an unsecured claim, the Court would adopt, as APX urges, an exception for solvent debtors. See In re Continental Airlines, Inc., 110 B.R. 276 (Bankr.S.D.Tex.1989) (holding that allowing a solvent debtor to retain estate funds without paying attorneys’ fees, to which the unsecured creditor would otherwise have been legally entitled outside of bankruptcy, would be unjust); see also In re Carter, 220 B.R. 411 (Bankr.D.N.M.1998). . Section 8.3 of the MSPA provides that the \"MSPA shall be governed by, and interpreted in accordance with, the laws of the State of California, excluding any choice of law rule that directs the application of the laws of another jurisdiction, irrespective of the places of execution or of the order in which signatures of the parties are affixed or of the place of performance.” MSPA, § 8.3 (emphasis in original). The parties appear to agree that California law is applicable to the Court’s interpretation of the MSPA. . The Court recognizes that, under binding precedent from the United States Supreme Court and the Fifth Circuit Court of Appeals, bankruptcy courts may not always be bound to apply the conflicts principles of the forum state. See Vanston Bondholders Protective Committee v. Green, 329 U.S. 156, 67 S.Ct. 237, 91 L.Ed. 162 (1946); Matter of Crist, 632 F.2d 1226, 1229 (5th Cir.1980) (\"When disposition of a federal question requires reference to state law, federal courts are not bound by the forum state’s choice of law rules, but are free to apply the law considered relevant to the pending controversy.”). However, in this particular case, the Court finds it appropriate to apply" }, { "docid": "18794196", "title": "", "text": "had given Defendant Schoeneman a power of attorney to act as his attorney at law with respect to this bankruptcy case pending in the State of New York. The power of attorney related to property of this estate that was administered in New York by the Chapter 11 trustee. A bankruptcy court in a core matter is not bound, as is a court sitting in a diversity case, by the choice of law of the forum. Vanston Bondholders Protective Committee v. Green, 329 U.S. 156, 162, 67 S.Ct. 237, 239, 91 L.Ed. 162, (1946) reh. denied 329 U.S. 833, 67 S.Ct. 497, 91 L.Ed. 706 (1947). Thus, this court must apply the federal common law choice of law rule in order to determine the consequences resulting from Schoeneman’s exercise of his power of attorney. Aaron Ferer & Sons, Ltd. v. Chase Manhattan Bank, 731 F.2d 112, 121 (2d Cir.1984); Corporacion Venezolana de Fomento v. Vintero Sales Corp., 629 F.2d 786, 795 (2d Cir.1980) cert denied, 449 U.S. 1080, 101 S.Ct. 863, 66 L.Ed.2d 804 (1981). In the Ferer case the court used a significant relationship test to determine which jurisdiction’s law should apply. In addition to the fact that this estate and its property is administered in New York, the power of attorney which Dabbagh gave to Schoeneman expressly referred to the New York bankruptcy case as the focus for Schoeneman’s actions with respect to the property of this estate. Thus, New York has the most significant relationship to the facts in this case, especially because Da-bbagh authorized Schoeneman to act on his behalf with respect to all matters concerning this estate. This position is supported by Restatement, (Second) Conflict of Law § 292(2) (1971), which declares: (2) The principal will be held bound by the agent’s action if he would so be bound under local law of the state where the agent dealt with the third person, provided at least that the principal had authorized the agent to act on his behalf in that state or had led the third person reasonably to believe that the agent had such" }, { "docid": "4590323", "title": "", "text": "in Gaston & Snow, 243 F.3d at 606, characterized the required level of the federal interest as “significant.” The Eleventh Circuit does not appear to have addressed the issue in a published opinion. Two cases from the Fifth Circuit decided prior to the creation of the Eleventh Circuit, which are binding precedent in the Eleventh Circuit, address the issue, however. In Crist v. Crist (In re Crist), 632 F.2d 1226, 1229 (5th Cir.1980), the court observed, “When disposition of a federal question requires reference to state law, federal courts are not bound by the forum state’s choice of law rules, but are free to apply the law considered relevant to the pending controversy.” In the later case of Woods-Tucker Leasing Corp. v. Hutcheson-Ingram Development Co., 642 F.2d 744, 748-49 (5th Cir. 1981), the Fifth Circuit in a bankruptcy dispute requiring the application of state law noted the tension between the Klaxon rule requiring application of the forum state’s choice of law in a diversity action with the Vanston directive to apply federal common law in bankruptcy matters but declined to address the issue because the result was the same under either law. But the court noted, “Even if a federal bankruptcy court is not bound, as a general rule, to apply the forum state’s choice of law rules in its resolution of issues of state law, there may nevertheless be issues which should be so resolved.” Id. at 748 n. 8. Crist’s statement that a federal court is “free” to choose the state law it considers relevant to a controversy involving a federal question bears further analysis. Surely such freedom is limited to an exercise of properly guided discretion. Similarly, the observation in Woods-Tucker Leasing that there may be some issues that a federal court should resolve in accordance with the forum state’s choice of law rules necessarily requires a lower court to exercise properly guided discretion to determine whether the issue before it falls into such a category. These two cases stand for the proposition that a bankruptcy court may exercise its discretion to apply a state’s choice of" }, { "docid": "19795508", "title": "", "text": "law governs the validity of most property rights, and except when the bankruptcy code specifies otherwise, bankruptcy courts must apply the relevant state law. Butner v. United States, 440 U.S. 48, 54, 99 S.Ct. 914, 59 L.Ed.2d 136 (1979); In re Wright, 492 F.3d 829, 832 (7th Cir.2007) (“[S]tate law determines rights and obligations when the [Bankruptcy] Code does not supply a federal rule.”). Thus, there is a tension as to whether bankruptcy courts follow federal common law choice-of-law principles or the forum state’s choice-of-law principles. A review of the case law does little to resolve this tension. In contemplating which set of laws to apply to determine a creditor’s claim for interest on unpaid interest, the Supreme Court once observed that: [Obligations ... often have significant contacts in many states, so that the question of which particular state’s law should measure the obligation seldom lends itself to simple solution. In determining which contact is the most significant in a particular transaction, courts can seldom find a complete solution in the mechanical formulae of the conflicts of law. Determination requires the exercise of an informed judgment in the balancing of all the interests of the states with the most significant contacts in order best to accommodate the equities among the parties to the policies of those states. Vanston Bondholders Protective Comm. v. Green, 329 U.S. 156, 161-62, 67 S.Ct. 237, 91 L.Ed. 162 (1946). Some have taken this passage to indicate the Court’s intent to separate bankruptcy jurisdiction from diversity jurisdiction for choice-of-law purposes. See, e.g., In re SMEC, Inc., 160 B.R. 86, 90-91 (Bankr.M.D.Tenn.1993); In re Kaiser Steel Corp., 87 B.R. 154, 158 (Bankr.D.Colo.1988). The Court in Vanston did not have to make a choice of state laws to decide the claim before it, however, and so the passage was only dicta. Since Vanston, the Supreme Court has not addressed whether federal choice-of-law rules or the choice-of-law rules of the forum state apply in bankruptcy, and the courts of appeals that have reached the question have been divided. Compare In re Lindsay, 59 F.3d 942, 948 (9th Cir.1995) (“In" }, { "docid": "20310837", "title": "", "text": "banks. Corporacion Venezolana de Fomento v. Vintero Sales Corp., 629 F.2d 786 (2d Cir.1980), cert, denied, 449 U.S. 1080, 101 S.Ct. 863, 66 L.Ed.2d 804 (1981). Although claims under § 544(b) refer to applicable state law, bankruptcy courts hearing such claims sit in federal question jurisdiction as a result of the Bankruptcy Code and are free to apply federal choice of law rules. B. Defining Federal Choice of Law Rules Federal choice of law rules dictate that the law of the state with the most significant contacts should apply. A court makes this determination by exercising its independent judgment. Vanston Bond holders, 329 U.S. at 162, 67 S.Ct. 237. The independent judgment test or the most significant contacts test recommended by Vanston is “essentially synonymous with the ‘most significant relationship’ approach adopted by” the Restatement (Second) Conflict of Laws (“Restatement”). In re Kaiser Steel Corp., 87 B.R. 154, 158 (Bankr.D.Colo.1988). Subsection 2 of § 6 of the Restatement states the general principles for resolving conflict of law issues: When there is no [statutory] directive, the factors relevant to the choice of the applicable rule of law include: (a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of the other interested states and the relative interests of those states in the determination of the particular issue, (d) the protection of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity of result, and (g) ease in the determination and application of the law to be applied. Restatement (Seoond) of Conflicts § 6 (1971). The comments to § 6 illuminate just what approach should be taken in evaluating these factors, particularly comment c. First, the factors listed are non-exhaustive. Restatement (Seoond) of Conflicts § 6 cmt. c (1971). Second, the factors are not listed in any order of importance. Rather, different weight should be given to a particular factor or a group of factors depending on the areas of the choice of law. Id. Third, any choice of law rule is not necessarily a" }, { "docid": "19795509", "title": "", "text": "conflicts of law. Determination requires the exercise of an informed judgment in the balancing of all the interests of the states with the most significant contacts in order best to accommodate the equities among the parties to the policies of those states. Vanston Bondholders Protective Comm. v. Green, 329 U.S. 156, 161-62, 67 S.Ct. 237, 91 L.Ed. 162 (1946). Some have taken this passage to indicate the Court’s intent to separate bankruptcy jurisdiction from diversity jurisdiction for choice-of-law purposes. See, e.g., In re SMEC, Inc., 160 B.R. 86, 90-91 (Bankr.M.D.Tenn.1993); In re Kaiser Steel Corp., 87 B.R. 154, 158 (Bankr.D.Colo.1988). The Court in Vanston did not have to make a choice of state laws to decide the claim before it, however, and so the passage was only dicta. Since Vanston, the Supreme Court has not addressed whether federal choice-of-law rules or the choice-of-law rules of the forum state apply in bankruptcy, and the courts of appeals that have reached the question have been divided. Compare In re Lindsay, 59 F.3d 942, 948 (9th Cir.1995) (“In federal question cases with exclusive jurisdiction in federal court, such as bankruptcy, the court should apply federal, not forum state, choice-of-law rules.”), with In re Gaston & Snow, 243 F.3d 599, 605-06 (2d Cir.2001) (concluding that a bankruptcy court should apply the choice of law rules of the forum state). The Seventh Circuit has not reached the question. See In re Morris, 30 F.3d 1578, 1582 (7th Cir.1994) (acknowledging the difficult question of whether federal or forum choice-of-law rules apply in bankruptcy cases, but declining to resolve it because federal and forum state choice-of-law principles yielded the same result in that case); see also Fogel v. Zell, 221 F.3d 955, 966 (7th Cir.2000) (referencing “persisting uncertainty as to whether state or federal law supplies the choice of law rules in a bankruptcy ease.”). Appellants do not dispute that if a federal choice-of-law analysis applies to this case, Nevada substantive law would apply and — based on the bankruptcy court determination on remand — the claims would be allowed. Therefore, if we conclude that Wisconsin choice-of-law" }, { "docid": "18794195", "title": "", "text": "creditors in Class 7. .Moreover, Dabbagh, and the estate which retained a lien on the horses, realized no value from the auction sale conducted by the trustee’s employer, Fasig-T-ipton. In light of these operative facts, the court must now determine the extent of the defendants’ liability, if any, with respect to the shortfall issue. Another issue for consideration is the estate’s claim for the sale of stallion seasons which Dabbagh’s attorney in fact and at law, Charles W. Schoeneman, negotiated with the Chapter 11 trustee after the trustee’s assignment of horses to Dabbagh. CHOICE OF LAW Inexplicably, the parties did not attempt to show which forum’s law should govern this action. The Chapter 11 trustee is a resident of New York. Defendant Da-bbagh is a subject and resident of the Kingdom of Saudi Arabia. Defendant Schoeneman is a resident of Washington, D.C. The facts in this case involve horses located in Kentucky and Maryland that were owned by the debtors who reside in Louisiana and who owned a horse farm in New York. Defendant Dabbagh had given Defendant Schoeneman a power of attorney to act as his attorney at law with respect to this bankruptcy case pending in the State of New York. The power of attorney related to property of this estate that was administered in New York by the Chapter 11 trustee. A bankruptcy court in a core matter is not bound, as is a court sitting in a diversity case, by the choice of law of the forum. Vanston Bondholders Protective Committee v. Green, 329 U.S. 156, 162, 67 S.Ct. 237, 239, 91 L.Ed. 162, (1946) reh. denied 329 U.S. 833, 67 S.Ct. 497, 91 L.Ed. 706 (1947). Thus, this court must apply the federal common law choice of law rule in order to determine the consequences resulting from Schoeneman’s exercise of his power of attorney. Aaron Ferer & Sons, Ltd. v. Chase Manhattan Bank, 731 F.2d 112, 121 (2d Cir.1984); Corporacion Venezolana de Fomento v. Vintero Sales Corp., 629 F.2d 786, 795 (2d Cir.1980) cert denied, 449 U.S. 1080, 101 S.Ct. 863, 66 L.Ed.2d 804 (1981)." }, { "docid": "20310836", "title": "", "text": "§ 551. Because these federal causes of action involve important federal bankruptcy law and policy, the Court concludes that federal choice of law rules should apply. The Court’s conclusion comports with the Fifth Circuit’s holding in Crist as well as with the Second Circuit’s holding in Corporación Venezolana de Fomento, both affirmed by the Supreme Court. In Crist, the Fifth Circuit stated “[w]here disposition of a federal question requires reference to state law, federal courts are not bound by a forum state’s choice of law rules, but are free to apply the law considered relevant to the pending controversy.” Crist v. Crist (In re Crist), 632 F.2d 1226, 1229 (5th Cir.1980) (citing 1A MOORE’S FEDERAL PRACTICE ¶ 0.325 (2d ed.1979)), cert. denied, 454 U.S. 819, 102 S.Ct. 100, 70 L.Ed.2d 90 (1981) (applying federal choice of law rules). In Corpora-ción Venezolana de Fomento, the Supreme Court affirmed the Second Circuit’s application of federal choice of law rules in a federal question case that was based on a statute giving a federal forum to nationally chartered banks. Corporacion Venezolana de Fomento v. Vintero Sales Corp., 629 F.2d 786 (2d Cir.1980), cert, denied, 449 U.S. 1080, 101 S.Ct. 863, 66 L.Ed.2d 804 (1981). Although claims under § 544(b) refer to applicable state law, bankruptcy courts hearing such claims sit in federal question jurisdiction as a result of the Bankruptcy Code and are free to apply federal choice of law rules. B. Defining Federal Choice of Law Rules Federal choice of law rules dictate that the law of the state with the most significant contacts should apply. A court makes this determination by exercising its independent judgment. Vanston Bond holders, 329 U.S. at 162, 67 S.Ct. 237. The independent judgment test or the most significant contacts test recommended by Vanston is “essentially synonymous with the ‘most significant relationship’ approach adopted by” the Restatement (Second) Conflict of Laws (“Restatement”). In re Kaiser Steel Corp., 87 B.R. 154, 158 (Bankr.D.Colo.1988). Subsection 2 of § 6 of the Restatement states the general principles for resolving conflict of law issues: When there is no [statutory] directive, the" }, { "docid": "20310835", "title": "", "text": "11 U.S.C. § 544. Even so, such claims are not pendant state claims in federal bankruptcy cases, but are federal causes of action rooted in federal bankruptcy law and policy. Southmark Corp. v. Crescent Heights VI, Inc. (In re Southmark Corp.), 95 F.3d 53, 53 n. 7 (5th Cir.1996). Moreover, bankruptcy courts hear such claims as part of their duty to administer and enforce the Bankruptcy Code. See Vanston Bondholders Protective Comm. v. Green, 329 U.S. 156, 162-63, 67 S.Ct. 237, 91 L.Ed. 162 (1946). “[A] purpose of bankruptcy is to administer an estate as to bring about a ratable distribution of assets among the bankrupt’s creditors.” Id. at 161, 67 S.Ct. 237. “[T]he purpose of ... avoidance provisions [such as § 544(b)] ... is to prevent debtors from illegitimately disposing of property that should be available to their creditors.” See Palmer & Palmer, P.C. v. U.S. Tr. (In re Hargis), 887 F.2d 77, 79 (5th Cir.1989). In short, these claims are for the benefit of the bankruptcy estate and its creditors. See 11 U.S.C. § 551. Because these federal causes of action involve important federal bankruptcy law and policy, the Court concludes that federal choice of law rules should apply. The Court’s conclusion comports with the Fifth Circuit’s holding in Crist as well as with the Second Circuit’s holding in Corporación Venezolana de Fomento, both affirmed by the Supreme Court. In Crist, the Fifth Circuit stated “[w]here disposition of a federal question requires reference to state law, federal courts are not bound by a forum state’s choice of law rules, but are free to apply the law considered relevant to the pending controversy.” Crist v. Crist (In re Crist), 632 F.2d 1226, 1229 (5th Cir.1980) (citing 1A MOORE’S FEDERAL PRACTICE ¶ 0.325 (2d ed.1979)), cert. denied, 454 U.S. 819, 102 S.Ct. 100, 70 L.Ed.2d 90 (1981) (applying federal choice of law rules). In Corpora-ción Venezolana de Fomento, the Supreme Court affirmed the Second Circuit’s application of federal choice of law rules in a federal question case that was based on a statute giving a federal forum to nationally chartered" }, { "docid": "6256999", "title": "", "text": "debts of his New York company would soon be called. In addition, Portnoy seeks to distribute his nonexempt property, which is determined by domestic law, to his creditors and in return receive a bankruptcy discharge. On the other hand, Jersey has an interest in determin ing what rights remain in the settlor of a trust under its law. Many bankruptcy courts have borrowed from the law applicable in diversity eases to hold that the forum state’s choice of law rules are imposed on bankruptcy adjudications where the underlying rights and obligations are defined by state law. See Koreag, 961 F.2d at 350 (citing cases). On the other hand, federal principles should guide consideration of which jurisdiction’s substantive law applies in cases arising out of federal law. Id. (citing Corporacion Venezolana de Fomento v. Vintero Sales Corp., 629 F.2d 786, 795 (2d Cir.1980), cert. denied, 449 U.S. 1080, 101 S.Ct. 863, 66 L.Ed.2d 804 (1981)). Ordinarily, I would have to characterize this action to deny a discharge as either predominantly founded upon state-created rights or involving important concerns implicating national bankruptcy policy. Id. Untangling the intermeshed features of state and federal law is unnecessary in this case, however, because the choice of law rules of the forum, New York, and under federal common law yield the same result. The federal common law choice of law rule is to apply the law of the jurisdiction having the greatest interest in the litigation. Koreag, 961 F.2d at 350; In re Best Products Co., 168 B.R. 35, 51 (Bankr.S.D.N.Y.1994), appeal dismissed as moot, 177 B.R. 791 (S.D.N.Y.), dismissal vacated and ruling of bankruptcy court affirmed, 68 F.3d 26 (2d Cir.1995). New York law similarly provides that “the law of the jurisdiction having the greatest interest in the litigation will be applied, and ... the [only] facts or contacts which obtain significance in defining State interests are those which relate to the purpose of the particular law in conflict.” Istim, Inc. v. Chemical Bank, 78 N.Y.2d 342, 347, 581 N.E.2d 1042, 1044, 575 N.Y.S.2d 796, 798 (1991) (internal quotations omitted); see Wells Fargo Asia Ltd." }, { "docid": "22130879", "title": "", "text": "In re Chanel Fin., Inc. (Continental Cas. Co. v. Kellogg), 102 B.R. 549, 550 (Bankr.N.D.Tex.1988); In re O.P.M. Leasing Servs., Inc. (Hassett v. Far West Fed. Sav. & Loan Ass’n), 40 B.R. 380, 391-92 (Bankr.S.D.N.Y.), aff'd, 44 B.R. 1023 (S.D.N.Y.1984); In re Shepard (Central Trust Co. v. Shepard), 29 B.R. 928, 931 (Bankr.M.D.Fla.1983). In contrast, federal principles should guide our consideration of which jurisdiction’s substantive law applies in cases arising out of federal law. See Corporacion Venezolana de Fomento v. Vintero Sales Corp., 629 F.2d 786, 795 (2d Cir.1980), cert. denied, 449 U.S. 1080, 101 S.Ct. 863, 66 L.Ed.2d 804 (1981). This is especially appropriate when a case involves controversies implicating important federal bankruptcy policy. Cf. Fore Improvement Corp. v. Selig, 278 F.2d 143, 147 (2d Cir.1960) (Friendly, J., concurring) (absent “overriding bankruptcy policy,” state law applies to state-created claims under former Bankruptcy Act). Selecting the appropriate conflicts rules would thus seem to require us to characterize the present issue under § 304(b)(2) as either predominantly founded upon state-created rights, or involving important concerns implicating national bankruptcy policy: For purposes of this appeal, however, we need not untangle the interwoven features of state and federal law, for we discern no significant difference between the applicable federal and New York choice-of-law rules. The federal common law choice-of-law rule is to apply the law of the jurisdiction having the greatest interest in the litigation. See Wells Fargo Asia Ltd. v. Citibank, N.A., 936 F.2d 723, 726-27 (2d Cir.1991), petition for cert. filed, 60 U.S.L.W. 3360 (U.S. Oct. 24, 1991) (No. 91-689); Corporacion Venezolana de Fomento, 629 F.2d at 795. The goal of this analysis is to evaluate the various contacts each jurisdiction has with the controversy, and determine which jurisdiction’s laws and policies are implicated to the greatest extent. New York law provides “ ‘that “the law of the jurisdiction having the greatest interest in the litigation will be applied and that the facts or contacts which obtain significance in defining State interests are those which relate to the purpose of the particular law in conflict.” ’ ” Wells Fargo Asia Ltd.," }, { "docid": "6452323", "title": "", "text": "to apply the conflict of law rules of the forum state. Klaxon v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). However, there is a clear split of authority whether federal courts sitting pursuant to the special grant of bankruptcy jurisdiction are bound to mechanically apply the Klaxon choice of law rule. This issue remains unresolved since the Supreme Court, the Fifth Circuit and certain other federál courts which have addressed the question have failed to settle the matter when they have had the opportunity. See Vanston Bondholders Protective Committee v. Green, 329 U.S. 156, 161-63, 67 S.Ct. 237, 239-40, 91 L.Ed. 162 (1946); Woods-Tucker Leasing Corp. of Georgia v. Hutcheson-Ingram Dev. Co., 642 F.2d 744, 748 (5th Cir.1981); In re L.M.S. Associates, Inc., 18 B.R. 425, 428-30 (Bankr.S.D.Fla.1982); Fox v. Peck Iron and Metal Co., Inc., 25 B.R. 674, 684-87 (Bankr.S.D.Cal.1982). Other courts, including the Ninth Circuit, have determined that a federal court sitting pursuant to bankruptcy jurisdiction should not be required to follow the choice of law rule of the forum state pursuant to Klaxon, supra, but may exercise its “independent judgment” and choose that state’s substantive law which it deems appropriate in the case before it, pursuant to the Supreme Court’s nondispositive discussion of the issue in Vanston, supra. See In re Holiday Airlines Corp., 620 F.2d 731, 733-34 (9th Cir.1980); Matter of Barney Scho-gel, Inc., 12 B.R. 697, 700 (Bankr.S.D.N.Y.1981); In re L.M.S., 18 B.R. at 430. The “independent judgment” approach has the support of commentators who conclude that a federal bankruptcy court should use federal conflict of law rules (i.e. its independent judgment) when applying a federal law even though it refers to state law since the court is essentially applying a federal scheme of law, e.g., bringing a voidance action pursuant to Section 544(b) that looks to applicable state law. See 4 Collier on Bankruptcy, 11544.02 at 544-13 (15th ed. 1985); 1A Moore’s Federal Practice It 0.322(1) (2d ed. 1981); See also, Note, 68 Harv.L.Rev. 1212, 1219 (1954). Were this Court to exercise its indepem dent judgment as" } ]

[ { "docid": "22800485", "title": "", "text": "we decided that funds to investigate unexhausted claims could be awarded to a habeas petitioner even after a petition was dismissed for failure to exhaust. However, our holding in Calderon was based on the power of a district court to authorize funds prior to the initiation of habeas litigation. See Calderon, 107 F.3d at 761-62 (citing McFarland v. Scott, 512 U.S. 849, 114 S.Ct. 2568, 129 L.Ed.2d 666 (1994)). As the power to authorize funds and attorneys’ fees constitutes a special circumstance for jurisdictional purposes, we decline to extend Calderon’s holding, especially where doing so would likely create a conflict with Henry. STANDARD OF REVIEW UNDER AEDPA The question whether the defendant has received ineffective assistance of counsel is a mixed question of law and fact. Strickland v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Chacon v. Wood, 36 F.3d 1459, 1465 (9th Cir.1994). Prior to AEDPA mixed questions in habe-as petitions were reviewed de novo. Moran v. Godinez, 57 F.3d 690, 699 (9th Cir.1995); Crotts v. Smith, 73 F.3d 861, 864 (9th Cir.1996). Under AEDPA, the standard of review we apply is governed by 28 U.S.C. § 2254(d) and the Supreme Court’s recent decision in Williams v. Taylor, — U.S. —, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Under AEDPA, we may reverse a state court’s decision denying relief only if that decision is “contrary to, or involves an unreasonable application of, clearly established federal law as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). In Williams, the Supreme Court reversed the Fourth Circuit’s denial of habeas relief to a capital defendant on ineffective assistance of counsel grounds. In so doing, the Court largely resolved much of the disagreement concerning how to interpret AEDPA’s provision governing federal court review of state court determinations of law. First, the Court made clear that the statute embodies no distinction between pure questions of law and mixed questions of law and -fact that corresponds to its division between decisions “contrary to” federal law and decisions involving an “unreasonable application of’ federal law. The" } ]

[ { "docid": "3837772", "title": "", "text": "Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254, governs our review. We may not issue a writ of habeas corpus unless the state court proceedings either: (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). Martin contends that the state court’s ruling that he was not denied the effective assistance of counsel is contrary to clearly established federal law as articulated by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland, Martin must show that his counsel’s performance was deficient and that the deficient performance prejudiced his defense. 466 U.S. at 687, 104 S.Ct. 2052. To be deficient, counsel’s representation must fall below an objective standard of reasonableness. Id. at 688, 104 S.Ct. 2052. Deficient performance prejudices the defense when the errors were serious enough to deprive the defendant of a fair trial. Id. at 687, 104 S.Ct. 2052. Martin claims that his trial counsel was ineffective for failing to: (1) object on proper grounds to Gilbreath’s testimony regarding Martin’s behavior and emphasis on the protection of clergy members from false accusations of sexual abuse; (2) object on proper grounds to Officer Morancheck’s testimony regarding Martin’s exercise of his rights to counsel and silence; and (3) move for a mistrial following the prosecution’s closing argument, which compared Martin to Jeffrey Dahmer among others. A. Deficient Performance The Wisconsin Court of Appeals ruled that Martin’s attorney was not deficient for failing to object to Gilbreath’s testimony on grounds of relevancy and unfair prejudice because her testimony was admissible to show Martin’s consciousness of guilt. We find that Gilbreath’s testimony was irrelevant and prejudicial, and that Martin’s defense counsel performed deficiently for failing to make the proper objections. By the state court’s logic, Martin’s reaction to Gilbreath’s proposal" }, { "docid": "22589742", "title": "", "text": "But cf. LaJoie, 217 F.3d at 673 n. 13 (granting writ because state court decision was “unreasonable application” of federal law); Williams, 120 S.Ct. at 1516 (reversing denial of writ because state court decision “was contrary to, or involved an unreasonable application of, clearly established Federal law”). IY. Counsel’s Failure to Object to the Felony-Murder Instruction We reject Shackleford’s argument that his trial counsel rendered ineffective assistance by failing to object to the felony-murder instruction. The applicable law that guides our analysis is supplied by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which is “clearly established Federal law” under the AEDPA. See Van Tran, 212 F.3d at 1156; Delgado, 223 F.3d at 980. To show that an attorney’s representation of a client was ineffective under Strickland, the petitioner must establish that (1) the attorney’s representation fell below an objective standard of reasonableness; and (2) the deficient representation prejudiced the defense. 466 U.S. at 687, 104 S.Ct. 2052; Schell v. Witek, 218 F.3d 1017, 1028 (9th Cir.2000). We need not consider whether Shackle-ford’s counsel’s representation fell below an objective standard of reasonableness because, in light of our foregoing analysis, Shackleford cannot show prejudice; he cannot show that had his trial counsel objected, and had the erroneous instruction not been given, there was a reasonable probability that the result of the proceedings would have been different. See Strickland, 466 U.S. at 691, 104 S.Ct. 2052; Williams v. Calderon, 52 F.3d 1465, 1470 (9th Cir.1995). Y. Counsel’s Failure to Present Evidence at the Suppression Hearing Shackleford next contends he was denied effective assistance of counsel because his trial counsel did not present evidence at the suppression hearing concerning his cocaine use, fatigue, and mental deficiencies. Such evidence, he argues, would have shown that he was not competent to waive his Miranda rights and that his confession was the product of coercion. A defendant’s waiver of his Miranda rights is valid if it is voluntary, knowing, and intelligent. Miranda v. Arizona, 384 U.S. 436, 444, 475, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Moran v. Burbine, 475 U.S." }, { "docid": "23285555", "title": "", "text": "Tran v. Lindsey, 212 F.3d 1143, 1152-54 (9th Cir.2000). Even though the district court used the incorrect test for determining whether the state post-conviction court unreasonably applied Strickland, we affirm the district court’s decision because, as discussed below, the state court did not unreasonably apply clearly established federal law. 2. Ineffective Assistance of Counsel To prevail on a claim of ineffective assistance of counsel, Weighall must show that his trial counsel’s performance fell outside a wide range of reasonableness and that he was prejudiced by that performance. See Wilson, 185 F.3d at 988. Prejudice occurs where “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.... A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. (quoting Strickland v. Washington, 466 U.S. 668, 691, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Trial counsel’s failure to request the additional instruction was not unreasonable. The jury was presented with Weighall’s theory of self-defense and the court gave a general use of deadly force instruction that provided the jury with three circumstances in which deadly force would be permitted. Weighall maintained that only one of the circumstances was applicable here-fear that the victim was committing or attempting to commit a felony involving the use or threatened imminent use of physical force. In his closing argument counsel told the jury that the applicable deadly force situation related only to the first circumstance, and then stated that “I think this case boils down to common sense and I think you can evaluate the case, strip the common sense without the use of all these technical rules. I think common sense tells us what we can do for self-defense.” Trial counsel also emphasized several scenarios that would constitute felonious assaults. The evidence, the general instruction, and counsel’s closing argument, including his examples and his emphasis on common sense, put the issue squarely before the jury. See Willis v. United States, 87 F.3d 1004, 1008 (8th Cir.1996) (holding that failure to proffer specific instruction on good faith not ineffective assistance and pointing" }, { "docid": "21868696", "title": "", "text": "and affirmed the Superior Court’s decision that petitioner was not prejudiced by counsel’s failure because the Superior Court had reinstated his right to appeal. Jones, 2003 WL 21254621, at *1. Thus, the court must apply the deferential standard of review provided by § 2254(d)(1) to determine if this claim entitles petitioner to federal habeas relief. Federal habeas relief is only warranted under § 2254(d)(1) if the state court’s adjudication of the claim is either contrary to, or an unreasonable application of, clearly established Federal law as determined by the United States Supreme Court. 28 U.S.C. § 2254(d)(1). In the instant situation, the governing Supreme Court precedent is provided by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prevail on a claim of ineffective assistance of counsel, the petitioner must demonstrate both that: 1) counsel’s performance fell below an objective standard of reasonableness; and 2) counsel’s deficient performance actually prejudiced the petitioner’s case; in other words, there is a reasonable probability that, but for counsel’s faulty performance, the outcome of the proceedings would have been different. Strickland, 466 U.S. at 687-88, 692-94, 104 S.Ct. 2052; Marshall v. Hendricks, 307 F.3d 36, 85 (3d Cir.2002). The Delaware Supreme Court correctly identified Strickland as the proper standard, and analyzed petitioner’s claim within its framework. Thus, the state court’s decision is not contrary to clearly established Federal law. See Williams, 529 U.S. at 406, 120 S.Ct. 1495 The Delaware Supreme Court also did not unreasonably apply Strickland in finding that petitioner did not demonstrate the requisite prejudice. When an attorney fails to file a direct appeal, the appropriate relief is for the trial court to reinstate the defendant’s sentence so that he can perfect an appeal. Rodriquez v. U.S., 395 U.S. 327, 89 S.Ct. 1715, 23 L.Ed.2d 340 (1969); see, e.g., Lewis v. Johnson, 359 F.3d 646, 662 (3d Cir.2004)(after finding that petitioner’s counsel had been ineffective for failing to file a direct appeal, the Third Circuit remanded the matter to the district court “with instructions that it issue a writ of habeas corpus conditioned upon the Commonwealth’s" }, { "docid": "6034535", "title": "", "text": "Supreme Court cases in deciding whether the state court’s resolution of the case constituted an unreasonable application of clearly established federal law.” Fisher v. Roe, 263 F.3d 906, 914 (9th Cir.2001). Habeas relief cannot be granted “simply because the California Supreme Court’s disposition of the case was inconsistent with our own precedent.” Id. To prevail on a claim of ineffective assistance of counsel, a petitioner must show that: (1) “counsel’s performance was deficient;” and (2) “the deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In this case, although it seems likely that Agajani-an’s performance at the guilt phase of the trial was deficient, we need not resolve that issue because we conclude that Vis-ciotti suffered no prejudice as a result of the alleged deficiencies. See Mayfield v. Woodford, 270 F.3d 915, 925 (9th Cir.2001) (en banc) (citing Strickland, 466 U.S. at 697, 104 S.Ct. 2052). To demonstrate prejudice, a 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.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. The strength of the prosecution’s evidence against Visciotti for first degree murder under the felony murder rule and for attempted murder made it highly unlikely that even a highly competent performance by Agajanian could have altered the jury’s verdict. To convict Visciotti under the felony murder rule, the jurors were not required to find malice or premeditation; the “only criminal intent required [was] the specific intent to commit the [robbery].” People v. Dillon, 34 Cal.3d 441, 475, 194 Cal.Rptr. 390, 668 P.2d 697 (1983) (internal quotation marks and citation omitted). The prosecution adduced the testimony of the surviving victim, Wolbert, who knew Visciotti from his workplace and unambiguously identified him as the man who had robbed and shot Dykstra and Wolbert, killing Dykstra. The prosecution also introduced two videotapes in which Visciotti confessed to his plan and intent to rob the men and his" }, { "docid": "6407354", "title": "", "text": "concluding that Cheney “was not denied the right to assistance of counsel, as guaranteed by ... the United States Constitution and as articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).” With respect to defense counsel’s failure to object to the colloquy between the prosecutor and Detective Troxel on cross-examination, the state court held that Cheney had “failed to prove that trial counsel’s failure to object to the admission of certain evidence fell below the constitutional standard for effective assistance of counsel.” As for defense counsel’s failure to make a timely objection to the prosecutor’s improper closing remarks, the state court determined that, while the prosecutor’s statements “caused ... concern, ... [they] did not affect the outcome of the trial or deny petitioner a fair trial.” The Oregon Court of Appeals affirmed the denial of Cheney’s petition without opinion, and the Oregon Supreme Court declined further review. Cheney filed an application for federal habeas relief under 28 U.S.C. § 2254, which repeated the same arguments from his state post-conviction petition. The district court denied Cheney’s application, rejecting the magistrate judge’s recommendation to grant the writ based on defense counsel’s failure to make a timely objection to the prosecutor’s remarks at closing argument. The district court held that the state court’s conclusion that defense counsel’s allegedly deficient representation was not prejudicial did not constitute an unreasonable application of Strickland. Cheney timely filed a notice of appeal. Ill “We review de novo the district court’s decision to grant or deny a petition for a writ of habeas corpus.” Moses v. Payne, 555 F.3d 742, 750 (9th Cir.2009) (alteration and internal quotation marks omitted). Because Cheney filed his federal habeas petition after April 24, 1996, his petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254. Woodford v. Garceau, 538 U.S. 202, 204, 123 S.Ct. 1398, 155 L.Ed.2d 363 (2003); Lambert v. Blodgett, 393 F.3d 943, 965 (9th Cir.2004). Under § 2254(d)(1), a federal court must deny habeas relief with respect to any" }, { "docid": "9970827", "title": "", "text": "a direct appeal, then a post-conviction challenge — both unsuccessfully. Having exhausted these state-court options, Tinsley filed a federal habeas petition on June 26, 2000. He raised the following claims: ineffective assistance of counsel, double jeopardy, denial of due process, right to a properly empaneled grand and petit jury, right to be tried by indictment, right to a trial by an impartial jury and right to be free from compulsory self-incrimination. After an evidentiary hearing concerning the penalty phase, a magistrate recommended denying habeas relief on all claims. With one exception (the addition of another ground on which habeas relief should be denied), the district court accepted the magistrate’s report and recommendation, denying Tinsley’s petition on June 11, 2002. II. Under the Anti-Terrorism and Effective Death Penalty Act, we may grant relief on a federal constitutional claim decided by the state courts on the merits only if the state court’s adjudication of the claim “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.” 28 U.S.C. § 2254(d)(1); see Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Find ings of fact made by the state court are presumed correct, and this presumption may be rebutted only by “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); see Mitchell v. Mason, 325 F.3d 732, 737-38 (6th Cir.2003). A. Tinsley first argues that his trial counsel, Harry Hellings, provided ineffective assistance in violation of the Sixth (and Fourteenth) Amendment in a variety of ways. To establish ineffective assistance of counsel, a petitioner must show (1) that his lawyer’s performance was deficient and (2) that the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In satisfying the first requirement, the petitioner must establish that his lawyer’s performance “fell below an objective standard of reasonableness” as measured by “prevailing professional norms.” Id. at 687-88, 104 S.Ct. 2052. Judicial review of the lawyer’s performance must be “highly deferential,” with “a strong presumption”" }, { "docid": "14558491", "title": "", "text": "either “contrary to,” or was an “unreasonable application” of “clearly established federal law” as set forth by the United States Supreme Court; or (2) if that 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)(1); Tracey v. Palmateer, 341 F.3d 1037, 1042 (9th Cir.2003). To succeed on his ineffective assistance of counsel claim, Riggs must show both that his counsel’s performance was constitutionally deficient and that he was prejudiced by his counsel’s errors. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To warrant relief under Strickland, defense counsel’s performance must have fallen below an “objective standard of reasonableness.” Id. at 688, 104 S.Ct. 2052. Riggs must show a “reasonable probability” that, but for his counsel’s ineffectiveness, the result of his proceedings would have differed. Id. at 694, 104 S.Ct. 2052. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. The Supreme Court’s two-part standard for analyzing claims of ineffective assistance of counsel was clearly established law as of the time of the plea negotiations. In a habeas appeal, we review the last reasoned decision in the state court system. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir.2004). In this case, Riggs filed a direct appeal of his conviction. The California Court of Appeal affirmed the judgment of conviction. However, the direct appeal did not include the ineffective assistance of counsel claim now before us. Riggs subsequently filed a habeas petition in the California Supreme Court asserting, among other causes, an ineffective assistance of counsel claim. The California Supreme Court summarily denied Riggs’ habeas petition. Ordinarily, we look through the California Supreme Court’s summary denial of the ineffective assistance claim to the last reasoned state court decision that did address the claim. See Bailey v. Rae, 339 F.3d 1107, 1112 (9th Cir.2003). However, the only other state court decision addressing Riggs’ conviction was the Court of Appeal decision rejecting Riggs’ direct appeal. As noted above, the direct appeal did not raise the ineffective" }, { "docid": "7293674", "title": "", "text": "denial of his motion, for failure to establish entitlement to relief under Mich. Ct. Rule 6.508(D). Glover then filed the instant habeas action. The district court conditionally granted his petition, finding that counsel was ineffective for failing to timely pursue Glover’s appeal of right. Respondent Birkett appeals. “We review the district court’s grant of a writ of habeas corpus de novo.” Jensen v. Romanowski, 590 F.3d 373, 377 (6th Cir.2009). Under the Anti-terrorism and Effective Death Penalty Act of 1996, a federal court may not grant a writ of habeas corpus on claims adjudicated on the merits in state court unless the state court’s adjudication of the claim “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d). In order to prevail on an ineffective assistance of counsel claim, a petitioner must show that counsel’s performance was deficient and that he was prejudiced by counsel’s deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The parties do not dispute whether counsel’s performance was deficient; Respondent argues only that Glover has not shown prejudice. The Supreme Court has held that “when counsel’s constitutionally deficient performance deprives a defendant of an appeal that he otherwise would have taken, the defendant has made out a successful ineffective assistance of counsel claim entitling him to an appeal.” Roe v. Flores-Ortega, 528 U.S. 470, 484, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000). “[W]e ... presum[e] prejudice with no further showing from the defendant of the merits of his underlying claims when the violation of the right to counsel rendered the proceeding ... entirely nonexistent.” Id. Respondent argues that Glover was not completely deprived of a direct appeal in this case because the Michigan Court of Appeals considered and denied his claims on the merits in considering his application for leave to appeal. We previously considered, and rejected, this argument in Hardaway v. Robinson, 655 F.3d 445 (6th Cir.2011). Like Glover in this case, Hardaway had filed in the state courts a" }, { "docid": "20161368", "title": "", "text": "merits — of fact or law — of the state court that first decided the claims raised. The same Congressionally-supplied standards governed the district court’s consideration of Vasquez’s petition and, accordingly, our focus is not on the errors that the warden charges to the district court, but on the state court record and whether it warrants the relief Vasquez requests. See Parker v. Renico, 506 F.3d 444, 447 (6th Cir.2007) (“We review de novo the district court’s decision to grant or deny habeas relief.”). A AEDPA requires that the writ shall not issue unless we determine that the state court’s adjudication: (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). For an allegation of constitutionally ineffective assistance of counsel, the relevant “clearly established federal law” is Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A counsel’s performance is a deprivation of a defendant’s Sixth Amendment right to counsel where a defendant shows his counsel’s assistance was both deficient and that the deficiency prejudiced the defendant. A performance is deficient only if it “fell below an objective standard of reasonableness” in light of the “prevailing professional norms.” Id. at 687-88, 104 S.Ct. 2052. And a deficient performance is prejudicial 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 probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052. The Ohio trial court did not follow this clearly established law. To be sure, the court cited Strickland and identified a two-part test, measuring for deficiency and prejudice. But the court stated that prejudice occurs only when “the result of petitioner’s trial or legal proceeding would have been different had defense counsel provided proper representation.” (emphasis" }, { "docid": "14309806", "title": "", "text": "court decision affirming a petitioner’s conviction was “contrary to or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States” or if the State proceeding “resulted in a decision that was based on an unreasonable determination of the facts....” 28 U.S.C. § 2254(d). Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), sets forth the constitutional standard for relief based on ineffective assistance of counsel. See Dows v. Wood, 211 F.3d 480, 484-85 (9th Cir.2000). To succeed on an IAC claim, the defendant must show: (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. The Supreme Court further noted that “a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered ... as a result of the alleged deficiencies.” Id. at 697, 104 S.Ct. 2052. Medley has not shown that his inability to testify was prejudicial. Medley argues that he would have testified that he killed Gonzales in self-defense. Medley’s lawyer recommended that Medley not testify because he would have been impeached by his prior convictions and statements he made during a lengthy interview he gave police, which apparently were inconsistent with what Medley intended to testify. Moreover, as the Appellee (“the State”) points out, Medley’s self-defense testimony would have been inconsistent with the “someone else did it” defense previously advanced. Also, there was more than sufficient other evidence to convict Medley. Medley’s girlfriend testified that Medley admitted to the murder, with no mention of any need to act in self-defense, and that Medley had described the details of the crime right after it occurred exactly as did the forensic experts who would later testify as to how the crime transpired. In addition, Medley’s story of self-defense would have been undermined by his theft of the victim’s car and the fact that the victim had more than four dozen knife wounds (which would appear to go well beyond the force necessary for self-defense). In sum, our review of the" }, { "docid": "14309805", "title": "", "text": "request for habeas relief without commenting on the merits. Medley’s ha- beas petition to the superior court focused on alleged ineffective assistance of counsel (“IAC”), but his petitions to the state appellate courts also argued that the trial court had erred by instructing the jury that a flare gun was a firearm. Medley then filed a federal habeas petition in the District Court for the Central District of California, again arguing IAC and violation of the right to a jury determination with respect to whether the flare gun was a firearm. The district court denied the writ, holding that the statutory definition of “firearm” was a question of state law, and therefore it was unreviewable on a federal habeas petition. After a three-judge panel of this court affirmed in a memorandum disposition, we granted rehearing en banc. II. Medley first claims that his attorney provided ineffective assistance by denying him the right to testify. Under the Anti-terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a federal court can grant relief only if the state court decision affirming a petitioner’s conviction was “contrary to or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States” or if the State proceeding “resulted in a decision that was based on an unreasonable determination of the facts....” 28 U.S.C. § 2254(d). Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), sets forth the constitutional standard for relief based on ineffective assistance of counsel. See Dows v. Wood, 211 F.3d 480, 484-85 (9th Cir.2000). To succeed on an IAC claim, the defendant must show: (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. The Supreme Court further noted that “a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered ... as a result of the alleged deficiencies.” Id. at 697, 104 S.Ct. 2052. Medley has not shown that his inability to testify was prejudicial. Medley argues that he would have testified that" }, { "docid": "17036749", "title": "", "text": "court appeal, Bailey’s attorney argued only that Bailey’s 1985 conviction did not qualify under the habitual offender statute but did not challenge the denial of the motion to suppress. The court of appeal affirmed the judgment, and Bailey’s subsequent appeal to the California Supreme Court, raising the same issue, was denied without opinion. Bailey filed several petitions for writs of habeas corpus in the California courts arguing, among other things, that his appellate counsel was ineffective for having failed to challenge the state court’s denial of his motion to suppress evidence. The relevant petitions were denied without opinion. In this court the state has conceded that Bailey has exhausted his state remedies and that the federal courts now have jurisdiction over his claim of ineffective assistance of appellate counsel. The state argues that any failure on the part of Bailey’s appellate counsel to raise the legality of the seizure of the pistol and other evidence in the state appeal was not prejudicial for purposes of Strickland v. Wash ington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) because Bailey would not have prevailed on the appeal if counsel had raised the point. The district court agreed. II. Standard of Review We review the district court’s decision to deny a 28 U.S.C. § 2254 habeas petition de novo. Bribiesca v. Galaza, 215 F.3d 1015, 1018 (9th Cir.2000). Because Bailey filed his petition after April 24, 1996, it is governed by 28 U.S.C. § 2254 as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AED-PA”). La Crosse v. Kernan, 244 F.3d 702, 704 n. 2 (9th Cir.2001); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir.1997) (en banc). Under the relevant provision of AEDPA, a federal court may grant relief only if the state court decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). A state court’s decision can be “contrary to” Federal law (1) when the state court has failed to apply the correct controlling authority from" }, { "docid": "2187937", "title": "", "text": "has explained that the Constitution “prohibits a prosecutor from making race-conscious arguments since it draws the jury’s attention to a characteristic that the Constitution generally demands that the jury ignore.” United States v. Hernandez, 865 F.2d 925, 928 (7th Cir.1989); see also Smith v. Farley, 59 F.3d 659, 663 (7th Cir.1995) (“There is no place in a criminal prosecution for gratuitous references to race....”). Several other circuit courts have expanded on that principle and have held that the admission of government-proffered testimony tying the race or ethnicity of a defendant to the racial or ethnic characteristics of a specific drug trade is improper. See, e.g., United States v. Cabrera, 222 F.3d 590, 594-96 (9th Cir.2000); United States v. Vue, 13 F.3d 1206, 1212-13 (8th Cir.1994); United States v. Cruz, 981 F.2d 659, 663-64 (2d Cir.1992); United States v. Doe, 903 F.2d 16, 20-22 (D.C.Cir.1990). We agree with those circuits and warn that such testimony runs a serious risk of prejudicing a defendant in the eyes of the jury. In Cabrera, the Ninth Circuit reversed two defendants’ convictions for crack cocaine offenses because a detective testifying at the trial repeatedly injected impermissible references to the defendants’ national origin. Cabrera, 222 F.3d at 594-97. During his testimony, the detective made several comments about the drug activity among “Cubans” in the defendants’ neighborhood. Id. at 591-92. He also explained that the drugs purchased from the defendants were packaged in flat wafers, which is a type of packaging common among Cuban drug dealers. Id. at 592. Finally, the detective indicated that Cubans tend to be flight risks. Id. at 593. The Ninth Circuit concluded that even if the testimony about the cocaine packaging was relevant to an issue in the case, the references to the defendants’ national origin were unfairly prejudicial under Rule 403. Id. at 596. In reversing the defendants’ convictions under plain error review, the court emphasized that “[t]he fairness and integrity of criminal trials are at stake if we allow police officers to make generalizations about racial and ethnic groups in order to obtain convictions. People cannot be tried on the" }, { "docid": "21176538", "title": "", "text": "(2d Cir.2004); Busby v. Dretke, 359 F.3d 708, 721 n. 14 (5th Cir. 2004); Johnson v. McKune, 288 F.3d 1187, 1192 (10th Cir.2002); Bacon v. Lee, 225 F.3d 470, 478 (4th Cir.2000); cf. Massachusetts v. United States, 333 U.S. 611, 623, 68 S.Ct. 747, 92 L.Ed. 968 (1948); United States v. Title Ins. & Trust Co., 265 U.S. 472, 486, 44 S.Ct. 621, 68 L.Ed. 1110 (1924). We therefore must review Brooks’ claims based on the deferential requirements of AEDPA. That means we may-grant Brooks’ application for habeas relief only if the state court’s adjudication of his claims “(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). B. Brooks does not contend that the state appellate court’s decision was “contrary to” clearly established Supreme Court precedent. And with good reason: that decision “correctly identified] Strickland as the controlling legal authority” and thus was “not ‘mutually opposed’ to Strickland itself.” Williams v. Taylor, 529 U.S. 362, 406, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). He instead contends that the decision unreasonably applied Strickland. See id. at 411-12, 120 S.Ct. 1495. To establish ineffective assistance, a claimant must show that the attorney’s performance was “deficient” and that this performance “prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Deficient performance occurs when the representation falls “below an objective standard of reasonableness.” Id. at 688, 104 S.Ct. 2052. Prejudice occurs when “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 question in this case is not whether Brooks’ three attorneys had a duty to conduct an adequate investigation into his mental-health history and to provide his experts with the information they needed to present an effective" }, { "docid": "7859769", "title": "", "text": "If a magistrate judge can conduct jury selection, then, logically, he can preside over closing argument as well. A magistrate judge who conducts a civil or misdemeanor trial necessarily must preside over closing argument. Closing argument clearly bears a relation to specified duties magistrate judges are statutorily authorized to perform. Accordingly, where defense counsel consents to proceed before a magistrate judge for tactical or strategic reasons, there is neither a constitutional nor a statutory impediment to delegating closing argument in criminal cases to magistrate judges. See Reyna-Tapia, 328 F.3d at 1121. C. Ineffective Assistance of Counsel Since we hold that the magistrate judge had jurisdiction in this case because of defense counsel’s consent due to trial strategy or tactics and the close relationship between presiding over closing argument and a magistrate judge’s statutorily specified duties, Sheehy’s conduct was not objectively unreasonable and Gamba cannot make the necessary showing of prejudice to show ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). CONCLUSION We affirm the district court’s denial of Gamba’s 28 U.S.C. § 2255 motion. Where the decision is one of trial tactics or legal strategy, defense counsel may waive the defendant’s right to have an Article III judge preside over closing argument without the defendant’s express, personal consent. AFFIRMED. . While we have examined issues involving consent and magistrate jurisdiction, we have never specifically addressed the question posed in this appeal. See United States v. Reyna-Tapia, 328 F.3d 1114, 1119 (9th Cir.2003) (en banc) (holding a magistrate judge may conduct plea colloquies pursuant to Federal Rule of Criminal Procedure 11 if defendant consents); United States v. Sanchez-Sanchez, 333 F.3d 1065, 1067 (9th Cir.2003) (finding the magistrate judge lacked authority to conduct a revocation proceeding because neither defendant nor his counsel consented to allowing the magistrate judge to preside). . In Peretz, the Court also found that \"a defendant has no constitutional right to have an Article III judge preside at jury selection if the defendant has raised no objection to the judge’s absence.” Peretz, 501 U.S. at 936, 111 S.Ct." }, { "docid": "14558490", "title": "", "text": "plead guilty in return for a six-year sentence. This offer was later revised to include a five-year sentence. Riggs’ counsel advised him that he could do better than the five-year offer and Riggs rejected the offer.' However, no better deal was offered. Riggs was eventually convicted of felony petty theft and sentenced to 25-years-to-life in prison. II. STANDARDS OF REVIEW We review de novo the district court’s ruling on a writ of habeas corpus. Van Lynn v. Farmon, 347 F.3d 735, 738 (9th Cir.2003). We review the district court’s ruling on the appropriate remedy for abuse of discretion. Nunes v. Mueller, 350 F.3d 1045, 1056-57 (9th Cir.2003). III. DISCUSSION A. General Legal Standard Because Riggs filed his habeas petition after the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), his appeal is governed by the rules of that Act. See Gill v. Ayers, 342 F.3d 911, 917 (9th Cir.2003). Under AED-PA, we may grant the petition only if the state court’s denial of relief: (1) resulted in a decision that was either “contrary to,” or was an “unreasonable application” of “clearly established federal law” as set forth by the United States Supreme Court; or (2) if that 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)(1); Tracey v. Palmateer, 341 F.3d 1037, 1042 (9th Cir.2003). To succeed on his ineffective assistance of counsel claim, Riggs must show both that his counsel’s performance was constitutionally deficient and that he was prejudiced by his counsel’s errors. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To warrant relief under Strickland, defense counsel’s performance must have fallen below an “objective standard of reasonableness.” Id. at 688, 104 S.Ct. 2052. Riggs must show a “reasonable probability” that, but for his counsel’s ineffectiveness, the result of his proceedings would have differed. Id. at 694, 104 S.Ct. 2052. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. The Supreme Court’s two-part standard for analyzing claims of" }, { "docid": "6034534", "title": "", "text": "to show cause that was limited to counsel’s penalty phase performance, it had “implicitly concluded” that the other claims failed to “state a prima facie case.” In re Visciotti, 14 Cal.4th at 329, 58 Cal.Rptr.2d 801, 926 P.2d 987 (citing People v. Miranda, 44 Cal.3d 57, 119 n. 37, 241 Cal.Rptr. 594, 744 P.2d 1127 (1987) (noting that the issuance of a limited order to show cause in a habeas case is an implicit determination of petitioner’s failure to make a prima facie case on the other claims in his petition); People v. Bloyd, 43 Cal.3d 333, 362-63, 233 Cal.Rptr. 368, 729 P.2d 802 (1987) (same)). On habeas review, when there is no reasoned state court decision to review, we must conduct “an independent review of the record ... to determine whether the state court clearly erred in its application of controlling federal law.” Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir.2000) (citing Van Tran, 212 F.3d at 1153). In doing so, because there is no state court decision, we must “focus primarily on Supreme Court cases in deciding whether the state court’s resolution of the case constituted an unreasonable application of clearly established federal law.” Fisher v. Roe, 263 F.3d 906, 914 (9th Cir.2001). Habeas relief cannot be granted “simply because the California Supreme Court’s disposition of the case was inconsistent with our own precedent.” Id. To prevail on a claim of ineffective assistance of counsel, a petitioner must show that: (1) “counsel’s performance was deficient;” and (2) “the deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In this case, although it seems likely that Agajani-an’s performance at the guilt phase of the trial was deficient, we need not resolve that issue because we conclude that Vis-ciotti suffered no prejudice as a result of the alleged deficiencies. See Mayfield v. Woodford, 270 F.3d 915, 925 (9th Cir.2001) (en banc) (citing Strickland, 466 U.S. at 697, 104 S.Ct. 2052). To demonstrate prejudice, a defendant must show that there is a “reasonable probability that, but for counsel’s unprofessional errors," }, { "docid": "22195628", "title": "", "text": "28 U.S.C. § 2254, alleging ineffective assistance of appellate counsel. The district court granted the petition. We affirmed the district court in Delgado I. II One of the bases for our holding in Delgado I that Delgado received ineffective assistance of appellate counsel was his counsel’s failure to comply with the requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) by filing what is known in California as a Wende brief. See People v. Wende, 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071 (1979). We had previously held that the Wende procedure’s failure to follow the requirements of Anders rendered the Wende procedure fundamentally flawed, and therefore resulted in ineffective assistance of appellate counsel per se. See Davis v. Kramer, 167 F.3d 494, 496-98 (9th Cir.1999). Thus, under circuit precedent applicable at the time, Delgado’s counsel ineffectively assisted Delgado as a matter of law. In Smith, the Supreme Court upheld California’s Wende procedure as constitutionally adequate. See 120 S.Ct. at 763. Thus, on remand we must examine Delgado’s claims under the traditional test for ineffective assistance of counsel laid out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Ill Because Delgado filed his federal habeas petition after April 1, 1996, the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) applies to his petition. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir.) (en banc). On remand, Lewis continues to insist that AEDPA precludes federal courts from granting habeas relief because AEDPA requires complete deference to the state court decision. In Delgado I, we explained that nothing in AEDPA requires federal courts to turn a blind eye to state proceedings or to rubberstamp them. Indeed, the plain words of the statute repudiate this idea. Under AEDPA, a federal court may grant habeas relief if a state court adjudication: (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" }, { "docid": "14139876", "title": "", "text": "at the preliminary hearing. Ramirez’s statements at the preliminary hearing had been read to the jury at trial. Delgadillo argues that the hearsay testimony was inadmissible under California law. The state appellate court rejected this ineffective assistance of counsel argument in its January 12, 2004 decision. Under AEDPA, we must determine whether the state appellate court’s decision is contrary to, or an unreasonable application of, Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See § 2254(d)(1). To establish constitutionally ineffective assistance of counsel under Strickland, a petitioner must show that (1) “counsel’s performance was deficient,” and (2) counsel’s “deficient performance prejudiced the defense.” Strickland, 466 U.S. at 687, 104 S.Ct. 2052. To show that counsel’s performance was deficient, a petitioner must show that “counsel’s representation fell below an objective standard of reasonableness.” Id. at 688, 104 S.Ct. 2052. To establish prejudice, the petitioner must show “that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at 687, 104 S.Ct. 2052. A trial counsel’s failure to object to evidence which is inadmissible under state law can constitute deficient performance under Strickland. See Rupe v. Wood, 93 F.3d 1434, 1444-45 (9th Cir.1996). Delgadillo argues that the hearsay testimony at issue was inadmissible under state law, and argues in the alternative that even if the testimony was admissible in the form of a preliminary hearing transcript, counsel was deficient in failing to object to the live testimony. Delgadillo first argues that the hearsay evidence was not admissible in any form at trial because the evidence was never “properly admitted” at the preliminary hearing. See Cal. Evid. Code § 1294(a). We disagree. California Evidence Code § 1294 provides: (a) The following evidence of prior inconsistent statements of a witness properly admitted in a preliminary hearing or trial of the same criminal matter pur suant to Section 1235 is not made inadmissible by the hearsay rule if the witness is unavailable and former testimony of the witness is admitted pursuant to Section 1291: (1) A videotaped statement introduced" } ]

[ { "docid": "14319469", "title": "", "text": "the delivered paper goods. That judgment remains unsatisfied. . A.R.S. § 44-2348 [U.C.C. § 2-^03] reads, in relevant part, as follows: § 44-2348. Power to transfer; good faith purchase of goods; “entrusting” A. A purchaser of goods acquires all title which his transferor had or had power to transfer except that a purchaser of a limited interest acquires rights only to the extent of the interest purchased. A person with voidable title has power to transfer a good title to a good faith purchaser for value. When goods have been delivered under a transaction of purchase the purchaser has such power even though: 1. The transferor was deceived as to the identity of the purchaser, or 2. The delivery was in exchange for a check which is later dishonored, or 3. It was agreed that the transaction was to be a “cash sale”, or 4. The delivery was procured through fraud punishable as larcenous under the criminal law. . See also General Electric Credit Corp. v. Town & Country Mobile Homes, 117 Ariz. 562, 574 P.2d 50 (App.1977). . The decisions which have construed U.S.C. § 2-403 [A.R.S. § 44-2348] as favoring the secured lender over the reclaiming unpaid cash seller have not escaped criticism. See Note, The Rights of Reclaiming Cash Sellers When Contested by Secured Creditors of the Buyer, 77 Colum.L.Rev. 934 (1977)." } ]

[ { "docid": "6388678", "title": "", "text": "Therefore, under the logically related provisions of the Code, Kodak as a seller had only a security interest in the goods which it admittedly failed to perfect. Because the majority has decided to view this contract as a bailment-sale hybrid transaction, my brothers chose to apply Ala. Code § 7-2-403(2) to this case. However, since I consider this transaction to be an Article 2 contract for sale, I submit that instead we should apply subsection (1) of § 2-403 to this case. Ala.Code § 7-2 — 403 provides in pertinent part: (1) A purchaser of goods acquires all title which his transferor had or had power to transfer except that a purchaser of a limited interest acquires rights only to the extent of the interest purchased. A person with voidable title has power to transfer a good title to a good faith purchaser for value. When goods have been delivered under a transaction of purchase the purchaser has such power even though: (a) The transferor was deceived as to the identity of the purchaser, or (b) The delivery was in exchange for a check which is later dishonored, or (c) It was agreed that the transaction was to be a “cash sale,” or (d) The delivery was procured through fraud punishable as larcenous under the criminal law. (2) Any entrusting of possession of goods to a merchant who deals in goods of that kind gives him power to transfer all rights of the entruster to a buyer in ordinary course of business. (3) “Entrusting” includes any delivery and any acquiescence in retention of possession regardless of any condition expressed between the parties to the delivery or acquiescence and regardless of whether the procurement of the entrusting or the possessor’s disposition of the goods have been such as to be larcenous under the criminal law. It is undisputed that at all times during the Kodak-Sitkin transaction C.I.T. had a perfected security interest in all of Sitkin’s inventory, including after-acquired inventory. As the majority acknowledges, this court, sitting en banc, held in In re Samuels & Co., 526 F.2d 1238 (5th Cir." }, { "docid": "23700417", "title": "", "text": "1172, 1174 (8th Cir.1980); In re Samuels & Co., 526 F.2d 1238, 1242 (5th Cir.), cert. denied, 429 U.S. 834, 97 S.Ct. 98, 50 L.Ed.2d 99 (1976), Evergreen’s failure to disavow the sale prior to the Banks’ “purchase” through foreclosure subordinated Evergreen’s interest to the Banks’ security interests in the scallops. See Mass.Gen.L. ch. 106, § 2-702(3) (“the seller’s right to reclaim ... is subject to the rights of ... [a] good faith purchaser or lien creditor under this Article”); see also id. at § 2-403(1) (“A purchaser of goods acquires all title which his transferor had or had power to transfer____ A person with voidable title has power to transfer good title to a good faith purchaser for value. Where goods have been delivered under a transaction of purchase the purchaser has such a power even though ... (d) the delivery was procured through fraud”) (emphasis added). The difficulty with the district court’s analysis lies in its fundamental premise, viz., that Evergreen, in releasing the scallops to Gloucester pursuant to the letters of guaranty, was a “seller,” and Gloucester, in thus acquiring possession, was a “buyer.” Rather, we think the transaction was one of “entrustment,” see Mass.Gen.L. ch. 106, § 2-403(2), (3), whereby neither Gloucester nor the Banks acquired an interest in the scallops superior to Evergreen’s limited right to their possession. Under the Uniform Commercial Code,' a “seller” is “a person who sells or contracts to' sell goods,” id. at § 2-103(l)(d), and a “buyer” one “who buys or contracts to buy goods,” id. at § 2-103(l)(a). A “sale,” by definition, “consists in the passing of title from the seller to the buyer for a price (section 2^01),” id. at § 2-106(1) (emphasis added), and a “contract for sale” means “a present sale of goods or a contract to sell goods at a future time.” Id. Accordingly, though U.C.C. § 2-401 does not define “title,” noting simply that “each provision of ... Article [2] with regard to the rights, obligations and remedies of the seller, the buyer, purchasers and other third parties applies irrespective of title to the" }, { "docid": "18512806", "title": "", "text": "writing within three months before delivery the ten day limitation does not apply. Except as provided in this subsection the seller may not base a right to reclaim goods on the buyer’s fraudulent or innocent misrepresentation of solvency or intent to pay. (3) The seller’s right to reclaim under subsection (2) is subject to the rights of a buyer in ordinary course or other good faith purchaser under this Article (Section 2-403). Successful reclamation of goods excludes all other remedies with respect to them. Ill.Rev.Stat. ch. 26, ¶ 2-702 (1989). Under this provision, a seller is granted special protection in the form of the right to reclaim goods delivered when the goods were received by the buyer while insolvent as long as the seller makes a timely demand within 10 days of the buyer’s receipt. This is an extraordinary remedy which constitutes preferential treatment as against the buyer’s other creditors and exercise of the reclamation right, therefore, bars all other remedies the seller may have under the UCC. Ill.Rev.Stat. ch. 26, 112-702(3) (1989), Official Comment 11 3. The right of reclamation is also subject to the special protection given to a buyer in the ordinary course, or other good faith purchaser, under § 2-403 of the UCC. Section 2-403(1) states that: A purchaser of goods acquires all title which his transferor had or had power to transfer except that a purchaser of a limited interest acquires rights only to the extent of the interest purchased. A person with voidable title has power to transfer a good title to a good faith purchaser for value. When goods have been delivered through a transaction of purchase the purchaser has such power even though (a) the transferror was . deceived as to the identity of the purchaser, or (b) the delivery was in exchange for a check which is later dishonored, or (c) it was agreed that the sale was to be a cash sale, or (d) the delivery was procured through fraud punishable as larcenous under criminal law. Ill.Rev.Stat. ch. 26, 112-403 (1989). Under this provision, a good faith purchaser for value" }, { "docid": "2058947", "title": "", "text": "II The buyer and the Bank argue that Iowa Code § 554.2702 controls this case. The buyer contends this section bars a seller who successfully reclaims goods from further recovering a deficiency judgment. The Bank agrees that section 2-702 applies, but asserts that because the seller failed to demand return of the goods within ten days of delivery, the reclamation was improper. The Bank asserts that it has an interest in the cattle superior to the unpaid seller based upon a preexisting security interest covering after-acquired property of the defendant buyer. In resolving the questions posed by this appeal, we first determine the relative rights of the parties involved in this sales transaction. A. The rights of the secured party under section 2-403. Section 2-403 gives a transferor power to pass good title to certain transferees even though the transferor does not possess good title. This section contemplates the situation in which a cash seller delivers goods to a buyer who pays by a draft that is subsequently dishonored, and then transfers title to a good-faith purchaser. U.C.C. §§ 2-403(l)(b) & (c). In such a situation, as between the good faith purchaser and the unpaid seller, the former’s claim is clearly superior. Swets Motor Sales, Inc. v. Pruisner, 236 N.W.2d 299, 304-305 (Iowa 1975). Furthermore, section 2-403 does not limit the power of a transferor to pass good title only through sales transactions. The language of the Code specifically provides that “purchasers” may take good title from transferors. The term purchaser is broadly defined in the Code to include an Article IX secured party. See U.C.C. §§ 1-201(32) & (33); Swets Motor Sales, Inc. v. Pruisner, supra, 236 N.W.2d at 304. See also In re Samuels & Co., 526 F.2d 1238, 1242 (5th Cir.), cert. denied, 429 U.S. 834, 97 S.Ct. 98, 50 L.Ed.2d 99 (1976). Here, if the Bank had acted in good faith, its interest in the cattle would be superior to the aggrieved seller. However, as the district court noted, the issue was properly submitted to the jury and the jury determined that the Bank did not" }, { "docid": "5239423", "title": "", "text": "without deciding, that those requirements were satisfied. . Miss.Code Ann. § 75-2-403 (1972) provides in full: (1)A purchaser of goods acquires all title which his transferor had or had power to transfer except that a purchaser of a limited interest acquires rights only to the extent of the interest purchased. A person with voidable title has power to transfer a good title to a good faith purchaser for value. When goods have been delivered under a transaction of purchase the purchaser has such power even though (a) the transferor was deceived as to the identity of the purchaser, or (b) the delivery was in exchange for a check which is later dishonored, or (c) it was agreed that the transaction was to be a “cash sale,” or (d) the delivery was procured through fraud punishable as larcenous under the criminal law. (2) Any entrusting of possession of goods to a merchant who deals in goods of that kind gives him power to transfer all rights of the entruster to a buyer in ordinary course of business. (3) “Entrusting” includes any delivery and any acquiescence in retention of possession regardless of any condition expressed between the parties to the delivery or acquiescence and regardless of whether the procurement of the entrusting or the possessor’s disposition of the goods have been such as to be larcenous under the criminal law. (4) The rights of other purchasers of goods and of lien creditors are governed by the chapters on Secured Transactions (Chapter 9), Bulk Transfers (Chapter 6) and Documents of Title (Chapter 7). . Shell has not alleged that the bank did not dispose of the inventory in a commercially reasonable manner. . Courts have repeatedly emphasized that unpaid sellers can normally prevent their loss by perfecting a purchase money security interest. E.g., In re Samuels & Co., 526 F.2d at 1244; United States v. Wyoming Nat’l Bank, 505 F.2d 1064, 1068 (10th Cir.1974); Kennett-Murray & Co. v. Pawnee Nat’l Bank, 598 P.2d 274, 278 (Okl.Ct.App.f1979). . The Illinois court also held that Futrell did not give value for the cars “floated” by" }, { "docid": "23700416", "title": "", "text": "if it appears — after considering all competent evidence and reasonable inferences in the light most favorable to the non-moving party — that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See, e.g., Continental Grain Co., 972 F.2d at 429-30; National Expositions, Inc. v. Crowley Maritime Corp., 824 F.2d 131, 134 (1st Cir.1987). A. Evergreen’s Interest The district court likened Evergreen’s interest in the scallops to that of a seller of goods, and Gloucester to “an insolvent buyer”, see 806 F.Supp. at 297; hence the putative “sale,” though voidable, was not void until Evergreen disavowed it and moved to reclaim the goods. See Mass.Gen.L. ch. 106 § 2-702(2) (“seller [who] discovers that the buyer has received goods on credit while insolvent ... may reclaim the goods upon demand”) (emphasis added). Under this analysis, since an Article 9 secured party is a “purchaser” of the debtor’s interest in the collateral, see id. at §§ 1-201(32), 1-201(33); Burk v. Emmick, 637 F.2d 1172, 1174 (8th Cir.1980); In re Samuels & Co., 526 F.2d 1238, 1242 (5th Cir.), cert. denied, 429 U.S. 834, 97 S.Ct. 98, 50 L.Ed.2d 99 (1976), Evergreen’s failure to disavow the sale prior to the Banks’ “purchase” through foreclosure subordinated Evergreen’s interest to the Banks’ security interests in the scallops. See Mass.Gen.L. ch. 106, § 2-702(3) (“the seller’s right to reclaim ... is subject to the rights of ... [a] good faith purchaser or lien creditor under this Article”); see also id. at § 2-403(1) (“A purchaser of goods acquires all title which his transferor had or had power to transfer____ A person with voidable title has power to transfer good title to a good faith purchaser for value. Where goods have been delivered under a transaction of purchase the purchaser has such a power even though ... (d) the delivery was procured through fraud”) (emphasis added). The difficulty with the district court’s analysis lies in its fundamental premise, viz., that Evergreen, in releasing the scallops to Gloucester pursuant to the letters of guaranty," }, { "docid": "1086301", "title": "", "text": "proceeding within three days of making its reclamation demand. Therefore, only the first requirement — that of Klondike’s statutory or common law right to reclaim the ice cream — remains for decision by this Court. Section 672.702(2) of the Florida Statutes provides the statutory basis for Klondike’s assertion of a right of reclamation. As stipulated, Klondike discovered that Debtor received the ice cream bars on credit while insolvent and made a reclamation demand within 10 days of Debtor’s receipt of the ice cream bars. Section 672.-702(3) of the Florida Statutes, however, limits any right of reclamation when there has been an intervening buyer in ordinary course or other good faith purchaser. Here, Klondike’s right of reclamation is limited because Barclays qualifies as a good faith purchaser. Klondike does not really question whether Barclays became a good faith purchaser in 1990 when Debtor executed the Loan and Security Agreement. Klondike’s argument is that denominating Barclays or any other lienholder with a preexisting, perfected floating lien on inventory as a good faith purchaser eviscerates the statutorily granted right of reclamation. Absent some showing of bad faith, however, there is not much room to debate that a lienholder with a preexisting, perfected floating lien on inventory is a good faith purchaser with rights superior to those of a reclaiming seller. See, e.g., Stowers v. Mahon (In re Samuels & Co.), 526 F.2d 1238, 1242-1243 (5th Cir.), cert. denied, 429 U.S. 834, 97 S.Ct. 98, 50 L.Ed.2d 99 (1976); Lavonia Mfg. Co. v. Emery Corp., 52 B.R. 944, 946 (E.D.Pa.1985); In re Diversified Food Serv. Distribs., 130 B.R. 427, 429 (Bankr.S.D.N.Y.1991). See, also, 4 Collier on Bankruptcy, ¶ 546.04 at 546-20—546-21. Klondike attempts to avoid the limitation of Section 672.702(3) of the Florida Statutes arguing that a change in statutory language which predates this case removes Barclays from the ambit of Section 672.-702(3). Section 672.702(3) of the Florida Statutes formerly provided the reclaiming seller’s right of reclamation was subject not only to the rights of a buyer in ordinary course or other good faith purchaser but also to the rights of a lien creditor." }, { "docid": "1339118", "title": "", "text": "for grain deliveries. Specifically Harris granted Wathen a $2 million line of credit and, as collateral for its commitment, executed and perfected a valid security interest in Wathen’s grain inventory. The security agreement created a “floating lien”, making all of Wathen’s present or after-acquired inventory subject to Harris’ security interest. Although the bank is a secured party, we are not concerned in this case with its priority or standing within the ranks of other secured creditors. We deal only with the priorities as between the unpaid sellers and the secured creditor. In the context of these sales we turn to Article Two of the UCC for guidance. Based on provisions of this statute as adopted in Kentucky, we conclude that Harris enjoys the status of a good-faith purchaser. Incorporating the' principle of voidable title, Section 2-403 of the UCC gives a transferor (Wathen) the power to pass good title to certain transferees (Harris) although the transferor himself does not possess good title. This power is not limited to cash transferees, but is granted to good-faith “purchasers” for value. The key term “purchasers” is broadly defined in the UCC to include persons who take by sale, discount, negotiation, mortgage, pledge, lien, issue or re-issue, gift or any other voluntary transaction creating an interest in property. A binding commitment to extend credit or to extend a pre-ex-isting indebtedness, accepting delivery under a pre-existing contract, or any other consideration sufficient to support a simple contract, all may constitute value. Harris, as a secured creditor, entered this large “purchaser” class, by UCC definition, in two ways. A security interest granted in inventory can be accurately described both as a “mortgage” and a “voluntary transaction creating an interest in property.” The bank’s binding commitment in 1979 to extend new credit or to extend Wathen’s pre-existing indebtedness constituted the necessary value. Following the letter of the UCC, then, Harris, the secured creditor, is a “purchaser for value” who can receive good title despite Wathen’s voidable title. Section 2-403 also requires a purchaser to act in good faith to ensure an unassailable title. It mandates honesty in" }, { "docid": "1086302", "title": "", "text": "right of reclamation. Absent some showing of bad faith, however, there is not much room to debate that a lienholder with a preexisting, perfected floating lien on inventory is a good faith purchaser with rights superior to those of a reclaiming seller. See, e.g., Stowers v. Mahon (In re Samuels & Co.), 526 F.2d 1238, 1242-1243 (5th Cir.), cert. denied, 429 U.S. 834, 97 S.Ct. 98, 50 L.Ed.2d 99 (1976); Lavonia Mfg. Co. v. Emery Corp., 52 B.R. 944, 946 (E.D.Pa.1985); In re Diversified Food Serv. Distribs., 130 B.R. 427, 429 (Bankr.S.D.N.Y.1991). See, also, 4 Collier on Bankruptcy, ¶ 546.04 at 546-20—546-21. Klondike attempts to avoid the limitation of Section 672.702(3) of the Florida Statutes arguing that a change in statutory language which predates this case removes Barclays from the ambit of Section 672.-702(3). Section 672.702(3) of the Florida Statutes formerly provided the reclaiming seller’s right of reclamation was subject not only to the rights of a buyer in ordinary course or other good faith purchaser but also to the rights of a lien creditor. Since “or lien creditor” has now been removed from Section 672.702(3) of the Florida Statutes, Klondike contends its right of reclamation is not subject to Barclays’ rights. Klondike’s contention is without merit. Despite the removal of “or lien creditor” from Section 672.702(3) of the Florida Statutes, Klondike’s right of reclamation remains subject to Barclays’ rights because Barclays, as stated above, qualifies as a good faith purchaser. Section 672.702(3) of the Florida Statutes, however, does not extinguish Klondike’s right of reclamation but merely makes that right “subject to” Barclays’ perfected preexisting lien. Neither party has cited, nor has this Court found, any Florida cases interpreting Section 672.-702(3). There are, however, non-Florida cases interpreting the precise section of the Uniform Commercial Code (§ 2-702(3)) now before the Court. “ ‘[Sjubject to’ ... means the right is subordinate or inferior to the security interest ...” Pester Ref. Co. v. Ethyl Corp. (In re Pester Ref. Co.), 964 F.2d 842, 846 (8th Cir.1992). Section 672.702(3) of the Florida Statutes has the effect of placing Klondike’s rights behind, or subject" }, { "docid": "6388677", "title": "", "text": "2-106 explains, “the rights of the parties do not vary according to whether the transaction is a present sale or a contract to sell unless the Article expressly so provides.” Under Ala.Code § 7 — 2-103(l)(d), a seller is defined as “a person who sells or contracts to sell goods.” Kodak’s role in this transaction falls within this definition. Thus, Eastman Kodak as a seller of the goods sought to reserve title to the goods until such time as they underwent the silver salvaging process. UCC § 2-401 speaks directly to an effort by a seller to reserve title to goods: (1) Title to goods cannot pass under a contract for sale prior to their identification to the contract (section 7-2-501), and unless otherwise explicitly agreed the buyer acquires by their identification a special property as limited by this title. Any retention or reservation by the seller of the title (property) in goods shipped or delivered to the buyer is limited in effect to a reservation of a security interest. Ala.Code § 7-2-401(1) (emphasis added). Therefore, under the logically related provisions of the Code, Kodak as a seller had only a security interest in the goods which it admittedly failed to perfect. Because the majority has decided to view this contract as a bailment-sale hybrid transaction, my brothers chose to apply Ala. Code § 7-2-403(2) to this case. However, since I consider this transaction to be an Article 2 contract for sale, I submit that instead we should apply subsection (1) of § 2-403 to this case. Ala.Code § 7-2 — 403 provides in pertinent part: (1) A purchaser of goods acquires all title which his transferor had or had power to transfer except that a purchaser of a limited interest acquires rights only to the extent of the interest purchased. A person with voidable title has power to transfer a good title to a good faith purchaser for value. When goods have been delivered under a transaction of purchase the purchaser has such power even though: (a) The transferor was deceived as to the identity of the purchaser, or" }, { "docid": "23419570", "title": "", "text": "proposition that any receipt of goods on credit by an insolvent buyer amounts to a tacit business misrepresentation of solvency and therefore is fraudulent. However, recognizing that the seller by delivering has vested the buyer with apparent authority to deal with the goods, the UCC also made the seller’s reclamation right “subject to” the rights of good faith purchasers from the buyer: (3) The seller’s right to reclaim under subsection (2) is subject to the rights of a buyer in ordinary course or other good faith purchaser under this article (Section 84-2-403). Successful reclamation of goods excludes all other remedies with respect to them. Kan.Stat.Ann. § 84-2-702(3). Since most secured creditors are good faith purchasers under the UCC, § 84-2-702 has the effect, in priority terms, of placing the reclaiming seller behind the insolvent buyer’s secured creditors who have security interests in the goods, but ahead of the buyer’s general unsecured creditors. See Iola State Bank v. Bolan, 235 Kan. 175, 679 P.2d 720, 726-28 (1984), following Matter of Samuels & Co., 526 F.2d 1238 (5th Cir.), cert. denied, 429 U.S. 834, 97 S.Ct. 98, 50 L.Ed.2d 99 (1976). This prioritizing is consistent with the historic roots of the reclamation remedy. The UCC’s reclamation provisions raised many questions under the pre-Code bankruptcy laws, spawning nearly two decades of litigation between trustees and reclaiming sellers. Congress responded with § 546(c) of the Code: (c) ... [T]he rights and powers of a trustee under sections 544(a), 545, 547, and 549 of this title are subject to any statutory or common-law right of a seller of goods that has sold goods to the debt- or, in the ordinary course of such seller’s business, to reclaim such goods if the debtor has received such goods while insolvent, but (1) such a seller may not reclaim any such goods unless such seller demands in writing reclamation of such goods before ten days after receipt of such goods by the debtor; and (2) the court may deny reclamation to a seller with such a right of reclamation that has made such a demand only if the" }, { "docid": "11569702", "title": "", "text": "2-403. NYUCC at § 2-702(3). Since it is clear that Marine is a purchaser for value within the meaning of the Code, and the NYUCC, see Code §§ 101(37), (50); NYUCC, supra, at §§ 1-201(32), (33), (44)(b), its superior status turns on the issue of good faith. See id. at § 1-201(19); Shell Oil Co. v. Mills Oil Co., Inc., 717 F.2d 208, 211-212 (5th Cir.1983). LIC bears the burden of proving Marine’s lack of good faith. See In re Coast Trad ing Co., Inc., supra, 744 F.2d at 690; In re FCX, Inc., supra, 62 B.R. at 322. There is no evidence before the Court that Marine did not act in good faith in its dealing with the Debtor. Accordingly, the Court holds that Marine is a good faith purchaser under NYUCC § 2-702 and its floating lien on the Debtor’s now owned or after-acquired inventory is superior to LIC’s right of reclamation under code § 546(c). See In re FCX, Inc., supra, 62 B.R. at 318, 319 (and cases cited therein). See also Stowers v. Mahon (In re Samuels & Co., Inc.), 526 F.2d 1238 (5th Cir.), cert. denied, 429 U.S. 834, 97 S.Ct. 98, 50 L.Ed.2d 99 (1976); Lavonia Mfg. Co. v. Emery Corp. (In re Lavonia Mfg. Co.), 52 B.R. 944, 946 (E.D.Pa.1985); Bojalad & Co. v. Holiday Meat Packing Co. (In re Holiday Meat Packing Co.), 30 B.R. 737, 740-741 (Bankr.W.D.Pa.1983); Petroleum Specialties, Inc. v. McLouth Steel Corp. (In re McLouth Steel Corp.), 22 B.R. 722, 724 (Bankr.E.D.Mich.1982); Western Farmers Ass’n. v. Giba Geigy (In re Western Farmers Ass’n), 6 B.R. 432, 433-434 (Bankr.W.D.Wash.1980); 4 COLLIER ON BANKRUPTCY, supra, ¶ 546.04 at 564.18. None of the parties take issue with LIC’s compliance with Code § 546(c) or that the goods sought to be reclaimed were in the Debtor’s possession at the time of the demand. Hence, the Court finds that the disputed goods were sold in LIC’s ordinary course of business to the Debtor who was insolvent within the meaning of Code § 101(31)(A) when it received, or took physical possession of them, see NYUCC," }, { "docid": "18512807", "title": "", "text": "11 3. The right of reclamation is also subject to the special protection given to a buyer in the ordinary course, or other good faith purchaser, under § 2-403 of the UCC. Section 2-403(1) states that: A purchaser of goods acquires all title which his transferor had or had power to transfer except that a purchaser of a limited interest acquires rights only to the extent of the interest purchased. A person with voidable title has power to transfer a good title to a good faith purchaser for value. When goods have been delivered through a transaction of purchase the purchaser has such power even though (a) the transferror was . deceived as to the identity of the purchaser, or (b) the delivery was in exchange for a check which is later dishonored, or (c) it was agreed that the sale was to be a cash sale, or (d) the delivery was procured through fraud punishable as larcenous under criminal law. Ill.Rev.Stat. ch. 26, 112-403 (1989). Under this provision, a good faith purchaser for value is given good title which takes priority over the ownership rights of other par ties. Section 2-702 expressly provides that reclamation is subject to the intervening rights of such a good faith purchaser so that the seller is left with only such other non-possessory remedies as are provided for in the UCC. Assuming, therefore, that a secured creditor holding a pre-existing security interest in all of the buyer’s after-acquired property constitutes a good faith purchaser, the seller’s right of reclamation is subject to and extinguished by that right. There is simply no other interpretation of these provisions which is consistent with the overall scheme of the UCC and the intended role of the seller’s right of reclamation within that scheme. Reclamation is in the nature of an in rem property right and if it cannot be exercised due to the superior title vested in a good faith purchaser, then it must necessarily be extinguished. It cannot be preserved and asserted in some later proceeding against general unsecured creditors. Such treatment is consistent with the overall" }, { "docid": "1149654", "title": "", "text": "reclamation. Therefore, the powers of the Court are limited to the entry of a monetary judgment, the granting of a lien on the debtor’s assets, or the granting of an administrative priority. The Spokane Bank for Cooperatives contends that its security interest in all the debtor’s assets, with its after-acquired property provision (which includes the goods delivered by defendants) cuts off any right to reclaim. On the other hand, the reclaimants assert that they are innocent parties who were not involved in the financing between the Bank and the debtor, that the debtor, defrauded them, that the debtor should not be permitted to finance its Chapter 11 at their expense, that the debtor’s financial situation is such that any administrative priority could turn out to be worthless, and that to deny them immediate payment or a first lien on the debtor’s assets would be grossly unfair. As a matter of equity, the arguments of the reclaimants are well taken and compelling. However, equitable considerations do not prevail in this instance. The legislative history of Section 546(c) states that, “the right [to reclaim] is subject to any superior rights of other creditors”. This rather general statement has been specifically applied in several cases factually similar to the one at issue. In Stowers v. Mahon, 526 F.2d 1238 (5th Cir. 1976); cert. den. 429 U.S. 834, 97 S.Ct. 98, 50 L.Ed.2d 99 (1976), the court considered reclamation claims by unpaid cash sellers of cattle in. bankruptcy proceedings. In a lengthy and complex Circuit Court panel dissent, adopted by the Fifth Circuit, the court concluded that the claims of these sellers were subordinate to those of the debtor’s secured lender (who had an after-acquired property clause). The court looked to Uniform Commercial Code Sections 2-403 and 2-507 as well as 2-702 to reach its decision that: “... under this provision [§ 2-403] the rights of an aggrieved cash seller are subordinated to those of the buyer’s good-faith purchasers, including Article Nine lenders ...” 526 F.2d at 1244. The same decision was reached in a Ninth Circuit opinion citing Stowers, Los Angeles Paper Bag" }, { "docid": "1149655", "title": "", "text": "546(c) states that, “the right [to reclaim] is subject to any superior rights of other creditors”. This rather general statement has been specifically applied in several cases factually similar to the one at issue. In Stowers v. Mahon, 526 F.2d 1238 (5th Cir. 1976); cert. den. 429 U.S. 834, 97 S.Ct. 98, 50 L.Ed.2d 99 (1976), the court considered reclamation claims by unpaid cash sellers of cattle in. bankruptcy proceedings. In a lengthy and complex Circuit Court panel dissent, adopted by the Fifth Circuit, the court concluded that the claims of these sellers were subordinate to those of the debtor’s secured lender (who had an after-acquired property clause). The court looked to Uniform Commercial Code Sections 2-403 and 2-507 as well as 2-702 to reach its decision that: “... under this provision [§ 2-403] the rights of an aggrieved cash seller are subordinated to those of the buyer’s good-faith purchasers, including Article Nine lenders ...” 526 F.2d at 1244. The same decision was reached in a Ninth Circuit opinion citing Stowers, Los Angeles Paper Bag Co. v. James Talcott, Inc., 604 F.2d 38 (9th Cir. 1979). The same conclusion has also been reached in cases involving credit sellers. In In re Bowman, 25 UCC Rept.Srv. 738 (U.S.D.C., N.D.Ga.1978), the court again held that the debtor, even though a defaulting buyer, could pass title to a good faith purchaser, UCC § 403. Moreover, under UCC § 1-201(32) a secured creditor is a good faith purchaser and should therefore prevail over the reclaimants. See also, Kennett-Murray & Co. v. Pawnee National Bank, 598 P.2d 274 (Okla.1979). I therefore find and conclude that these cases are in point and controlling. Counsel for defendant, Shaffer-Haggart, Inc., have cited In re American Food Purveyors, Inc., 17 UCC Rept.Srv. 436 (U.S.D.C., N.D.Ga.1974) as a case holding for the reclaimants. However, in that opinion the court felt that it had equitable reasons for concluding that the secured lender was not a good faith purchaser. Moreover, American Food is the only opinion cited for this proposition and therefore I conclude that it is contrary to the great weight" }, { "docid": "5239411", "title": "", "text": "and in “good faith.” Under the Uniform Commercial Code the term “purchaser” is defined to include a secured party. Miss.Code Ann. § 75-1-201(32), (33) (1972). Shell conceded that the bank held a perfected security interest in Mills Oil Company’s inventory. A secured party gives “value” when it takes an after-acquired interest in exchange for a previous loan. Miss.Code Ann. § 75-1-201(44) (1972). The bank’s security interest contained an after-acquired property clause, which included Mills Oil Company’s inventory. Therefore, the issue narrows to whether Citizens Bank acted in good faith. This case is before us on motions for summary judgment. Summary judgment is appropriately granted when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). Shell contends that because the bank knew that Shell had not been paid for the products and supplies purchased by Mills Oil Company, the bank did not act in good faith when it disposed of Mills Oil Company’s inventory. The good faith of the bank is obviously a material fact. What we must determine is whether the bank’s knowledge of Shell’s position as an unpaid seller raises a genuine issue as to its good faith. In In re Samuels & Co., 526 F.2d 1238 (5th Cir.) (en banc), cert. denied, 429 U.S. 834, 97 S.Ct. 98, 50 L.Ed.2d 99 (1976), C.I.T. loaned Samuels & Co. money to purchase cattle. C.I.T. secured its loan by perfecting a security interest in Samuels’ after-acquired inventory, which consisted of its cattle. Samuels’ checks to its sellers were dishonored when C.I.T., after deeming itself insecure, refused to advance Samuels’ approximately $184,000. Samuels then filed bankruptcy. Samuels’ sellers had conveyed cattle to Samuels immediately prior to the filing of the bankruptcy petition. The petition left these sellers unpaid. The court noted that neither the referee in bankruptcy nor the district court found that “C.I.T.’s knowledge of Samuels’ business extended to knowledge of the debtor’s obligations to third party creditors.” Id. at 1243. The en banc court in dicta stated that even if C.I.T. knew that" }, { "docid": "5239412", "title": "", "text": "bank is obviously a material fact. What we must determine is whether the bank’s knowledge of Shell’s position as an unpaid seller raises a genuine issue as to its good faith. In In re Samuels & Co., 526 F.2d 1238 (5th Cir.) (en banc), cert. denied, 429 U.S. 834, 97 S.Ct. 98, 50 L.Ed.2d 99 (1976), C.I.T. loaned Samuels & Co. money to purchase cattle. C.I.T. secured its loan by perfecting a security interest in Samuels’ after-acquired inventory, which consisted of its cattle. Samuels’ checks to its sellers were dishonored when C.I.T., after deeming itself insecure, refused to advance Samuels’ approximately $184,000. Samuels then filed bankruptcy. Samuels’ sellers had conveyed cattle to Samuels immediately prior to the filing of the bankruptcy petition. The petition left these sellers unpaid. The court noted that neither the referee in bankruptcy nor the district court found that “C.I.T.’s knowledge of Samuels’ business extended to knowledge of the debtor’s obligations to third party creditors.” Id. at 1243. The en banc court in dicta stated that even if C.I.T. knew that Samuels’ sellers were unpaid, C.I.T.’s good faith would be “unaffected.” Id. Although noting that the common law required lack of knowledge to achieve bona fide purchaser status, and that this requirement is carried forward in certain Code sections, the court concluded that “the Code’s definition of an Article Two good faith purchaser does not expressly or impliedly include lack of knowledge of third-party claims as an element.” Id. at 1243-44. C.I.T.’s decision to halt funding was determined to be clearly reasonable. Id. at 1244. The Code definition of good faith is “honesty in fact.” E.g., Miss.Code Ann. § 75-1-201(19) (1972). Samuels & Co. noted that this concept “hardly requires a secured party to continue financing a doomed business enterprise.” The authorities Shell cites as support for its contention that a party with knowledge that goods are unpaid lacks good faith are distinguishable. In Blackhawk Pontiac Sales, Inc. v. Orr, 84 Ill.App.3d 456, 39 Ill.Dec. 746, 405 N.E.2d 499 (1980), Orr, an unlicensed used car dealer, bought six cars from Futrell, a licensed dealer. The checks" }, { "docid": "6508383", "title": "", "text": "§ 1-201 and gives “value,” as defined in U.C.C. § 1-201(44), acquires greater rights than the party transferring the goods to it had. Therefore, U.C.C. § 2-403 gives a transferor, even one who has acquired goods wrongfully, the power to transfer the goods “to a Code-defined ‘good faith purchaser.’ ” Samuels & Co., 526 F.2d at 1242. Thus, in the instant case, if CIT qualifies as a good faith purchaser pursuant to U.C.C. § 1-201 and gave value pursuant to U.C.C. § 1-201(44), then pursuant to U.C.C. § 2—403, even if Arley had voidable title to the goods, it could transfer good title under Article 2 to CIT. Further, if CIT obtained the goods in this manner, the demand of a reclaiming seller is subject to CIT’s interest. U.C.C. § 2-702(3). Galey cites to American Food Purveyors, Inc., 17 U.C.C.Rep.Serv. at 441, which found that only Article 2 “purchasers” were meant to be protected by the Georgia Code equivalent of U.C.C. § 2-702(3), and that the section was not “designed to protect Article 9 secured creditors.” The court, however, did note that it was aware that “the definition of a purchaser is broad enough to include an Article 9 secured creditor.” Id. The American Food Purveyors court may also have been influenced by its perception that because of the buyer’s fraud, it essentially held the goods in trust for a reclaiming seller during the relevant reclamation period. Id. at 443. However, nothing in U.C.C. § 2-702 references the funds being held in trust for the reclaiming seller. Moreover, the American Food Purveyors court adopted the reasoning set out in Johnston & Murphy Shoes, Inc. v. Meinhard Commercial Corp. (In re Mel Golde Shoes, Inc.), 403 F.2d 658, 659-60 (6th Cir.1968). However, the dispute in the Mel Golde court involved the relative priority between the claim of a reclaiming seller and that of an attachment lien creditor. In analyzing the relative rights of these parties, the Mel Golde court first reviewed the relevant U.C.C. section of the Kentucky statute and noted that U.C.C. § 2-702(3) refers one to U.C.C. § 2403" }, { "docid": "16767582", "title": "", "text": "disguised statutory lien or preference. Although the Bankruptcy Code specifically authorizes an unpaid seller to reclaim merchandise under express limitations delineated in 11 U.S.C. § 546(c), that right may not be asserted to defeat the interests of previously perfected inventory lien creditors. The right of reclamation from a breaching buyer is subordinate to those of previously perfected lien creditors, who are regarded in the same fashion as good faith purchasers whose rights are also superior to those of reclaiming sellers. Collingwood Grain, Inc. v. Coast Trading Company (In re Coast Trading Co., Inc.), 744 F.2d 686 (9th Cir.1984); Stowers v. Mahon (In re Samuels & Co., Inc.), 526 F.2d 1238 (5th Cir.1976) (en banc), cert. denied, 429 U.S. 834, 97 S.Ct. 98, 50 L.Ed.2d 99 (1976); In re Roberts Hardware Co., 103 B.R. 396 (Bankr.N.D.N.Y.1988). Indeed, the reclaiming sellers’ demand for the proceeds of the auction sale, to the extent of their unpaid bills, is not consistent with the reclamation right authorized under 11 U.S.C. § 546(c) and U.C.C. § 2-702. As stated by Judge Anthony M. Kennedy (now Mr. Justice Kennedy): Section 2-702 speaks only of reclaiming goods not of reclaiming proceeds. Section 2-702, therefore, does not in and of itself create a right to reclaim the proceeds of the resale of the goods. In re Coast Trading Co., Inc., 744 F.2d at 691. Because the reclaiming sellers have satisfied the prerequisites of 11 U.S.C. § 546(c), but are prevented from enforcing their reclamation rights against CIT’s superior status, they are entitled to an administrative expense priority claim in accordance with 11 U.S.C. § 546(c)(2)(A) which: (A) grants the claim of such a seller priority as a claim specified in Section 503 of this title 11 U.S.C. § 546(c)(2)(A). See In re Roberts Hardware Co., 103 B.R. at 399; In re AIC Photo, Inc., 57 B.R. 56, 60 (Bankr.E.D.N.Y.1985). An administrative expense claim under 11 U.S.C. § 503(b) is accorded a first priority status pursuant to 11 U.S.C. § 507(a)(1). CONCLUSIONS OF LAW 1. This court has jurisdiction of the subject matter and the parties pursuant to 28 U.S.C." }, { "docid": "7930635", "title": "", "text": "that it included the goods Bindley had delivered. What happens when a reclamation claimant and a secured creditor seek to satisfy debts from the same assets? Section 2-702(3) of the UCC provides that the “seller’s right to reclaim ... is subject to the rights of a buyer in ordinary course or other good faith purchaser under this Article (Section 2-403).” (Indiana’s version of the UCC substitutes “IC 26-1-2-403” for “this Article (Section 2-403)”; meaning is unaffected.) Is the holder of a security interest in inventory “a buyer in ordinary course or other good faith purchaser under this Article (Section 2-403)”? Security interests come under Article 9, not “this Article (Section 2-403).” Several courts have held, or assumed, that a security interest beats a reclamation claim, on the ground that the security interest equates to the rights of a good faith purchaser under UCC § 1-201(32) and (33). See In re Pester Refining Co., 964 F.2d 842, 844-45 (8th Cir.1992); In re Samuels & Co., 526 F.2d 1238 (5th Cir.1976) (en banc). Legal scholars are not so sure, observing that § 2-702(2) gives a vendor the rights of a purchase-money secu rity holder for 10 days, and the purchase-money lender undoubtedly beats a creditor with a security interest in after-acquired inventory. Compare Douglas G. Baird & Thomas H. Jackson, Possession and Ownership: An Examination of the Scope of Article 9, 35 Stan.L.Rev. 175, 206-09 (1983) (page 207 n. 91 collects many earlier articles on the subject), with Thomas A. Jackson & Ellen Ash Peters, Quest for Uncertainty: A Proposal for Flexible Resolution of Inherent Conflicts Between Article 2 and Article 9 of the Uniform Commercial Code, 87 Yale L.J. 907, 966-69 (1978). This thicket is one we need not enter, because Bindley concedes that a reclamation claimant stands in line after a creditor with a security interest in after-acquired inventory. One would suppose that Bindley’s concession ends the case; Bindley insists that it is entitled to prevail nonetheless. When the shortfall in Reliable’s assets became clear, the bankruptcy judge concluded that Bindley did not have a “valid” reclamation claim. Then the" } ]

[ { "docid": "16191881", "title": "", "text": "Instead, he asserts that the Government’s version of events lacks support in the record, and therefore, he is entitled to an evidentiary hearing. (The Def.’s Reply Ltr., Dkt. No. 25, at 1-2.) If Officer Stickley was provided with information from two witnesses that allegedly saw the Defendant pistol-whip a gang member and brandish his gun, the U.S. Probation Officers clearly had at least “reasonable suspicion” to believe that the Defendant possessed a firearm. That is because courts have routinely found specific information received by probation officers from confidential informants and eyewitnesses provides reasonable suspicion to justify a search. See, e.g., United States v. Townsend, 371 Fed.Appx. 122, 125 (2d Cir.2010) (Summary Order) (“Mercado’s probation officer received specific information from law enforcement officials working on an ongoing investigation that suggested contraband might be found in Mercado’s home. The search did not violate Mercado’s Fourth Amendment rights, and his suppression motion was properly denied.”); United States v. Chirino, 483 F.3d 141, 148 (2d Cir.2007) (finding that probation officers had reasonable suspicion to search a probationers residence because the officers “had information originating from a reliable informant that Bonilla, a 14-year-old-girl for whom a PINS warrant was outstanding, had been seen virtually every day for the past several days in the company of members of MS-13; that she had been sexually abused by numerous members of that gang; that a few days earlier, Bonilla had been seen with Chirino; and that Bonilla was perhaps being held against her will.”); United States v. Washington, No. 12 CR 146 (JPO), 2012 WL 5438909, at *9 (S.D.N.Y. Nov. 7, 2012) (finding that probation officers had reasonable suspicion to conduct a warrantless search of a supervisee’s home based on the fact that the probation officers possessed information from an FBI Agent that the defendant “had been caught on a wiretap discussing his role as a supplier of narcotics in a larger narcotics conspiracy.”). However, as the Defendant correctly points out, there are no allegations in the charging documents or in the record, such as affidavits by the officers who conducted the search, supporting the Government’s assertions that" } ]

[ { "docid": "3664916", "title": "", "text": "justify the custodial detention.” The Fourth Amendment allows law enforcement officers to “conduct a brief investigative stop when they have reasonable, articulable suspicion that a person is committing or is about to commit a crime.” United States v. Horton, 611 F.3d 936, 940 (8th Cir.2010). “This standard requires that officers be able to point to specific, articulable facts justifying the seizure.” Id. “The existence of reasonable, articulable suspicion is determined by the totality of the circumstances, taking into account an officer’s deductions and rational inferences resulting from relevant training and experience.” Id. (citing United States v. Arvizu, 534 U.S. 266, 273-74, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002)). Furthermore, “an officer may temporarily detain an individual during a Terry stop ‘to determine the suspect’s identity or to maintain the status quo while obtaining more information.’ ” Id. at 941 (quoting United States v. Hernandez-Hernandez, 327 F.3d 703, 706 (8th Cir.2003)). When Bearden arrived on White’s property, officers were in the process of requesting a search warrant for the property, which they believed was being used to cultivate marijuana. Bearden arrived from the back of the property, where officers suspected the marijuana operation was located. Bearden smelled strongly of moth balls and had a large Bowie knife hanging on his belt. See United States v. Lego, 855 F.2d 542, 545 (8th Cir.1988) (upholding justification for continued detention based on knife officer found and removed from case on defendant’s belt). During a routine pat down search, TFO Tiller discovered a suspicious note regarding fertilizer, indicating Bearden might be involved in the suspected grow operation. He also told the officers that he was returning a vehicle belonging to White, his landlord, and that he lived next door, which directly contradicted White’s statement to officers that he did not know his neighbors. Bearden does not contest these facts on appeal. The district court properly concluded that the officers had a reasonable, articulable suspicion that Bear-den was involved in criminal activity, and his detention was justified. Bearden further contests the district court’s conclusion that he freely consented to the search of his home. “The government" }, { "docid": "16191882", "title": "", "text": "the officers “had information originating from a reliable informant that Bonilla, a 14-year-old-girl for whom a PINS warrant was outstanding, had been seen virtually every day for the past several days in the company of members of MS-13; that she had been sexually abused by numerous members of that gang; that a few days earlier, Bonilla had been seen with Chirino; and that Bonilla was perhaps being held against her will.”); United States v. Washington, No. 12 CR 146 (JPO), 2012 WL 5438909, at *9 (S.D.N.Y. Nov. 7, 2012) (finding that probation officers had reasonable suspicion to conduct a warrantless search of a supervisee’s home based on the fact that the probation officers possessed information from an FBI Agent that the defendant “had been caught on a wiretap discussing his role as a supplier of narcotics in a larger narcotics conspiracy.”). However, as the Defendant correctly points out, there are no allegations in the charging documents or in the record, such as affidavits by the officers who conducted the search, supporting the Government’s assertions that Officer Stickley had this information prior to the January 13, 2015 search of the Defendant’s alleged residence. Indeed, the pre-search briefing prepared by the E.D.N.Y. Search Enforcement Team makes no mention of Officer Stickley, nor any incident prior to the search. (See Keating Aff., Ex. D.). Thus, to credit the Government’s version of events leading up the January 13, 2015, the Court would have to rely entirely on the assertions made in its letter in opposition to the Defendant’s motion. Cf. United States v. Rivera, No. 3:07CR285EBB, 2008 WL 2229917, at *8 (D.Conn. May 28, 2008) (“The Court has relied only on facts drawn from the law enforcement reports attached to Rivera’s Memorandum and has not relied on facts set out in the government’s papers. Therefore, these belatedly manufactured factual disputes are immaterial.”). On the other hand, in support of his assertion that the Government lacked reasonable suspicion, the Defendant offers (i) his own affidavit, which does not dispute the incidents referenced in the Government’s papers; and (ii) the affidavit of Keating, his counsel, which" }, { "docid": "16660666", "title": "", "text": "to support a ... search.” 483 U.S. at 879-80, 107 S.Ct. 3164 (emphasis added and footnote omitted). Indeed, the circumstances of Griffin are similar to those presented here: there, a probation officer received information from the police department that “there were or might be guns in [the probationer’s] apartment.” Id. at 871, 107 S.Ct. 3164. A search of the probationer’s home was conducted on the basis of this unadorned information, and contraband was found. Id. We need not, at this juncture, specify whether the “reasonable belief’ standard imposed by the search condition of Mercado’s supervised release is equivalent to the “reasonable grounds” condition at issue in Griffin, id., because the information received by Mercado’s parole officer was more detailed and specific than the information received by the parole officer there. In this case, both the Bronx District Attorney’s office and the New York Police Department confirmed that Mercado was a person of interest in an ongoing investigation of an unsolved robbery and homicide. A Bronx Assistant District Attorney provided Mercado’s parole officer with details about the crime that she had learned from a confidential witness, including that the perpetrators “waited in bushes outside the house of [a] drug dealer, and when the drug dealer came home, the other individual, not Mr. Mercado, shot the victim twice, killing him, and two duffel bags of marijuana were stolen at that time.” Supp.App. 24. Even assuming, for the sake of argument, that a “reasonable belief” standard is close to the “reasonable suspicion” standard that applies in the Terry context, this case is a far cry from the anonymous phone call to the police that the Supreme Court found inadequate to establish a “reasonable suspicion” in Florida v. J.L., 529 U.S. 266, 268, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000). Mercado’s probation officer received specific information from law enforcement officials working on an ongoing investigation that suggested contraband might be found in Mercado’s home. The search did not violate Mercado’s Fourth Amendment lights, and his suppression motion was properly denied. Mercado next argues that the evidence did not support the district court’s finding that" }, { "docid": "288567", "title": "", "text": "For the walk-through and dog sniff, the district court applied a reasonable suspicion standard and found that both searches met it. The court relied on United States v. Knights, 534 U.S. 112, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001), which upheld as reasonable a warrantless search of a probationer’s home when officers had reasonable suspicion and the probationer had agreed to a probation condition allowing warrant-less home searches. The court reasoned that, like in Knights, Barker’s supervision condition allowing his probation officer to visit him at home at any time diminished his expectation of privacy to the point where officers needed only reasonable suspicion, not a warrant, for the walk-through and dog sniff. The district court also applied United States v. Karo, 468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984), to conclude that sufficient untainted evidence established probable cause to support the search warrant, even if the walk-through and dog sniff were illegal and their results were excised from the warrant application. The defendants entered conditional guilty pleas to aiding and abetting possession with intent to distribute heroin and preserved the right to appeal the denial of their suppression motions. The district court sentenced Barker to 151 months in prison, Dunigan to 18 months, and Hill to 27 months. The court also imposed three years’ supervised release on each of them. Special Condition of Supervision No. 6 will require the defendants to submit to war-rantless searches of their persons, property, residences, or vehicles based on a probation officer’s reasonable suspicion. II. A. When considering a motion to suppress, we review de novo the district court’s legal conclusions. United States v. Williams, 740 F.3d 308, 311 (4th Cir.2014). In its brief, the government frames its arguments in terms of clear error, which we use to evaluate the district court’s factual findings. Id. But because the parties do not dispute the facts, de novo review is proper. B. The defendants contend that once the protective sweep of the apartment had ended, the officers needed a warrant to go any further. The government responds that the defendants’ supervised release status, including" }, { "docid": "8971238", "title": "", "text": "v. Kelly, 913 F.2d 261, 264 (6th Cir.1990). In Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), the Supreme Court held that these safety concerns, in the context of roadside encounters, justify the search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, if the police officer possesses a reasonable belief based on specific and articuable facts that the suspect is dangerous and may gain immediate control of the weapons. Long, 463 U.S. at 1049, 103 S.Ct. at 3480. In this case, we find that the officers acted reasonably in searching the cooler for weapons. First, the officers had prior information that Carlos Paulino carried an Uzi gun, and had reasonable suspicion to believe that the driver of the vehicle was in fact Carlos Paulino. See United States v. Hardnett, 804 F.2d 353, 356 (6th Cir.1986) (informant’s tip is sufficient to establish reasonable suspicion), cert. denied, 479 U.S. 1097, 107 S.Ct. 1318, 94 L.Ed.2d 171 (1987). Second, the cooler was in the passenger area of the vehicle where the defendants had ready access to it and could have easily concealed a weapon. The number of officers on the scene, even when coupled with the fact that the cooler and the defendants were outside the vehicle, did not obviate the need for a protective search of the vehicle and its contents. Thus, we find that the search of the cooler was justified as a protective search under Long. B. In the alternative, the government argues that the search at issue was justified as a probable cause search. A search of a vehicle for contraband as opposed to a weapon cannot be justified under Terry. See Long, 463 U.S. at 1049 n. 14, 103 S.Ct. at 3481 n. 14; United States v. Barrett, 890 F.2d 855, 862 (6th Cir.1989). It is well settled, however, that a warrant-less search of a vehicle lawfully stopped by the police does not violate the fourth amendment if the officers have probable cause to believe the vehicle contains contraband. Carroll v." }, { "docid": "10914679", "title": "", "text": "to stop. Id. We held that the “collocation of circumstances plainly satisfied the reasonable suspicion standard for an initial Terry stop.” Id. at 31. As in Lee, the circumstances surrounding the present defendants’ actions at Bull Moose and in the Toys “R” Us parking lot justified Officer Gerrish’s stop. The district court correctly concluded that the stop was supported by reasonable articulable suspicion. 2. The Vehicle Search The defendants next challenge the district court’s determination that the war-rantless search of the vehicle, from the drug-detection dog’s entrance into the vehicle through the search of the locked glove box, did not violate the Fourth Amendment. The district court took the view that the defendants’ consent, as well as the automobile exception to the Fourth Amendment’s warrant requirement, brought that search within constitutional bounds. In examining this question, we are confronted at the beginning of our analysis by an important threshold question. The defendants base their challenge to the search of the automobile on their status as passengers in that automobile. Following the decision of the Supreme Court in Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), we have held squarely that passengers in an automobile who assert no property or possessory interest in a vehicle cannot be said to have the requisite expectation of privacy in the vehicle to permit them to maintain that the search did not meet Fourth Amendment standards. United States v. Symonevich, 688 F.3d 12, 19, 21 (1st Cir.2012). Mr. Campbell never has claimed a possessory interest in the vehicle. In his motion to suppress and at the hearing on that motion, Mr. Porteous asserted, forcefully, that he did not lease the car. To put it mildly, in taking those positions, neither defendant has carried his burden to establish a reasonable expectation of privacy in the vehicle. See United States v. Lipscomb, 539 F.3d 32, 35-36 (1st Cir.2008) (“Before reaching the merits of a suppression challenge, the defendant carries the burden of establishing that he had a reasonable expectation of privacy with respect to the area searched....”); id. at 36 (holding that" }, { "docid": "1900175", "title": "", "text": "random drug testing and could search him, his property, his residence or a place he may be living based on reasonable suspicion rather than the more protective probable cause standard. Although Graham’s probation order did further inform him that police would go through the formal process of obtaining a search warrant before executing a search, that the officers failed to do so does not merit suppression considering the important governmental interests at stake and Graham’s inherently diminished expectation of privacy. Put plainly, we cannot say that where, as here, the police possess reasonable suspicion that a probationer is violating the terms of probation, the Fourth Amendment demands that the police secure a search warrant before executing a probation search. See Moore, 128 S.Ct. at 1606 (“A state is free to prefer one search-and-seizure police among the range of constitutionally permissible options, but its choice of a more restrictive option does not render the less restrictive ones unreasonable, and hence unconstitutional.”); see also Lo-velock, 170 F.3d at 343-44 (“What a citizen is assured by the Fourth Amendment ... is not that no government search ... will occur in the absence of a warrant or an applicable exception to the warrant requirement, but that no such search will occur that is ‘unreasonable’ ”) (citing Illinois v. Rodriguez, 497 U.S. 177, 183, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990) (some internal quotations omitted)); Chirino, 483 F.3d at 149-50 (holding that probation search did not violate Fourth Amendment even though the search was conducted without prior court authorization as required under state law). Because we conclude that the evidence was obtained pursuant a valid probation search, we need not reach the government’s search incident to arrest argument. III. Conclusion For the reasons provided above, the district court’s ruling is affirmed. AFFIRMED. . Although a search incident to arrest is an established exception to the warrant requirement, state prosecutors did not argue that the evidence was seized as a result of a search incident to arrest. . Probation, parole and supervised release are forms of conditional release. United States v. Weikert, 504 F.3d 1, 7" }, { "docid": "16191873", "title": "", "text": "United States v. Grant, No. 06 CR 732 (DLI), 2008 WL 111169, at *1 (E.D.N.Y. Jan. 8, 2008) (“However, even where the preliminary showing of facts requiring a hearing is weak, the court has discretion to determine whether to hold a suppression hearing.”); United States v. Shamsideen, No. 03 CR.1313(SCR), 2004 WL 1179305, at *9 (S.D.N.Y. Mar. 31, 2004) (“[I]t should be noted that District Courts have broad discretion when deciding whether or not to hold a suppression hearing.”). 2. The Reasonableness of the Search Although it is undisputed that the U.S. Probation and NYPD Officers entered the Defendant’s alleged residence without a warrant, the Government contends that the search was “reasonable” under the Fourth Amendment because (i) the Defen dant was on supervised release and therefore, had a lower expectation of privacy; and (ii) the U.S. Probation Officers had reasonable suspicion to suspect that the Defendant was in possession of a firearm. (The Gov’t Opp’n Ltr., Dkt. No. 15-cr-131, at 4-5.) For his part, the Defendant does not dispute that on January 13, 2015, at the time of the search, he was on supervised release and subject to a condition that he “submit his person, residence, vehicle or place of business to a search if the Probation Department ha[d] reasonable belief [that] contraband [was] present.” (See Keating Aff. at ¶¶ 11-13.) Rather, he contends that the discovery materials provided to him by the Government are “devoid of any indication that the Probation Department possessed reasonable suspicion to conduct the Probation search.” (The Def.’s Reply Ltr., Dkt. No. 25 (the “Def.’s Reply Ltr.”, at 1-2.) “ ‘Although the Fourth Amendment ordinarily requires the degree of probability embodied in the term ‘probable cause,’ a lesser degree satisfies the Constitution when the balance of governmental and private interests makes such a standard reasonable.’ ” United States v. Reyes, 283 F.3d 446, 462 (2d Cir.2002) (quoting United States v. Knights, 534 U.S. 112, 121, 122 S.Ct. 587, 592, 151 L.Ed.2d 497 (2001)). Courts have repeatedly held that enforcing the conditions of probation or supervised release is a weighty government interest that in certain" }, { "docid": "23582047", "title": "", "text": "expectation of privacy while seated in the patrol car. As to the stop, the court concluded: [P]ursuant to 47 O.S.Supp.2001, §§ 1113(A)(2) and 12-217, Trooper Ca-son lawfully stopped Defendants’ vehicle when he observed the vehicle’s fog lamps illuminated during daylight hours when no fog was present, and because he was unable to read the origin of the license plate as the vehicle passed his patrol unit. Accordingly, the initial stop of Defendants for traffic violations was consistent with the requirements of the Fourth Amendment. According to the district court, the subsequent detention and search were similarly reasonable under the circumstances because “the trooper acquired an objectively reasonable and articulable suspicion that the driver was engaged in criminal activi ty,” or in the alternative, Defendant Rodriguez consented to the search. II The law pertaining to routine traffic stops is well established. The Fourth Amendment proscribes unreasonable searches and seizures. U.S. Const, amend. IV. A traffic stop constitutes a Fourth Amendment seizure. See United States v. Taverna, 348 F.3d 873, 877 (10th Cir.2003) (citing Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979)). Because a routine traffic stop is more akin to an investigative detention than a custodial arrest, a traffic stop is reasonable if (1) the officer’s action was justified at its inception, and (2) the officer’s action was reasonably related in scope to the circumstances which justified the interference in the first place. See United States v. Botero-Ospina, 71 F.3d 783, 786 (10th Cir.1995) (en banc) (citing Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). To determine the initial validity of a traffic stop, we ask whether the stop was “objectively justified.” Botero-Ospina, 71 F.3d at 788. Generally, a routine stop is objectively justified when probable cause or reasonable articulable suspicion exists to believe a traffic violation has occurred. See Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) (probable cause); Botero-Ospina, 71 F.3d at 787 (reasonable articulable suspicion). The actual motivations or subjective beliefs and intentions of the officer are irrelevant. See" }, { "docid": "14444253", "title": "", "text": "(1972)). Thus, warrantless searches of probationers’ residences are permissible under the Fourth Amendment when they are authorized by a condition of probation and supported by reasonable suspicion of criminal activity. United States v. Knights, 534 U.S. 112, 121-22, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001). Even though officers only entered Mayer’s backyard during the probation search, the conditions of Mayer’s probation authorized a warrantless search of his entire residence. One condition of Mayer’s probation was that he “[p]ermit the probation officer to visit [him] or [his] work site or residence and to conduct a walk-through of the common areas and of the rooms in the residence occupied by or under[his] control.” Another condition was that he had to “[c]onsent to the search of person, vehicle or premises upon ... request ... if the supervising officer has reasonable grounds to believe that evidence of a violation will be found.” There is no doubt that the Parole and Probation officers had a “reasonable suspicion” of criminal activity. Parole and Probation officers received two phone calls— one from a neighbor and one from an anonymous source — in which the callers reported that Mayer was selling marijuana, and that he was in possession of a firearm. Before law enforcement officers may conduct a warrantless probation search, however, they must also have probable cause to believe that the probationer actually lives at the residence searched. See United States v. Howard, 447 F.3d 1257, 1262 (9th Cir.2006); Motley v. Parks, 432 F.3d 1072, 1079-80 (9th Cir.2005) (en banc). In Illinois v. Gates, 462 U.S. 213, 233-34, 243-46, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the Supreme Court held that probable cause may be established based on a tip from an anonymous informant if there are sufficient indicia of reliability. Such indicia include the informant’s history of providing accurate information on previous occasions, a detailed description of the alleged wrongdoing that the informant witnessed first-hand, the provision of details not easily obtained or predicted, or the police’s ability to corroborate the information. Id. The district court correctly determined that the officers had probable cause to believe" }, { "docid": "83695", "title": "", "text": "the back door of which was still open, and “noticed that there was a small drawer at the back of the center console all the way at the bottom which was partially open, just a small bit, maybe a quarter of an inch.” “[B]elieving that [Spinner] had stuck something there, [an officer] went directly to that area and did a limited search and just opened that drawer, and there was a handgun in the drawer.” The police then arrested Spinner. After Spinner was indicted for one count of being a felon in possession of a firearm, he moved to suppress the physical evidence found in his vehicle, arguing the police lacked a reasonable suspicion upon which either to detain him or to search his vehicle. The district court thought it a “very close case” but ultimately denied the motion. The court first held the stop was justified under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), because “a traffic violation is a legitimate reason to stop somebody.” The court then concluded the officers had a reasonable suspicion, arising from the totality of the circumstances — namely, Spinner’s “odd” explanation, his “furtive movements,” and his nervousness — to justify frisking Spinner and searching the truck. Spinner entered a conditional plea of guilty, preserving his right to appeal. The district court sentenced him to 33 months in prison to be followed by three years of supervised release. II. Analysis Spinner argues again on appeal that the physical evidence found in his vehicle should have been suppressed as the product of a search made in violation of the Fourth Amendment to the Constitution of the United States. We review de novo the district court’s determination that the police had a reasonable, articulable suspicion justifying the search. See United States v. Broadie, 452 F.3d 875, 879 (D.C.Cir.2006). A. The Stop Spinner argues first that the police did not have a reasonable, articulable suspicion that criminal activity was “afoot” when they stopped him. See Terry, 392 U.S. at 30, 88 S.Ct. 1868. The Government responds that under Whren v. United" }, { "docid": "11488352", "title": "", "text": "BALDOCK, Circuit Judge. On February 23,1993, Defendant Anthony Brian Lewis was paroled from Utah State Prison while serving a sentence for unlawful possession of crack cocaine. Defendant’s Parole Agreement authorized “a Parole Agent to search [his] person, residence, vehicle, or any other property under [his] control, without a warrant, any time day or night, upon reasonable suspicion as ascertained by a Parole Agent, to insure compliance with the conditions of [his] parole.” On October 13, 1993, parole agents, accompanied by Salt Lake City police officers, searched Defendant’s home without a warrant after receiving a confidential informant’s tip to the police that Defendant might be selling crack cocaine. The agents’ search uncovered approximately five grams of crack cocaine. Defendant pled guilty to a one count information charging him with possession of crack cocaine in violation of 21 U.S.C. § 844(a). Defendant, however, reserved his right under Fed.R.Crim.P. 11(a)(2) to appeal the district court’s denial of his motion to suppress the evidence seized during the search. The district court sentenced Defendant to 104 months imprisonment and Defendant appealed. Defendant asserts the confidential informant’s tip was insufficient to establish the necessary reasonable suspicion to justify a warrantless search of his residence. Our jurisdiction arises under 28 U.S.C. § 1291. On appeal from a denial of a motion to suppress, we view the evidence in a light most favorable to the government and accept the district court’s findings of historical fact unless clearly erroneous. United States v. Maden, 64 F.3d 1505, 1508 (10th Cir.1995). We review the district court’s ultimate determination of reasonableness under the Fourth Amendment de novo. Id. We have thoroughly reviewed the record and find ample support for the findings of the district court, which we summarize below. Because the facts establish reasonable suspicion to justify the warrantless search of Defendant’s residence, we affirm. I. Salt Lake City police officer Isaac Astencio had been working with a confidential drug informant for three to four months. In September 1993, the informant advised Astencio that a man called “Gucci” was selling crack cocaine. Although he did not know Gucci’s full identity, the informant" }, { "docid": "18199144", "title": "", "text": "about human behavior.” Illinois v. Wardlow, 528 U.S. 119, 125, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). Here, both federal law and the conditions of Hagenow’s probation prohibited him from possessing firearms. A confidential informant who had provided reliable information to law enforcement officials in the past reported that on three occasions in the two months before the search, the informant was at Hagenow’s home when Hagenow showed him firearms. One of these instances, when Hagenow showed the informant a 12 gauge shotgun, occurred only three days before the August 22, 2003 search. Hagenow also told the informant that day that he still possessed a revolver. In addition, the probation officer knew that Hagenow had recently failed a lie detector test after he was charged with shooting a deer with a shotgun. Under these circumstances, we agree with the district court and the government that there was reasonable suspicion that Hagenow unlawfully possessed firearms at his residence, thereby justifying the search of his home. Moreover, we recently addressed a question left open by Knights — whether a waiver like the one Hagenow signed “so diminished, or completely eliminated, [a probationer’s] reasonable expectation of privacy (or constituted consent) that a search by a law enforcement officer without any individualized suspicion would have satisfied the reasonableness requirement of the Fourth Amendment.” Knights, 534 U.S. at 120 n. 6, 122 S.Ct. 587. In United States v. Barnett, 415 F.3d 690 (7th Cir.2005), we considered an agreement by a probationer to “submit to searches of [his] person, residence, papers, automobile and/or effects at any time such requests are made by the Probation Officer, and consent to the use of anything seized as evidence in Court proceedings.” 415 F.3d at 691. We held that this blanket waiver of Fourth Amendment rights as a condition of probation — a waiver similar to that signed by Hagenow — was enforceable, and that the existence of such a waiver alone justified the search of the probationer’s home. Id. at 691-92. Finally, the waiver Hagenow signed as a condition of his probation forecloses his attempt to suppress the evidence" }, { "docid": "16389843", "title": "", "text": "the license and registration and asks questions without further constraining the driver by an overbearing show of authority.” West, 219 F.3d at 1176 (citation omitted). IV. Exclusionary Rule. Under the exclusionary rule, when Government agents violate the Fourth Amendment in a search or seizure, the evidence obtained must be suppressed in the trial. See Wong Sun v. United States, 371 U.S. 471, 484, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Moreover, the Government is prohibited from introducing evidence derived from, or built upon, the evidence unlawfully obtained. See id. at 484-85, 83 S.Ct. 407 (holding that the exclusionary rule applies to indirect as well as direct products of the illegal search). “Nor do the policies underlying the exclusionary rule invite any logical distinction between physical and verbal evidence.” Id. at 486, 83 S.Ct. 407. Analysis Defendant concedes that Trooper Peech’s initial action in stopping Defendant was justified at its inception as a result of the traffic violations he observed. However, Defendant denies that Trooper Peech had consent or reasonable suspicion to justify the detention and questioning of Defendant after the termination of the traffic stop, and further denies that Trooper Peech had probable cause to search the vehicle after Defendant gave him the marijuana bag and pipe. The Court finds that Trooper Peech had reasonable suspicion, based on the totality of the circumstances, to detain Defendant for further questioning after the initial traffic stop was completed when he returned Defendant’s driving documents to her. In addition, he also had consent, as he asked her twice whether it was okay for him to ask her more questions, and she replied affirmatively both times. There is no indication that Trooper Peech made any overbearing show of authority to obtain her consent. The Court also finds that Trooper Peech had reasonable suspicion when he told Defendant that he would have to detain her until a K-9 unit could arrive. The sum of the factors that Trooper Peech witnessed both during the initial traffic stop and during the subsequent questioning was more than enough to give a law enforcement officer reasonable suspicion that illegal" }, { "docid": "18199143", "title": "", "text": "has reasonable suspicion that a probationer subject to a search condition is engaged in criminal activity, a warrant is not necessary. Id. at 122, 122 S.Ct. 587. Like the probationer in Knights, Hagenow signed a specific waiver of rights regarding searches during probation, agreeing to “waive any and all rights as to search and seizure” while on probation and to “submit to search of [his] person or property by any police officer if a search is requested by a probation officer.” Knights made clear that the officers needed no more than reasonable suspicion to justify the search of his home while he was on probation. “Reasonable suspicion amounts to something less than probable cause but more than a hunch,” United States v. Baskin, 401 F.3d 788, 791 (7th Cir.2005), and exists when there is some “ ‘objective manifestation’ that a person is, or is about to be, engaged in prohibited activity.” Knox v. Smith, 342 F.3d 651, 659 (7th Cir.2003). Ultimately, a court’s determination of reasonable suspicion “must be based on common-sense judgments and inferences about human behavior.” Illinois v. Wardlow, 528 U.S. 119, 125, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). Here, both federal law and the conditions of Hagenow’s probation prohibited him from possessing firearms. A confidential informant who had provided reliable information to law enforcement officials in the past reported that on three occasions in the two months before the search, the informant was at Hagenow’s home when Hagenow showed him firearms. One of these instances, when Hagenow showed the informant a 12 gauge shotgun, occurred only three days before the August 22, 2003 search. Hagenow also told the informant that day that he still possessed a revolver. In addition, the probation officer knew that Hagenow had recently failed a lie detector test after he was charged with shooting a deer with a shotgun. Under these circumstances, we agree with the district court and the government that there was reasonable suspicion that Hagenow unlawfully possessed firearms at his residence, thereby justifying the search of his home. Moreover, we recently addressed a question left open by Knights —" }, { "docid": "6892815", "title": "", "text": "850, 855, 126 S.Ct. 2193. Specifically, the reasonable suspicion standard for the search and seizure of a parolee applies when “special needs, beyond the normal need for law enforcement, make the warrant and probable cause requirement impracticable.” Griffin, 483 U.S. at 873, 107 S.Ct. 3164. Here, Plaintiff arranged for Defendant Mohring to sign a “Statement of Residence,” in which she agreed to provide him with housing upon his release on parole, and to cooperate with parole supervision staff should she became aware of any parole violations by Plaintiff. Pursuant to this agreement, when Defendant Mohring suspected that Plaintiff was violating his parole, she contacted Defendant Rice to inform him of the potential violation (possession of child pornography). As Plaintiffs parole officer, Rice then had a duty to investigate the allegations. Based on the information provided by Mohring, Rice contacted Sergeant Vega, who gave Rice permission to seize the cell phone from Mohring. The information provided by Defendant Mohring gave Rice reasonable suspicion to believe Plaintiff was violating his parole and the authority to seize the cell phone, even without a search warrant. Defendant Rice did not initially search the cell phone after seizing it from Mohring, but instead turned it over to Sergeant McQuate, who then obtained a search warrant from a neutral Magisterial District Judge to search the phone. After a search warrant was issued, based on facts meeting the probable cause standard, the cell phone was searched. Thus, Defendant Rice not only had reasonable suspicion to seize the cell phone, but also had probable cause to search it pursuant to a search warrant. For all these reasons, even when viewing the evidence in the light most favorable to Plaintiff, no plausible Fourth Amendment violation under Section 1983 has been established by Plaintiff against Defendant Rice. 3. Defendant Rice is Entitled to Qualified Immunity In addition, Defendant Rice is also entitled to the benefit of qualified immunity for the claim asserted against him. Qualified immunity shields government officials from personal liability for civil damages “insofar as their conduct does not violate clearly established statutory or constitutional rights of which" }, { "docid": "16660664", "title": "", "text": "under his control to a search on the basis that the probation officer has reasonable belief that contraband or other evidence of a violation of the conditions of the release may be found. The search must be conducted at a reasonable time and in a reasonable manner. Supp.App. 95. He argues that the quantum of evidence necessary to ground the “reasonable belief’ required to search his residence is at least equal to the quantum of evidence necessary to ground a “reasonable suspicion” for the purposes of a stop and frisk under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). He further asserts that the information provided to his probation officer by the Bronx District Attorney’s office was not sufficient to establish a “reasonable belief’ because it ultimately came from a confidential informant, and there was insufficient corroborating information or knowledge of the veracity of the informant to deem it reliable. We have previously explained that the federal system of supervised release “presents ‘special needs’ beyond normal law enforcement that may justify departures from the usual warrant and probable-cause requirements.” Unites States v. Reyes, 283 F.3d 446, 461 (2d Cir.2002) (quoting Griffin v. Wisconsin, 483 U.S. 868, 873-74, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987)). In Reyes, we held that because of the strong government interest in ensuring that a releasee complies with the terms of his supervised release, “the probable cause requirements of the Fourth Amendment, which apply to a regular law enforcement officer executing a search warrant for an individual’s home, simply do not apply to visits by probation officers to the homes of convicted persons serving a term of supervised release.” Id. at 462. We did not address the requirements for conducting a search (as opposed to a visit) of a releasee’s home pursuant to a condition of his supervised release. However, the Supreme Court’s holding in Griffin establishes that, where “special needs” such as those presented by the supervised release system exist, it is “reasonable to permit information provided by a police officer, ivhether or not on the basis of firsthand knowledge," }, { "docid": "16191874", "title": "", "text": "at the time of the search, he was on supervised release and subject to a condition that he “submit his person, residence, vehicle or place of business to a search if the Probation Department ha[d] reasonable belief [that] contraband [was] present.” (See Keating Aff. at ¶¶ 11-13.) Rather, he contends that the discovery materials provided to him by the Government are “devoid of any indication that the Probation Department possessed reasonable suspicion to conduct the Probation search.” (The Def.’s Reply Ltr., Dkt. No. 25 (the “Def.’s Reply Ltr.”, at 1-2.) “ ‘Although the Fourth Amendment ordinarily requires the degree of probability embodied in the term ‘probable cause,’ a lesser degree satisfies the Constitution when the balance of governmental and private interests makes such a standard reasonable.’ ” United States v. Reyes, 283 F.3d 446, 462 (2d Cir.2002) (quoting United States v. Knights, 534 U.S. 112, 121, 122 S.Ct. 587, 592, 151 L.Ed.2d 497 (2001)). Courts have repeatedly held that enforcing the conditions of probation or supervised release is a weighty government interest that in certain circumstances justifies an exception to the warrant and probable cause requirements. For example, in Griffin v. Wisconsin, 483 U.S. 868, 871, 107 S.Ct. 3164, 3167, 97 L.Ed.2d 709 (1987), the defendant was convicted in state court and sentenced to a term of probation, which included a condition that a probation officer could conduct a search of a probationer’s home “without a warrant as long as his supervisor approves and as long as there are ‘reasonable grounds’ to believe the presence of contraband.” Id. at 871, 107 S.Ct. 3164. After receiving a tip from a detective that there might be guns in the defendant’s apartment, several probation officers, accompanied by state police officers, entered the defendant’s home without a warrant and found a handgun. See id. The United States Supreme Court affirmed the decision by the state court denying the defendant’s motion to suppress because it found that the search was reasonable under the Fourth Amendment. See id. The Court reasoned that on the one hand: A State’s operation of a probation system, like its operation" }, { "docid": "6892814", "title": "", "text": "approval from a supervisor. 61 Pa.C.S. § 6153(d); see also U.S. v. Baker, 221 F.3d 438, 443 (3d Cir.2000). While this search and seizure must meet the reasonableness requirements of the Fourth Amendment, the Supreme Court has applied a balancing test to weigh the potential intrusion on a parolee’s privacy against the governmental interest at stake. See Samson v. California, 547 U.S. 843, 848, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006); U.S. v. Knights, 534 U.S. 112, 118, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001). The Court has explained that parolees “do not enjoy ‘the absolute liberty to which every citizen is entitled, but only ... conditional liberty properly dependent on observance of special [probation] restrictions.’ ” Griffin v. Wisconsin, 483 U.S. 868, 874, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987) (citing Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)). Therefore, a parolee’s diminished expectation of privacy is justified by the state’s substantial interest in the supervision of its parolees and the prevention of recidivism. Samson, 547 U.S. at 850, 855, 126 S.Ct. 2193. Specifically, the reasonable suspicion standard for the search and seizure of a parolee applies when “special needs, beyond the normal need for law enforcement, make the warrant and probable cause requirement impracticable.” Griffin, 483 U.S. at 873, 107 S.Ct. 3164. Here, Plaintiff arranged for Defendant Mohring to sign a “Statement of Residence,” in which she agreed to provide him with housing upon his release on parole, and to cooperate with parole supervision staff should she became aware of any parole violations by Plaintiff. Pursuant to this agreement, when Defendant Mohring suspected that Plaintiff was violating his parole, she contacted Defendant Rice to inform him of the potential violation (possession of child pornography). As Plaintiffs parole officer, Rice then had a duty to investigate the allegations. Based on the information provided by Mohring, Rice contacted Sergeant Vega, who gave Rice permission to seize the cell phone from Mohring. The information provided by Defendant Mohring gave Rice reasonable suspicion to believe Plaintiff was violating his parole and the authority to seize the" }, { "docid": "9894556", "title": "", "text": "for a trunk button does not, without more, create a reasonable suspicion that Neely was dangerous. And, we cannot say that sufficient “more” was present here. Although the district court notes the late hour, the high-crime area, Neely’s stumbling out of the vehicle, and Officer Tran’s suspicion that Neely was lying about his reasons for being out, this case does not present the type of facts found sufficient in Holmes or United States v. Elston, 479 F3d 314 (4th Cir.2007), to warrant a protective search. The defendant in Holmes, although cooperative during his search, was suspected to be a violent gang member with an outstanding arrest warrant. 376 F.3d at 277-78. Similarly, the officers in Elston possessed detailed information about the defendant due to a 911 call that identified the defendant as threatening to shoot someone in the near future. 479 F.3d at 318-19. By contrast, Officer Tran had no information that would lead him to believe that Neely either had committed violent crimes in his past or posed an immediate threat to the public. Neely’s stumbling, his whereabouts, the time of his encounter with Officer Tran, and Officer Tran’s suspicion that Neely was not truthful regarding his motives for being out so late are relevant to whether a protective search was justified, but they are not dispositive. See Illinois v. Ward-low, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (noting that presence in an area of expected criminal activity is not dispositive, but one of many factors to be considered). We acknowledge that this is a close case, and that several facts present here, under different circumstances, might counsel a different result. But Neely, unlike the defendants in Holmes and Elston, was not thought to be a member of a violent gang with an outstanding arrest warrant or an imminent violent threat based on a detailed 911 tip. There was no evidence or suggestion that Neely was armed. Moreover, Neely never hesitated or complained about following Tran’s orders, never became belligerent, never threatened, intimidated, or in any way suggested that he intended harm. He was not" } ]

[ { "docid": "18148680", "title": "", "text": "emphasize that the only issue before us is whether the district court had authority to grant the Approval Motions. The Non-Settling Defendants argue that such authority was absent because (1) Caplin divests the Trustee of standing; (2) Caplin and its progeny establish constitutional principles of standing and therefore implicate subject matter jurisdiction, see City of Sausalito v. O’Neill, 386 F.3d 1186, 1197, 1199 (9th Cir.2004) (explaining that standing involves both Article III limitations and non-constitutional limitations, and that the “non-constitutional standing inquiry is not whether there is a ‘case or controversy’ under Article III, and thus does not go to our subject matter jurisdiction”); and (3) since the requirements of Article III have not been met, the district court not only lacked jurisdiction to adjudicate the Trustee’s claims, but could not even grant the interlocutory Approval Motions. We address first the issue of the Trustee’s standing and then address the Non-Settling Defendants’ principal objections. 1. A bankruptcy trustee is the representative of the bankrupt estate, and has the capacity to sue and be sued. See 11 U.S.C. § 323. Among the trustee’s duties is the obligation to “collect and reduce to money the property of the estate.” Id. § 704(1). The “property of the estate” includes “all legal or equitable interests of the debtor in property as of the commencement of the case,” id. § 541(a)(1), including the debtor’s “causes of action.” United States v. Whiting Pools, Inc., 462 U.S. 198, 205 n. 9, 103 S.Ct. 2309, 76 L.Ed.2d 515 (1983) (internal quotation marks and citation omitted). Thus, “[u]nder the Bankruptcy Code the trustee stands in the shoes of the bankrupt corporation and has standing to bring any suit that the bankrupt corporation could have instituted had it not petitioned for bankruptcy.” Shearson Lehman Hutton, Inc. v. Wagoner, 944 F.2d 114, 118(2d Cir.1991) (citations omitted). However, “[i]t is well settled that a bankruptcy trustee has no standing generally to sue third parties on behalf of the estate’s creditors, but may only assert claims held by the bankrupt corporation itself.” Id. (citation omitted); see also Steinberg v. Buczynski, 40 F.3d 890," } ]

[ { "docid": "2381049", "title": "", "text": "retain 64 East’s bid deposit and sustained no damages resulting from the return of the deposit. The court will address each argument in turn. 1. Trustee’s Standing Under §§ 541 and 544 of the Bankruptcy Code The Rattet Defendants’ first challenge to the Trustee’s standing under Bankruptcy Code §§ 541 and 544 can be quickly rejected. “Under the Bankruptcy Code the trustee stands in the shoes of the bankrupt corporation and has standing to bring any suit that the bankrupt corporation could have instituted” if it had not filed for bankruptcy protection. Shearson Lehman Hutton, Inc. v. Wagoner, 944 F.2d 114, 118 (2d Cir.1991) (“Wagonet”) (citing 11 U.S.C. §§ 541, 542). Property of the estate under § 541 “includes all kinds of property, including tangible or intangible property, causes of action ... and all other forms of property....” Mitchell Excavators, Inc. by Mitchell v. Mitchell, 734 F.2d 129, 131 (2d Cir.1984) (quoting H.R.Rep. No. 95-595, at 82 (1978), reprinted in 1978 U.S.C.C.A.N. 5787, 5963, 6323). Section 541(a)(1) broadly defines property of the estate as “all legal or equitable interests of the debtor in property as of the commencement of the case,” “wherever located and by whomever held ...;” and § 541(a)(7) provides for the inclusion of any interest in property that is acquired after the commencement of the case. 11 U.S.C. § 541. See U.S. v. Whiting Pools, Inc., 462 U.S. 198, 204-05, 103 S.Ct. 2309, 76 L.Ed.2d 515 (1983) (noting that “ § 541(a)(1) is intended to include in the estate any property made available to the estate by other provisions of the Bankruptcy Code_ Several of these provisions bring into the estate property in which the debtor did not have a possessory interest at the time the bankruptcy proceedings commenced”). Causes of action that arise after the debtor files for bankruptcy generally become property of the debtor’s estate. In re Betty Owens Schools, Inc., No. 96 Civ. 3576, 1997 WL 188127, at *2 (S.D.N.Y. Apr.17, 1997) (collecting cases) (noting that “[t]o become part of the bankruptcy estate, a cause of action must belong to the debtor itself, either" }, { "docid": "20920065", "title": "", "text": "as property of the estate an interest in property which the debtor obtained as beneficiary of a life insurance policy in the 180 days after a petition is filed. Not only may the Trustee reach back to collect all legal and equitable interests of the debtor as of the commencement of the case; he may also reach forward under § 541(a)(5)(C). Section 541(a) derives from § 70(a) of the Bankruptcy Act of 1898. 4 Collier on Bankruptcy, ¶ 541.02 at 541-13 (15th ed. 1985). Section 70(a) of the Act focused on the vesting of interests, and looked at the transferability or leviability of the debtor’s interest in determining whether property became property of the estate. In re Crenshaw, 44 B.R. 30, 32 (Bkrtcy.N.D.Ala.1984). Under the Code, the transferability-leviability standard has been entirely abandoned. In re Graham, 726 F.2d 1268, 1271 (8th Cir.1984). The Code provides a much broader definition of interests constituting property of the estate. See United States v. Whiting Pools, Inc., 462 U.S. 198, 205, 103 S.Ct. 2309, 2313, 76 L.Ed.2d 515 (1983) (“§ 541(a)(1) is intended to include in the estate any property made available to the estate by other provisions of the Bankruptcy Code.”). Section 541(a)(1) provides that “all legal and equitable interests of the debtor in property” became property of the estate. Section 541(a)(5) plainly refers to interests which the debtor “acquires or becomes entitled to acquire,” and avoids any reference to the term “vest.” Moreover, § 541(a)(5)(C) specifically states that the right to receive the proceeds of an insurance policy is an interest in property. Matter of Sharik, 41 B.R. 388, 390 (Bkrtcy.E.D.N.C.1984). The debtor argues that her disclaimer of any interest in the insurance policy means the life insurance proceeds did not become property of the estate. She relies on Hoecker v. United Bank of Boulder, 476 F.2d 838 (10th Cir.1973) in support of her argument. In Hoecker, the court held that the debtor’s execution of a disclaimer pursuant to the Colorado disclaimer statute was not a transfer of property or an interest therein. Therefore, the bankruptcy trustee was not entitled to recover" }, { "docid": "17454201", "title": "", "text": "III. Legal Analysis The filing of a petition under the Bankruptcy Code creates an estate 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). See Owen v. Owen, 500 U.S. 305, 308, 111 S.Ct. 1833, 114 L.Ed.2d 350 (1991) (“An estate in bankruptcy consists of all the interests in property, legal and equitable, possessed by the debtor at the time of filing, as well as those interests recovered or recoverable through transfer and lien avoidance provisions.”). Section 541(a)(1)’s scope is very broad, see United States v. Whiting Pools, Inc., 462 U.S. 198, 205 n. 9, 103 S.Ct. 2309, 76 L.Ed.2d 515 (1983); Chao v. Hosp. Staffing Servs., Inc., 270 F.3d 374, 382 (6th Cir.2001), encompassing both tangible and intangible property. Among the types of intangible property falling within § 541(a)(1)’s sweep are prepetition causes of action held by the debtor. Demczyk v. Mut. Life Ins. Co. (In re Graham Square, Inc.), 126 F.3d 823, 831 (6th Cir.1997) (“[P]roperty of the estate includes the debtor’s interest in a cause of action.” (citing Cottrell v. Schilling (In re Cottrell), 876 F.2d 540, 542 (6th Cir.1989))); In re Degenaars, 261 B.R. 316, 319 (Bankr.M.D.Fla.2001) (“Pursuant to 11 U.S.C. § 541, a trustee in bankruptcy succeeds to all causes of action held by a debtor at the time a bankruptcy petition is filed.”). The Code affords debtors the right to exempt certain property from the bankruptcy estate. 11 U.S.C. § 522(b); Owen, 500 U.S. at 308, 111 S.Ct. 1833 (“An exemption is an interest withdrawn from the estate (and hence from the creditors) for the benefit of the debtor. Section 522 [of the Code] determines what property a debtor may exempt.”). Two purposes are served by allowing debtors to exempt property from their bankruptcy estate: “(1) to give the debtors a so-called ‘grubstake’ to begin their fresh start and (2) to act as a safety net, so that the debtor and his family are not completely impoverished due to creditor collection action or bankruptcy such that they become wards of" }, { "docid": "18626215", "title": "", "text": "either sequestration or other judicial process, and accordingly affirmed the district court’s decision that the personal injury action did not vest in the trustee. Unlike former Bankruptcy Act § 70, (11 U.S.C. § 110), current Section 541(a)(1) of the Bankruptcy Code defines property of the bankruptcy estate to include “all legal or equitable interests of the debtor in property as of the commencement of the ease.” “The scope of section 541 is broad, and includes causes of action.” Sierra Switchboard Co. v. Westinghouse Electric Corp., 789 F.2d 705, 707 (9th Cir.1986), citing United States v. Whiting Pools, Inc., 462 U.S. 198, 205 & n. 9, 103 S.Ct. 2309, 2313 & n. 9, 76 L.Ed.2d 515 (1983). The Sierra Switchboard Court continued: In Tignor v. Parkinson, 729 F.2d 977 (4th Cir.1984) the Fourth Circuit broadly construed section 541 and held that an unliquidated personal injury claim was property of the bankruptcy estate. The court, recognizing that such claims would have been excluded under former section 70a as a non-transferable interest, unreachable by creditors, reasoned: The Bankruptcy Reform Act which repealed the old Bankruptcy Act is a significant change in the law applicable to the property of the bankrupt estate. Under the old Act only non-exempt property was included as part of the bankrupt estate_ Under the Reform Act, however, all property of the debtor is included in the bankrupt estate, including exempt property. “After the property comes into the estate, then the debtor is permitted to exempt it under proposed 11 U.S.C. § 522, and the court will have jurisdiction to determine what property may be exempted ...” Legislative History, 1978 U.S. Code Cong. & Ad.News at 5787, 5868, 6324 ... The legislative history of this statute is explicit ...: “The scope of this paragraph is broad. It includes all kinds of property, including tangible or intangible property, causes of action....” The fact that the schedule of exemptions established by Congress in the Reform Act includes an exemption of $7,500 for personal bodily injury claims is another clear indication that 11 U.S.C. § 541(a) brings such claims into the bankrupt estate" }, { "docid": "8467271", "title": "", "text": "Switchboard Co. v. Westinghouse Elec. Corp., 789 F.2d 705, 707 (9th Cir.1986) (citing United States v. Whiting Pools, Inc., 462 U.S. 198, 204-05, 205 n. 9, 103 S.Ct. 2309, 2313-14, 2313 n. 9, 76 L.Ed.2d 515 (1983)); In re Smith, 640 F.2d 888, 892 (7th Cir.1981). In contrast, section 70(a)(5) of the Bankruptcy Act of 1898, the predecessor statute to section 541, included in the estate rights of property, which prior to the filing of the petition [the bankrupt] could by any means have transferred or which might have been levied upon and sold under judicial process against him, or otherwise seized, impounded, or sequestered: Provided, That rights of action ... for ... injuries to the person of the bankrupt ... shall not vest in the trustee unless by the law of the State such rights of action are subject to attachment, execution, garnishment, sequestration, or other judicial process .... Thus, the new Bankruptcy Code changed the legal landscape by dramatically expanding the definition of property included in the estate. In re Hunter, 970 F.2d 299, 302 (7th Cir.1992). Section 541 eliminated the requirement that property must be transferable or subject to process in order to become initially part of the estate. Id. Moreover, with the enactment of the Code, a revised exemption scheme was also implemented under 11 U.S.C. § 522. As we explained in Hunter: Under this section, two alternative sets of exemptions are created. Subsection 522(b)(1) affords the debtor the federal exemptions set forth in subsection 522(d); alternatively,- under subsection 522(b)(2), the debtor may choose the exemptions provided by his domicile state along with exemptions provided by federal, non-Code bankruptcy law (e.g., the social security payment exemption, 42 U.S.C. § 407, and veterans benefits exemption, 38 U.S.C. § 1970(g))____ The Code also allows individual states to take this choice away from the debtor by “opting out” of the federal exemptions altogether. See 11 U.S.C. § 522(b)(1). Id. at 303. Thus, while state law is no longer relevant to define property of the estate, state law is extremely pertinent if a debtor is attempting to exempt property under" }, { "docid": "12843892", "title": "", "text": "of a judicial lien creditor under § 544, to treat an interest in property which the debtor obtained by bequest in the 180 days after a petition is filed as property of the estate. Not only may the Trustee reach back to collect all legal and equitable interests of the debtor as of the commencement of the case; he may also reach forward under § 541(a)(5)(A). Section 541(a) derives from § 70(a) of the Bankruptcy Act of 1898 (repealed 1978) (“Act”), although § 541(a) provides a much broader definition of interests constituting property of the estate. See United States v. Whiting Pools, Inc., 462 U.S. 198, 205, 103 S.Ct. 2309, 2313, 76 L.Ed.2d 515 (1983) (“§ 541(a)(1) is intended to include in the estate any property made available to the estate by other provisions of the Bankruptcy Code”). Section 70(a) of the Act focused on the vesting of interests, and looked at the transferability or leviability of the debt- or’s interest in determining whether property became property of the estate. In re Crenshaw, 44 B.R. 30, 32 (Bankr.N.D.Ala.1984) (citing In re Edgar, 728 F.2d 1371 (11th Cir.1984), rev’d on other grounds, 51 B.R. 554 (N.D.Ala.1985). See also In re Graham, 726 F.2d 1268, 1271 (8th Cir. 1984). In Edgar, the Eleventh Circuit used this transferability-leviability standard and held that income received by the beneficiary-debtor of a spendthrift trust during the 180 days after the filing of the petition did not become property of the estate. 728 F.2d at 1374. The dissent stated “I would hold here that the income distributed to the bankrupt-appellant within six months of his bankruptcy ‘was acquired’ at the time of distribution.” Id. The transferability-leviability standard applied under the Act has been criticized. See In re Goff, 706 F.2d 574, 578 (5th Cir.1983). See also In re Edgar, 728 F.2d 1371 (11th Cir.1984) (dissent). Under the Code, this standard has been entirely abandoned. In re Graham, 726 F.2d at 1271. The Code provides instead that “all legal and equitable interests of the debtor in property” become property of the estate. Section 541(a)(5)(A) plainly refers to interests" }, { "docid": "13942399", "title": "", "text": "considered these factors, the district court was well within its discretion to permit Fehl’s appeal to go forward. Accord In re Bienert, 48 B.R. 326, 327 (N.D.Iowa 1985) (where debtors and their attorney showed no bad faith with reference to their untimely designation of record and issues on appeal, action should not be dismissed. “[Jjustice is better served when controversies are decided on their merits rather than procedural technicalities.”). B. The Emotional Distress Claim as Property of the Bankruptcy Estate The district court held that Fehl’s emotional distress claim was the property of the bankruptcy estate under 11 U.S.C. § 541(a)(1). Questions of statutory interpretation are reviewed de novo. Powell v. Tucson Air Museum Foundation of Pima County, 771 F.2d 1309, 1311 (9th Cir.1985). 11 U.S.C. § 541(a)(1) (1982) defines property of the bankruptcy estate to include “all legal or equitable interests of the debt- or in property as of the commencement of the case.” The scope of section 541 is broad, and includes causes of action. United States v. Whiting Pools, Inc., 462 U.S. 198, 205 & n. 9, 103 S.Ct. 2309, 2313 & n. 9, 76 L.Ed.2d 515 (1983). Section 70a(5) of the Bankruptcy Act, former 11 U.S.C. § 110(a)(5)(1976), the predecessor statute to section 541, defined property to include: [rjights of action, which prior to the filing of the petition [the bankrupt] could by any means have transferred or which might have been levied upon and sold under judicial process against him, or otherwise seized, impounded, or sequestered: Provided, That rights of action ... for injuries to the person of the bankrupt ... shall not vest in the trustee unless by the law of the State such rights of action are subject to attachment, execution, garnishment, sequestration, or other judicial process.... The issue before us is whether the Bankruptcy Reform Act of 1978 broadened the definition of “property” to include a cause of action for emotional distress where such a cause of action could not be reached by creditors under state law. See Purdy v. Pacific Automobile Insurance Co., 157 Cal.App.3d 59, 79-80, 203 Cal.Rptr. 524, 536" }, { "docid": "16472386", "title": "", "text": "Section 541(a)(1), (3) of the Code provides that the filing of a petition in bankruptcy creates an estate that encompasses “all legal and equitable interests of the debtor in property as of the commencement of the case,” and any interest in property that the trustee recovers under §§ 329(b), 363(n), 543, 550, 553, or 723 of the Code. 11 U.S.C. § 541(a)(1), (3). This provision has been broadly construed. “The scope of [§ 541(a)(1) ] is broad. It includes all kinds of property, including tangible or intangible property, causes of action ... and all other forms of property currently specified in Section 70a of the Bankruptcy Act.” United States v. Whiting Pools, Inc., 462 U.S. 198, 205 n. 9, 103 S.Ct. 2309, 2313 n. 9, 76 L.Ed.2d 515 (1983) (quoting S.Rep. No. 989, 95th Cong., 2d Sess. 82 (1978), reprinted in 1978 U.S.Code Cong. Admin.News 5787, 5868). See, S.I. Acquisition v. East-way Delivery Service, Inc. (In re S.I. Acquisition), 817 F.2d 1142, 1149 (5th Cir.1987). Courts have regularly applied § 541 of the Code to include property alleged to have been fraudulently or improperly transferred by the debtor before filing for Chapter 11 relief, which is recoverable by the trustee or debtor-in-possession as, inter alia, fraudulent conveyances under §§ 548 or 544 of the Code. See, e.g., Koch Refining v. Farmers Union Cent. Exchange, Inc., 831 F.2d 1339, 1343 (7th Cir.1987), cert. denied, 485 U.S. 906, 108 S.Ct. 1077, 99 L.Ed.2d 237 (1988); Carlton v. BAWW, Inc., 751 F.2d 781, 785 (5th Cir.1985); In re Drexler Assoc., Inc., 57 B.R. 312, 314-15 (S.D.N.Y.1986). The trustee is authorized to prosecute such claims in order to marshall the debtor’s property for the benefit of all creditors. This fundamental principle was recently explained by the Second Circuit as follows: Because the trustee ‘represents not only the rights of the debtor but also the interest of creditors of the debtor,’; [Koch Refining v. Farmers Union Cent. Exch., Inc., 831 F.2d at 1342], the trustee ‘has the duty to marshal the debtor’s property for the benefit of the estate, and thus the right to sue" }, { "docid": "3831644", "title": "", "text": "GMAC (In re Wallace), 102 B.R. 114 (Bankr.S.D.Ohio 1989). The line of cases on this issue, as well as interpretation of the relevant statutes, makes it clear that the crucial point in time is when the Elliotts lose the right to redeem collateral National City had not ended the right of redemption by conducting a sale of the vehicle. The statutory right of redemption created an equitable interest reposed in the Elliotts. See In re Sutton, 87 B.R. 46, 48 (Bankr.S.D.Ohio 1988) (a secured party claiming rights in a repossessed item does not gain full control over the item when the right to redeem exists) (citing Smith v. Acceleration Life Ins. Co., 4 Ohio App.3d 105, 446 N.E.2d 855, 859 (1982)). Section 541(a)(1) includes in the bankruptcy estate any property made available to the estate by other provisions of the bankruptcy code. United States v. Whiting Pools, Inc., 462 U.S. 198, 205, 103 S.Ct. 2309, 2313, 76 L.Ed.2d 515 (1983). Such provisions include § 542. Under § 542(a) a trustee is allowed to gain possession of property of the debtor from a third party that the trustee may use, sell or lease. It is only if the property is of inconsequential value or benefit to the estate that it need not be turned over. In Whiting Pools, the Supreme Court held that § 541(a)(1) includes any property that may be made available to the estate by other provisions of the bankruptcy code. Whiting Pools, 462 U.S. at 205, 103 S.Ct. at 2313-14. This can include “[pjroperty of the debtor repossessed by a secured creditor ... and [the property] therefore may be drawn into the estate.” Id. National City argues that the holding of Whiting Pools allows for treatment as property of the estate only when there has been no transfer of ownership. This distinction is relied upon to justify exclusion of the vehicle as property of the estate because “ownership” has been transferred pursuant to section 4505.10(A) of the Ohio Revised Code. It ignores, however, the context of the Court’s holding in Whiting Pools, and the interest that National City" }, { "docid": "17713427", "title": "", "text": "incoherent dismemberment of the debtor which would occur under a “first-come-first-served” scheme. See H.R.Rep. No. 595, 95th Cong., 2d Sess. 178, reprinted in, 1978 U.S.Code Cong. & Admin.News 5787, 5963, 6138. In a further effort to consolidate all the debtor’s assets and distribute them equally between creditors, the Bankruptcy Code contains provisions empowering the court or the trustee in bankruptcy to recover property belatedly, unlawfully, or fraudulently transferred by the debtor in an effort to place it outside the reach of creditors. Any effort to recover this property is essentially an action to recover property that belongs to the debtor. In re MortgageAmerica Corp., 714 F.2d 1266, 1275 (5th Cir.1983). For example, the section 544 “strong arm” provision of the Code allows the trustee to “step into the shoes” of a creditor in order to nullify transfers voidable under state fraudulent conveyance acts for the benefit of all creditors. See 11 U.S.C. § 544 (1982). Any property recovered is returned to the estate to be divided pro rata. In re Johnson, 28 B.R. 292, 297 (Bankr.N.D.Ill.1983). The Supreme Court has stated that the definition of property of the estate includes “any property made available to the estate by other provisions of the Bankruptcy Code.” United States v. Whiting Pools, Inc., 462 U.S. 198, 205, 103 S.Ct. 2309, 2313, 76 L.Ed.2d 515 (1983). Thus, property fraudulently conveyed and recoverable under Bankruptcy Code provisions remains property of the estate and, if recovered, should be subject to equitable distribution under the Code. The Board’s claim against Arsham challenges as fraudulent a transaction from MARSCO to Arsham. It is well established that a creditor can proceed against a bankrupt corporation’s officers and directors despite the automatic stay provision of the Bankruptcy Code. See, e.g., In re Nashville Album Productions, Inc., 33 B.R. 123 (M.D.Tenn.1983). The creditor’s ability to bring suit is premised upon the notion that the action is not one against the debtor or the property of the estate. Id. at 124. If, however, a creditor brings a collateral action against third parties (including the debtor corporation’s officers) in an attempt to satisfy" }, { "docid": "18783528", "title": "", "text": "the written restriction is noted on the shares. Gladys cites Groves v. Prickett, 420 F.2d 1119, 1122 (9th Cir.1970), which upheld under California law a restriction on stock transfer as against a trustee in bankruptcy under Chapter XI of the Bankruptcy Act. On the other hand Klabunde contends the stock restrictions are void under Section 541(c)(1)(A) of the Code, citing In The Matter of Trilling and Montague, 140 F.Supp. 260 (D.Pa.1956) for the proposition that such stock restrictions do not apply to transfers by operation of law, but only to voluntary transfers and further Gladys is estopped from enforcing the restrictions because she did not comply with the provisions in loaning the money to the Debtor. We start this analysis with Section 541 of the Code. As stated in In Re Daniel, 771 F.2d 1352, 1360 (9th Cir.1985): “Under Section 541 of the Bankruptcy Code, all property in which a debtor has a legal or equitable interest at the time of bankruptcy comes into the estate. 11 U.S.C. 541(a)(1) (1982). What constitutes a legal or equitable interest is broadly construed. * * * ” To the same effect is United States v. Whiting Pools, Inc., 462 U.S. 198, 103 S.Ct. 2309, 2313, 76 L.Ed.2d 515 (1983). Section 541(a) property of the estate includes “all legal or equitable interests of the debtor in property as of the commencement of the case”. The legislative history indicates that the 1978 Code reflected a substantial change in the determination of property of the estate and abandoned the uncertain concept of what was transferable to the estate. In Re Graham, 726 F.2d 1268 (8th Cir.1984). In addition, the 1978 Code provides under 541(c)(1)(A): “Except as provided in paragraph (2) of this subsection, an interest of the debtor in property becomes property of the estate under subsection (a)(1), (a)(2), or (a)(5) of this section notwithstanding any provision in an agreement, transfer instrument, or applicable nonbankruptcy law— (A) that restricts or conditions transfer of such interest by the debtor; or (B) that is conditioned on the insolvency or financial condition of the debtor, on the commencement of" }, { "docid": "15001037", "title": "", "text": "question at issue in this case is whether 11 U.S.C.A. § 541(c)(2) excludes from the property of a bankruptcy estate an IRA which is subject to a restriction on transfer by a state statute. The proper construction of the Bankruptcy Code, whether by the bankruptcy court or by the district court, is a matter of law. Accordingly, we subject such interpretations to de novo review. In re Haas, 48 F.3d 1153, 1155 (11th Cir.1995). B. Analysis Property of a-bankruptcy estate includes “all legal and equitable interests of the debtor in property as of the commencement of the case.” 11 U.S.C.A. § 541(a)(1). The scope of § 541(a)(1) is broad, and includes property of all types, tangible and intangible, as well as causes of actions. United States v. Whiting Pools, Inc., 462 U.S. 198, 205 & n. 9, 103 S.Ct. 2309, 2313 & n. 9, 76 L.Ed.2d 515 (1983). Debtor argues that her IRA is excluded from the bankruptcy estate pursuant to 11 U.S.C.A § 541(c)(2), which provides: A restriction on the transfer of a beneficial interest of the debtor in a trust that is enforceable under applicable nonbankrupt-cy law is enforceable in a case under this title. Debtor argues that her IRA should be excluded from the estate under § 541(c)(2) because O.C.G.A. § 18-4-22(a) imposes a restriction on transfer by garnishment. Section 18-4-22(a) provides in relevant part: Funds or benefits from an individual retirement account as defined in Section 408 of the United States Internal Revenue Code of 1983, as amended, [are~ exempt from the process of garnishment until paid or otherwise transferred to a member of such program or beneficiary thereof. Appellee, the bankruptcy trustee, sets forth two reasons why debtor's IRA should not qualify for the § 541(c)(2) exclusion: first, because the transfer restriction is contained only in the Georgia statute and is not contained within the IRA document itself; and second, because debtor Meehan had access to the IRA funds for personal use and the restriction was applicable only to creditors. In rejecting Meehan's claim for exclusion of the property, both the bankruptcy court and the" }, { "docid": "18369668", "title": "", "text": "1023 (6th Cir.2001); Palmer, 2007 WL 949801, at *3. Thus, the Trustee’s argument in this case is at least partially correct. Under § 544(a), the Trustee does indeed stand in the shoes of a hypothetical creditor. Palmer, 2007 WL 949801, at *3. However, the powers of a trustee acting in the capacity of a hypothetical lien creditor under § 544(a) are not as broad as the Trustee claims. The language of § 544 provides a trustee with limited authority to use hypothetical lien creditor status to avoid transfers of the debtor’s property under non-bankruptcy law. See Alberts v. Tuft (In re Greater Southeast Comm. Hosp. Corp.), 333 B.R. 506, 520 (Bankr.D.C.2005); Goldin v. Primavera Familienstiftung, TAG Assocs., Ltd. (In re Granite Partners, L.P.), 194 B.R. 318, 324 (Bankr.S.D.N.Y.1996). Contrary to the Trustee’s argument, § 544 does not give a trustee the right to bring creditor causes of action for damages such as the aiding and abetting actions asserted in this case. Greater Southeast Comm. Hosp., 333 B.R. at 520-21; Granite Partners, 194 B.R. at 324. The limitation of a trustee’s § 544 powers derives from the well-settled principle, dating back to before the enactment of § 544, that “... a bankruptcy trustee has no standing generally to sue third parties on behalf of the estate’s creditors, but may only assert claims held by the bankrupt corporation itself.” Shearson Lehman Hutton, Inc. v. Wagoner, 944 F.2d 114, 118 (2d Cir.1991). This principle is traced to the Supreme Court decision of Caplin v. Marine Midland Grace Trust Co. of New York, 406 U.S. 416, 92 S.Ct. 1678, 32 L.Ed.2d 195 (1972). In Caplin, the Supreme Court held that under the former Bankruptcy Act, a chapter X trustee lacked standing to assert creditors’ claims of misconduct against an indenture trust on behalf of the holders of debentures issued by the bankrupt entity. Id. at 428, 92 S.Ct. 1678. The Supreme Court concluded that nothing in the Bankruptcy Act provided the trustee with authority to collect money not owed to the estate. Id. Instead, the trustee’s task is “simply to ‘collect and reduce to" }, { "docid": "12088224", "title": "", "text": "used to satisfy the debtor’s obligations to other creditors, and the debts to the victims of the fraud may not be discharged. 11 U.S.C. § 523(a)(2), (4). See United States v. Whiting Pools, Inc., 462 U.S. 198, 204-05 nn. 8, 10, 103 S.Ct. 2309, 2313-14 nn. 8, 10, 76 L.Ed.2d 515 (1983); In re Teltronics, Ltd., 649 F.2d 1236, 1239 (7th Cir.1981). The Trustee acknowledges all of this but relies on § 544(a)(3): 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— ... (3) a bona fide purchaser of real property from the debtor, against whom applicable law permits such transfer to be perfected, that obtains the status of a bona fide purchaser at the time of the commencement of the case, whether or not such a purchaser exists. A bona fide purchaser of the leasehold interest, without notice of the earlier claim, would take ahead of a person who has not recorded his entitlement. Not only Virgin Islands real estate law, 28 V.I.Code § 124, but also the Uniform Partnership Act, adopted in both the Virgin Islands and Wisconsin, 26 V.I.Code § 42, Wis.Stat. § 178.07(3), provides this. See also In re Marino, 813 F.2d 1562, 1565 (9th Cir.1987) (trustee may avoid undisclosed partnership claim against real property under similar California statute). So the Trustee submits that the Plunkett estate includes the Pan-Am leasehold, “as of the commencement of the case”, without need for action on his part. Not so fast!, the partners rejoin. The estate can’t contain the leasehold “as of the commencement of the case” because § 541(d) says that it does not contain property in which the debtor holds bare legal title: 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" }, { "docid": "4348014", "title": "", "text": "Estate in General. The Bankruptcy Code provides that 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.” § 541(a)(1). “Section 541(a)(1) speaks in terms of the debtor’s ‘interests ... in property,’ rather than property in which the debtor has an interest, but this choice of language was not meant to limit the expansive scope of the section.” United States v. Whiting Pools, Inc., 462 U.S. 198, 205 n. 8, 103 S.Ct. 2309, 2314, 76 L.Ed.2d 515 (1983) (e.g., the estate includes property in which a creditor holds a security interest); Johnston v. Hazlett (In re Johnston), 209 F.3d 611, 613 (6th Cir.2000) (the estate is very broad and includes all property of the debtor whether exempt or nonexempt). A debtor’s interest in stock of a corporation is property of the estate. Staats v. Meade (In re Meade), 84 B.R. 106, 107 (Bankr.S.D.Ohio 1988) (“Stocks and other forms of securities are regarded by the courts as property of the estate.”) (citing In re Cumberland Enters., Inc., 22 B.R. 626 (Bankr.M.D.Tenn.1982)) (additional citation omitted). In this case, the Debtors owned the TTAP stock interest when their joint case was filed. Upon filing of the petition, the stock became property of the estate. Milden v. Joseph (In re Milden), 111 F.3d 138, 1997 WL 189302, at *3 (9th Cir. Apr.16, 1997) (unpublished table decision) (“The stock ownership interest in a corporation wholly owned by the debtors becomes property of the estate upon commencement of the case.”). 2. Enforceability of Restrictions on Stock Transfer. As stated by Justice Stevens, except for some specific bankruptcy statutory provisions, “Congress has generally left the determination of property rights in the assets of a bankrupt’s estate to state law.” Butner v. United States, 440 U.S. 48, 54, 99 S.Ct. 914, 918, 59 L.Ed.2d 136 (1979). Although Butner was decided under the old Bankruptcy Act, the statement applies with equal force under the Bankruptcy Code. Nobelman v. Am. Sav. Bank, 508 U.S. 324, 329, 113" }, { "docid": "18626214", "title": "", "text": "of the following kinds of property wherever located (5) property, including rights of action, which prior to the filing of the petition he could by any means have transferred or which might have been levied upon and sold under judicial process against him, or otherwise seized, impounded, or sequestered: Provided, That rights of action ex delicto for libel, slander, injuries to the person of the bankrupt or of a relative, whether or not resulting in death, seduction, and criminal conversation shall not vest in the trustee unless by the law of the State such rights of action are subject to attachment, execution, garnishment, sequestration, or other judicial process.... Because the trustee in Buda had conceded that a personal injury cause of action was not subject to attachment, execution, or garnishment under Wisconsin law, the appellate court’s inquiry was limited to whether a personal injury cause of action was subject to sequestration or other judicial process under Wisconsin law, and thus constituted property of the estate. It concluded that such a claim was not subject to either sequestration or other judicial process, and accordingly affirmed the district court’s decision that the personal injury action did not vest in the trustee. Unlike former Bankruptcy Act § 70, (11 U.S.C. § 110), current Section 541(a)(1) of the Bankruptcy Code defines property of the bankruptcy estate to include “all legal or equitable interests of the debtor in property as of the commencement of the ease.” “The scope of section 541 is broad, and includes causes of action.” Sierra Switchboard Co. v. Westinghouse Electric Corp., 789 F.2d 705, 707 (9th Cir.1986), citing United States v. Whiting Pools, Inc., 462 U.S. 198, 205 & n. 9, 103 S.Ct. 2309, 2313 & n. 9, 76 L.Ed.2d 515 (1983). The Sierra Switchboard Court continued: In Tignor v. Parkinson, 729 F.2d 977 (4th Cir.1984) the Fourth Circuit broadly construed section 541 and held that an unliquidated personal injury claim was property of the bankruptcy estate. The court, recognizing that such claims would have been excluded under former section 70a as a non-transferable interest, unreachable by creditors, reasoned: The Bankruptcy" }, { "docid": "2201324", "title": "", "text": "one before the Court. Defendant Countrywide also joined, in part, in the Motion to Dismiss filed by Decision One and HSBC Mortgage. The parties completed their briefing on April 14, 2008, and this matter is now ripe for decision. IV. Decision One, HSBC Mortgage and Countrywide contend that all of the counts of the Complaint should be dismissed because the causes of action asserted by the Plaintiff constitute property of the estate solely “vested” with the Chapter 13 Trustee, and that the Plaintiff allegedly lacks the requisite standing to prosecute this case. The Court disagrees, and holds that the Plaintiff indeed has the requisite standing to prosecute this civil action. There is no question that a debt- or’s pre-petition cause of action is property of the bankruptcy estate. See 11 U.S.C. § 541(a) (all “legal and equitable” interests of the debtor constitute property of the estate); see also In re Tippins, 221 B.R. 11, 16 (Bankr.N.D.Ala.1998) (citing United States v. Whiting Pools Inc., 462 U.S. 198, 205 & n. 9, 103 S.Ct. 2309, 2313 & n. 9, 76 L.Ed.2d 515 (1983)). The Bankruptcy Code grants the trustee the power to use, sell, or lease property of the estate. See 11 U.S.C. § 363. However, in a Chapter 13 bankruptcy case, by virtue of Section 1303, a Chapter 13 debtor has the “rights and powers of a trustee under sections 363(b), 363(d), 363(e), 363(f) and 363(0” of the Bankruptcy Code. See 11 U.S.C. § 1303. These powers include the power to “use, sell, or lease” property of the estate. See 11 U.S.C. § 363(b). The only way to “use” a cause of action is to bring suit upon it or settle it. Therefore, it follows that a Chapter 13 debtor has standing to prosecute pre-petition causes of action that constitute property of the estate. See Maritime Elec. Co., Inc. v. United Jersey Bank, 959 F.2d 1194, 1209 n. 2 (3d Cir.1991)(“Chapter 13 debtors are empowered to maintain suit even after a bankruptcy trustee has been appointed in their case: an essential feature of a chapter 13 case is that the debtor" }, { "docid": "1878599", "title": "", "text": "whether subsequent actions by the debtor or by the bankruptcy trustee affect the validity of the trust. On the debtor’s motion for partial summary judgment, the trustee argues that the State of Tennessee as a hypothetical creditor with an execution returned unsatisfied could invade the debtor’s trust, therefore, the bankruptcy trustee can “strong arm” the trust with § 544(a)(2). II. The bankruptcy estate includes “all legal or equitable interests of the debtor in prop erty as of the commencement of the case.” 11 U.S.C. § 541(a)(1). Section 541(a)(1) is broad and expands estate property beyond the transferability and leviability concepts of the Bankruptcy Act of 1938. United States v. Whiting Pools, 462 U.S. 198, 205, 103 S.Ct. 2309, 2313, 76 L.Ed.2d 515 (1983). See H.R.REP. NO. 595, 95th Cong., 1st Sess. at 367-68 (1977) (all interests of debt- or included in estate); S.REP. NO. 989, 95th Cong., 2d Sess. at 82 (1978) U.S.Code Cong. & Admin.News 1978, pp. 5787, 5868, 6323 (“The scope of this paragraph is broad. It includes all kinds of property including tangible or intangible property, causes of action ... and all other forms of property currently specified in section 70a of the Bankruptcy Act.”). Some legal and equitable interests of the debtor do not become property of the bankruptcy estate. These excluded interests are described in §§ 541(b), (c)(2) and (d). Section 541(c)(2) provides: “A restriction on the transfer of a beneficial interest of the debtor in a trust that is enforceable under applicable non-bankruptcy law is enforceable in a case under this title.” Characterized by prohibitions against using trust income or corpus to satisfy creditors of the beneficiary, spendthrift trusts are “restrictions on the transfer of beneficial interests of debtors in a trust” protected in bankruptcy by § 541(c)(2). In re Daniel, 771 F.2d 1352, 1360 (9th Cir.1985); McLean v. Central State, Southeast and Southwest Areas Pension Fund, 762 F.2d 1204, 1206 (4th Cir.1985) (interests subject to enforceable transfer restrictions are not estate property); In re Lichsterahl, 750 F.2d 1488, 1489-90 (11th Cir.1985); In re Reagan, 741 F.2d 95, 97 (5th Cir.1984) (“spendthrift” restrictions are" }, { "docid": "8467270", "title": "", "text": "Finally, the district court opined that Brandstaetter exceeded its intended result by granting a debtor not only a fresh start, but “a head start” in allowing such an exemption from the bankruptcy estate. Id. at 6. Mr. Geise now appeals the decision of the district court. II ANALYSIS We must determine whether, prior to Wisconsin’s amendment of section 815.18 to exempt specifically payments for personal bodily injury claims, see Wis.Stat.Ann. § 815-18(3)(i)(c) (West Supp.1992), an exemption existed for such claims. A. As the bankruptcy and district courts have recognized in confronting this question, the starting point of the analysis must be an understanding of the Bankruptcy Code’s approach to exemptions, an approach that differs radically from the methodology employed in the old Bankruptcy Act of 1898. Except where otherwise provided in the section, 11 U.S.C. § 541(a)(1) defines property of the bankruptcy estate to include “all legal or equitable interests of the debtor in property as of the commencement of the case.” The scope of section 541 is broad and includes causes of action. Sierra Switchboard Co. v. Westinghouse Elec. Corp., 789 F.2d 705, 707 (9th Cir.1986) (citing United States v. Whiting Pools, Inc., 462 U.S. 198, 204-05, 205 n. 9, 103 S.Ct. 2309, 2313-14, 2313 n. 9, 76 L.Ed.2d 515 (1983)); In re Smith, 640 F.2d 888, 892 (7th Cir.1981). In contrast, section 70(a)(5) of the Bankruptcy Act of 1898, the predecessor statute to section 541, included in the estate rights of property, which prior to the filing of the petition [the bankrupt] could by any means have transferred or which might have been levied upon and sold under judicial process against him, or otherwise seized, impounded, or sequestered: Provided, That rights of action ... for ... injuries to the person of the bankrupt ... shall not vest in the trustee unless by the law of the State such rights of action are subject to attachment, execution, garnishment, sequestration, or other judicial process .... Thus, the new Bankruptcy Code changed the legal landscape by dramatically expanding the definition of property included in the estate. In re Hunter, 970 F.2d" }, { "docid": "18807609", "title": "", "text": "for bankruptcy, the judge concluded that the trustee likewise had the right to exercise that option on behalf of the debtor’s estate. The bankruptcy judge also determined that the civil service retirement fund was not a spendthrift trust under South Dakota law. The district court affirmed, stating that because the debtor had “the unfettered right to the assets of this pension fund,” the trustee could exercise the option to receive the debtor’s benefits in one lump sum. The Office of Personnel Management and the debt- or have appealed. The property of a bankruptcy estate includes “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 scope of this section is very broad and includes property of all descriptions, tangible and intangible, as well as causes of action. United States v. Whiting Pools, Inc., 462 U.S. 198, 205 & n. 9, 103 S.Ct. 2309, 2313 & n. 9, 76 L.Ed.2d 515 (1983). Excluded from the bankruptcy estate is property subject to restrictions on transfer by “applicable nonbankruptey law.” 11 U.S.C. § 541(c)(2). By way of illustration, in Patterson v. Shumate, — U.S. -, -, 112 S.Ct. 2242, 2248, 119 L.Ed.2d 519 (1992), the Supreme Court held that a debtor’s interest in an ERISA-qualified plan may be excluded from his estate under the Bankruptcy Code. The Court relied on ERISA’s requirement that approved plans include a provision “ ‘that benefits provided under the plan may not be assigned or alienated.’ ” Id. — U.S. at -, 119 S.Ct. at 2247 (quoting 29 U.S.C. § 1056(d)(1)). A similar restriction on transfer of civil service benefits is included in the statutory scheme of Title 5. Section 8346(a) of that title provides that “[t]he money mentioned by this subchapter [civil service retirement benefits] is not assignable, either in law or equity, ... or subject to execution, levy, attachment, garnishment, or other legal process, except as otherwise may be provided by Federal laws.” As of 1988, section 8342 of Title 5 provides that a federal employee who has been separated from the service for" } ]

[ { "docid": "14649495", "title": "", "text": "The rights thus acquired had substantial economic value for a long term. The thrust of the statute is not deflected by the negative circumstance that Universal did not transfer even more extensive rights to Screen Gems or that Screen Gems’ rights were limited and its license was non-assignable. The thrust of the statute is propelled by the affirmative evidence of what Screen Gems did acquire. The Court concludes that by entering into and performing the exclusive long-term license-distribution arrangement, Screen Gems acquired a part of Universal’s assets within the meaning of Section 7 of the Clayton Act. Television Programming Material Is the Appropriate Line of Commerce: Feature Films Is Not the Appropriate Line of Commerce Plaintiff has failed in its burden of proof because it has not proved by a fair preponderance of the credible evidence that the “line of commerce” or “product market” is limited to the distribution of feature films to television stations. The evidence overwhelmingly establishes that the relevant line of commerce is broader than feature films. It encompasses all forms of television programming material, including syndicated film produced specifically for television, videotaped and live shows, cartoons and shorts. To determine whether or not there is a reasonable probability of a substantial lessening of competition, Section 7 of the Clayton Act demands an examination into economic realities. All competition must be considered, including competition faced by the product in question from other products. The tests enunciated by the authorities are consistent. Effectively, the test “rea sonable interchangeability for the purposes for which (the products) are produced — price, use and qualities considered,” and the test “sufficient peculiar characteristics and uses to constitute them products sufficiently distinct * * to make them a ‘line of commerce’ within the meaning of the Clayton Act” are but different verbalizations of the same criterion. They require the same accumulation and scrutiny of facts and application of judgment. The task is to find the area of effective competition. The “characteristics and uses” formulation does not limit the court’s inquiry to physical attributes and foreclose inquiry into the competitive situation. A cogent statement" } ]

[ { "docid": "18905023", "title": "", "text": "which BJ was producing. The evidence indicates that the term was otherwise unknown in the industry prior to the institution of this action. On the other hand, there has been some industry recognition for the defendants’ grouping of tools used above ground, as compared with those used below ground. For instance, the industry never considered Hughes as an entrant in the above ground tool market although it is extensively involved in supplying below ground equipment. Furthermore, the 1972 Census of Manufacturers, a publication of the Department of Commerce, makes a distinction between surface and subsurface drilling tools. I hold, therefore, that the defendants’ product market, consisting of a cluster of specialized surface rotary drilling tools, is the relevant product market. There exists a high degree of functional complementarity and integration linking the products. There is a high degree of commonality in the technology and manufacturing processes involving the components of the market. All products are marketed through similar channels and to the same group of buyers, and this market has recognition in the industry. SUBMARKETS In addition to a product market, a product submarket may also be a relevant line of commerce for purposes of section 7 of the Clayton Act. In Brown Shoe Co. v. United States, supra, the Supreme Court recognized the existence of submarkets and discussed their applicability to section 7: “The outer boundaries of a product market are determined by the reasonable interchangeability of use or the cross-elasticity of demand between the product itself and substitutes for it. However, within this broad market, well-defined submarkets may exist which, in themselves, constitute product markets for antitrust purposes. (Citation omitted) The boundaries of such a submarket may be determined by examining such practical indicia as industry or public recognition of the submarket as a separate economic entity, the product’s peculiar characteristics and uses, unique production facilities, distinct customers, distinct prices, sensitivity to price changes, and specialized vendors. Because § 7 of the Clayton Act prohibits any merger which may substantially lessen competition ‘in any line of commerce,’ it is necessary to examine the effects of a merger in" }, { "docid": "4128184", "title": "", "text": "on the part of Congress to alter the traditional methods of defining relevant markets within which to ap praise the anti-competitive effect of a merger, and agreed with the District Court in that case that commercial banking in Davidson County was the relevant market for appraising the merger in question therein. This Court finds that the above statement by the Supreme Court was an affirmation of the trial court’s determination that, under the particular facts and circumstances of that case, commercial banking was the appropriate line of commerce within which to measure the impact or anti-competitive effects, if any, of the proposed merger therein. This Court does not believe that the Supreme Court would disagree with this Court’s opinion that commercial banks must not be placed in a distinct and separate category to the exclusion of any and all other financial institutions which actually are competing substantially with commercial banks in various important or integral activities within the relevant geographic market. This would be completely contrary to the intent and purpose of the Clayton Act and would be contradictory and contrary to many of the decided cases such as United States v. Provident National Bank, 280 F.Supp. 1, 9 (U.S. D.C.E.D.Penn.1968). In that case, the Court considered the relevant line of commerce as including not just commercial banking, but other financial institutions (mutual and savings and loan associations), because they offered direct and meaningful competition to commercial banks. In reaching such a conclusion, the Provident Court relied upon the Supreme Court’s ruling in United States v. Continental Can Company, 378 U.S. 441, 84 S.Ct. 1738, 12 L.Ed.2d 953 (1964). In the instant case, the same reason exists since commercial banks experience actual competition in Leflore County from other financial institutions which is actual, fierce, direct and meaningful. As the Court stated in Provident: If such interchangeability can be used negatively in antitrust jurisprudence, surely the same concept can be used positively. The underlying question remains the same in each instance, i. e. to construct reasonable product markets in which to measure probable competitive effects realistically. Despite this Court’s finding of" }, { "docid": "12452021", "title": "", "text": "First, does correspondent banking (or what plaintiff refers to as a “full package of correspondent banking services”) constitute an appropriate “line of commerce” or product market within which to measure the substantiality of any alleged foreclosure? Second, whether the State of Colorado is an appropriate section of the country or “relevant geographic market” within which to measure the substantiality of any alleged market foreclosure? Third, taking into account the appropriately defined market, will the acquisition and resulting foreclosure substantially lessen competition in the geographically defined product market within the meaning of Section 7 of the Clayton Act? A. CORRESPONDENT BANKING AS A “LINE OF COMMERCE” Since the competitive aspect is the main concern under the antitrust laws, the market must be defined in terms of the product or line of products with respect to which there is competition. As stated in Brown Shoe Co. v. United States, 370 U.S. 294, 325, 82 S.Ct. 1502, 1523, 8 L.Ed.2d 510 (1962): The outer boundaries of a product market are determined by the reasonable interchangeability of use or the cross-elasticity of demand between the product itself and substitutes for it. Thus, the issue is whether, in the banking industry in Colorado (or the otherwise relevant geographic market), the various correspondent banking services compete with each other within one product market, or whether they form various more or less distinct, product markets? In order to answer this question, an examination of the economic nature of correspondent banking generally and as specifically set forth in the evidence in this case is necessary. The legal standard for determining the existence, for antitrust purposes, of a line of commerce appears to be that set forth in Brown Shoe Co. v. United States, 370 U.S. 294, 325, 82 S.Ct. 1502, 1524, 8 L.Ed.2d 510 (1962). If commercial banking generally is to be considered a broad line of commerce which includes correspondent banking, * * * within this broad market, well-defined submarkets may exist which, in themselves, constitute product markets for antitrust purposes. United States v. E. I. du Pont de Nemours & Co., 353 U.S. 586, 593-595, 77" }, { "docid": "4128185", "title": "", "text": "and would be contradictory and contrary to many of the decided cases such as United States v. Provident National Bank, 280 F.Supp. 1, 9 (U.S. D.C.E.D.Penn.1968). In that case, the Court considered the relevant line of commerce as including not just commercial banking, but other financial institutions (mutual and savings and loan associations), because they offered direct and meaningful competition to commercial banks. In reaching such a conclusion, the Provident Court relied upon the Supreme Court’s ruling in United States v. Continental Can Company, 378 U.S. 441, 84 S.Ct. 1738, 12 L.Ed.2d 953 (1964). In the instant case, the same reason exists since commercial banks experience actual competition in Leflore County from other financial institutions which is actual, fierce, direct and meaningful. As the Court stated in Provident: If such interchangeability can be used negatively in antitrust jurisprudence, surely the same concept can be used positively. The underlying question remains the same in each instance, i. e. to construct reasonable product markets in which to measure probable competitive effects realistically. Despite this Court’s finding of fact that certain other hereinafter mentioned non-banking financial institutions have been and are actually, directly, realistically, meaningfully and fiercely competing with commercial banks in the Leflore County market, and particularly Greenwood, leading it to conclude as a matter of law that the relevant line of commerce in this particular geographic market is broader than commercial banking, nevertheless this Court emphasizes that were it to confine its consideration of the facts in this case to commercial banking as the sole, relevant line of commerce or product market, and thus accept Plaintiff’s interpretation of subparagraph (B) of 12 U.S.C. section 1828(c) (5), it would still make the same basic findings herein made and reach the same conclusion that it hereafter reaches with reference to whether the proposed merger now or within the reasonably foreseeable future will probably have the effect of substantially lessening competition, actual or potential, and thus tend to create a monopoly. The Court finds as a fact that in the relevant geographic market there have been and are other financial institutions competing for the" }, { "docid": "3888741", "title": "", "text": "wrote: While the term “commercial banking” may be used as a general description of a line of commerce in bank merger cases, a detailed analysis of all of the competitive banking services offered to the public by the merging banks is necessary in each case. Areas of substantial and effective competition in the market in which the merging banks operate are not necessarily the same in each case. As the Supreme Court noted in Philadelphia, supra, “Some commercial banking products or services are so distinctive that they are entirely, free of effective competition from products or services of other financial institutions ; the checking account is in this category.” Id., 374 U.S. at 356, 83 S.Ct. at 1737. To the extent that a bank offers substantial banking services in effective competition with other banks and other financial institutions, the effect of a merger upon such competition, regardless of the source, must be considered. It is the line of commerce consisting of products and services offered which must be examined. This requires a comparison of the products and services offered by competing banks and other financial institutions operating in the market so that the areas of distinct and effective competition may be delineated. Where, for instance, the competition is not substantial or effective, that circumstance is a factor to be weighed in the evaluation of probable lessening of competition. But, on the other hand, where a bank is rendering a substantial banking service in effective competition with competing banks and other financial institutions, the effect of a lessening of present or imminently potential competition cannot be ignored in giving effect to Section 7 of the Clayton Act. In this case it seems from the record before the Court that in many of the banking services offered by the defendant banks there is very virulent and widespread competition from other banks and other financial institutions. The merger would have no substantial anticompetitive effect upon such services. The most significant of these services may be classified as time and savings deposits, conventional real estate loans, and financing of automobiles, appliances and business equipment." }, { "docid": "22602256", "title": "", "text": "of commerce in any section of the country.” Thus, as we have previously noted, “[determination of the relevant market is a necessary predicate to a finding of a violation of the Clayton Act because the threatened monopoly must be one which will substantially lessen competition ‘within the area of effective competition.’ Substan-tiality can be determined only in terms of the market affected.” The “area of effective competition” must be determined by reference to a product market (the “line of commerce”) and a geographic market (the “section of the country”). The Product Market. The outer boundaries of a product market are determined by the reasonable interchangeability of use or the cross-elasticity of demand between the product itself and substitutes for it. However, within this broad market, well-defined submarkets may exist which, in themselves, constitute product markets for antitrust purposes. United States v. E. I. du Pont de Nemours & Co., 353 U. S. 586, 593-595. The boundaries of such a submarket may be determined by examining such practical indicia as industry or public recognition of the submarket as a separate economic entity, the product’s peculiar characteristics and uses, unique production facilities, distinct customers, distinct prices, sensitivity to price changes, and specialized vendors. Because § 7 of the Clayton Act prohibits any merger which may substantially lessen competition “in any line of commerce” (emphasis supplied), it is necessary to examine the effects of a merger in each such' economically significant submarket to determine if there is a reasonable probability that the merger will substantially lessen competition. If such a probability is found to exist, the merger is proscribed. Applying these considerations to the present case, we conclude that the record supports the District Court’s finding that the relevant lines of commerce are men’s, women’s, and children’s shoes. These product lines are recognized by the public; each line is manufactured in separate plants; each has characteristics peculiar to itself rendering it generally noncompetitive with the others; and each is, of course, directed toward a distinct class of customers. Appellant, however, contends that the District Court’s definitions fail to recognize sufficiently “price/quality” and ''age/sex”" }, { "docid": "14649497", "title": "", "text": "of the factfinder’s task was made by the Federal Trade Commission in Brillo Mfg. Co., FTC Dkt. 6557, CCH Trade Reg. Rep., Par. 27,243 (1948). The FTC has a coordinate responsibility with the district courts in the enforcement of the Clayton Act. In Brillo, the FTC said: “We think the hearing examiner in concluding as a matter of law that industrial steel wool was the relevant market erred in basing his determinations solely on the fact that those were the wares being produced by the acquired and acquiring companies. The test instead is whether these products are shown by the facts to have such peculiar characteristics and uses as to constitute them sufficiently distinct from others to make them a ‘line of commerce’ within the meaning of the Act. United States v. E. I. duPont de Nemours & Co., 353 U.S. 586 [77 S.Ct. 872, 1 L.Ed.2d 1057] (1957). That the acquired and acquiring corporations both made industrial steel wool was only one circumstance to be considered. Additional factors which could have been taken into account include data relating to the manner in which the products are marketed, their physical characteristics, prices and possibly other things bearing on the question of whether or not they may be distinguished competitively from other wares. On the other hand, as the examiner in essence held, the mere fact that articles other than steel wool are marketed for industrial use as abrasives is not adequate legal warrant for including all abrasive products in the relevant line of commerce. The determinations as to the area of effective competition should have been made on the basis of all record facts delineating the relevant market or markets.” Inter-product competition has always been recognized where it has been found to exist in effective degree. Where it is not found in effective degree, the products are not competing and, therefore, cannot be included in the same market. Their failure to compete, one with the other, may be due to lack of suitability and interchangeability for the same uses, differences in characteristics and uses, or even because of psychological or" }, { "docid": "5611360", "title": "", "text": "this Court to adopt that conclusion of Judge Oliver as conclusive in this litigation. On May 17, 1976, prior to the Eighth Circuit’s filing of its opinion on May 28, 1976 in connection with the appeal from Judge Oliver’s decision, this Court held that Judge Oliver’s determination of the relevant product market in that case did not foreclose relief to plaintiffs herein, because the standards for determining a relevant product market for purposes of section 2 of the Sherman Act and for purposes of section 7 of the Clayton Act are not identical. In United States v. Bethlehem Steel Corp., 168 F.Supp. 576, 593-94 n.36 (S.D.N.Y.,1958), Judge Weinfeld offered the following pointed commentary as to the difference between those two statutes: * * * There is a basic distinction between § 2 of the Sherman Act and § 7 of the Clayton Act. Further, monopoly power was defined by the Supreme Court in the Cellophane case as “the power to control prices or exclude competition”. Obviously, when the question is power over price, substitute products may be' relevant because they can limit that power. The issue under § 7 of the Clayton Act is not whether a merger may result in a company having power over price or the power to exclude competition. The issue under § 7 is whether there is a reasonable probability of substantial lessening of competition. There can be a substantial lessening of competition with respect to a product whether or not there are reasonably interchangeable substitutes. The merger of two producers of a product may substantially lessen competition or tend to create a monopoly in the market for that product even though it does not substantially lessen competition or tend to create a monopoly in the broader market embracing all the products which are reasonably interchangeable with that product. But cf. Matter of Brillo Mfg. Co., F.T.C.Do. No. 6557 (May 23, 1958). This does not, however, mean that interchangeability can be ignored — a high degree of interchangeability may under certain circumstances make it more or less the same product. American Crystal Sugar Co. v." }, { "docid": "22717740", "title": "", "text": "commerce within the meaning of § 2 of the Sherman Act. The defendants have not made out a case for fragmentizing the types of services into lesser units. Burglar alarm service is in a sense different from fire alarm service; from waterflow alarms; and so on. But it would be unrealistic on this record to break down the market into the various kinds of central station protective services that are available. Central station companies recognize that to compete effectively, they must offer all or nearly all types of service. The different forms of accredited central station service are provided from a single office and customers utilize different services in combination. We held in United States v. Philadelphia Nat. Bank, 374 U. S. 321, 356, that “the cluster” of services denoted by the term “commercial banking” is “a distinct line of commerce.” There is, in our view, a comparable cluster of services here. That bank case arose under § 7 of the Clayton Act where the question was whether the effect of a merger “in any line of commerce” may be “substantially to lessen competition.” We see no reason to differentiate between “line” of commerce in the context of the Clayton Act and “part” of commerce for purposes of the Sherman Act. See United States v. First Nat. Bank & Trust Co., 376 U. S. 665, 667-668. In the § 7 national bank case just mentioned, services, not products in the mercantile sense, were involved. In our view the lumping together of various kinds of services makes for the appropriate market here as it did in the § 7 case. There are, to be sure, substitutes for the accredited central station service. But none of them appears to operate on the same level as the central station service so as to meet the interchangeability test of the du Pont case. Nonautomatic and automatic local alarm systems appear on this record to have marked differences, not the low degree of differentiation required of substitute services as well as substitute articles. Watchman service is far more costly and less reliable. Systems that set" }, { "docid": "12452023", "title": "", "text": "S.Ct. 872, 877, 1 L.Ed.2d 1057. The boundaries of such a submarket may be determined by examining such practical indicia as industry or public recognition of the submarket as a separate economic entity, the product’s peculiar characteristics and uses, unique production facilities, distinct customers, distinct prices, sensitivity to price changes, and specialized vendors. Because § 7 of the Clayton Act prohibits any merger which may substantially lessen competition “in any line of commerce” (emphasis supplied), it is necessary to examine the effects of a merger in each such economically significant submarket to determine if there is a reasonable probability that the merger will substantially lessen competition. In terms of the criteria in Brown Shoe, supra, the evidence presented in this case is somewhat inconclusive as to whether correspondent banking constitutes a separate and distinct product market (or product submarket of commercial banking generally). The testimony did show that there is within the banking community at least, some recognition of the submarket as a separate economic activity and the alleged “line of products” can be said to have unique production facilities, distinct customers, and specialized vendors. On the other hand, there is no evidence in this case that the “product” has distinct prices or sensitivity to price changes. As to the product’s peculiar characteristics and uses, it can be said that the range and diversity of services involved makes it somewhat difficult to classify correspondent banking services as competitive within the same market. At best, the group of services offered varies from bank to bank and the common elements are the demand deposit and the overline loan. From the fact, however, that the alleged line of commerce (apart from the mentioned elements) is diverse and varies from bank to bank, it does not follow that they cannot be legitimately viewed, in a proper case, as a “line of commerce.” The United States Supreme Court has held an equally diverse cluster of banking products and services—commercial banking generally—to be a line of commerce. It is noted that the central feature of this alleged line of commerce is the interbank demand deposit, and" }, { "docid": "3202232", "title": "", "text": "and that they are reasonably interchangeable with, and compete against, all other types of television programming material. The Court’s conclusion is that there is no line of commerce or product market limited to feature films alone.” 189 F.Supp. at pp. 191-192. This case is distinguishable for here the Commission examined the, economic realities of the athletic goods industry and found that the evidence established that “in each of the various product lines for which AGMA price categories were established there is a separate line of low priced items which is not sold in competition with other items in the same product line.” It found that the “manufacture and sale of the low price line of athletic products involves an entirely different market” from “the production and sale of athletic goods in the higher priced, higher quality line,” and that the “products in each of these categories are physically distinct from those in the other; they are different in quality and price, as well as in the purpose for which they are made and used;” and that “these two categories within the various product lines can be distinguished competitively from each other.” Direction for the determination of the relevant market was given by the Commission, itself, in Brillo Manufacturing Co., FTC Dkt. 6557 (1958), CCH Trade Reg.Rep., Par. 27,243, as follows: “* * * We think the hearing examiner in concluding as a matter of law that industrial steel wool was the relevant market erred in basing his determinations solely on the fact that those were the wares being produced by the acquired and acquiring companies. The test instead is whether these products are shown by the facts to have such peculiar characteristics and uses as to constitute them sufficiently distinct from others to make them a ‘line of commerce’ within the meaning of the Act. United States v. E. I. duPont de Nemours & Co. [1957 Trade Cases Par. 68,723], 353 U.S. 586 [77 S.Ct. 872, 1 L.Ed.2d 1057] (1957). That the acquired and acquiring corporations both made industrial steel wool.was only one circumstance to be considered. Additional factors which" }, { "docid": "22602257", "title": "", "text": "submarket as a separate economic entity, the product’s peculiar characteristics and uses, unique production facilities, distinct customers, distinct prices, sensitivity to price changes, and specialized vendors. Because § 7 of the Clayton Act prohibits any merger which may substantially lessen competition “in any line of commerce” (emphasis supplied), it is necessary to examine the effects of a merger in each such' economically significant submarket to determine if there is a reasonable probability that the merger will substantially lessen competition. If such a probability is found to exist, the merger is proscribed. Applying these considerations to the present case, we conclude that the record supports the District Court’s finding that the relevant lines of commerce are men’s, women’s, and children’s shoes. These product lines are recognized by the public; each line is manufactured in separate plants; each has characteristics peculiar to itself rendering it generally noncompetitive with the others; and each is, of course, directed toward a distinct class of customers. Appellant, however, contends that the District Court’s definitions fail to recognize sufficiently “price/quality” and ''age/sex” distinctions in shoes. Brown argues that the predominantly medium-priced shoes which it manufactures occupy a product market different from the predominantly low-priced shoes which Kinney sells. But agreement with that argument would be equivalent to holding that medium-priced shoes do not compete with low-priced shoes. We think the District Court properly found the facts to be otherwise. It would be unrealistic to accept Brown’s contention that, for example, men’s shoes selling below $8.99 are in a different product market from those selling above $9.00. This is not to say, however, that “price/quality” differences, where they exist, are unimportant in analyzing a merger; they may be of importance in determining the likely effect of a merger. But the boundaries of the relevant market must be drawn with sufficient breadth to include the competing products of each of the merging companies and to recognize competition where, in fact, competition exists. Thus we agree with the District Court that in this case a further division of product lines based on “price/quality” differences would be “unrealistic.” Brown’s contention that" }, { "docid": "14649522", "title": "", "text": "products involved are competitive one with the other, or reasonably interchangeable for the same use; and the use involved in the case at bar is programming for television. The antitrust laws are ultimately directed toward protecting consumers. The consumers here involved are television stations. In sum, the evidence establishes that feature films face a high degree of compe tition from other forms of television programming material; that they do not have peculiar characteristics or uses that are significant for television purposes; and that they are reasonably interchangeable with, and compete against, all other types of television programming material. The Court’s conclusion is that there is no line of commerce or product market limited to feature films alone. Metropolitan New York is an Appropriate Section of the Country The finding and conclusion that feature films do not represent a separate line of commerce is fatal to plaintiff’s case under Section 7 of the Clayton Act. Hence it is unnecessary to determine whether metropolitan New York is an appropriate “section of the country” in which to test the effects of the acquisition. Nevertheless, in the interest of a definitive disposition of that litigated issue, the Court will consider and pass upon it. The issue is a close one and not free from considerable doubt. Plaintiff expressly limited its case to metropolitan New York and offers no proof to show competitive conditions in any broader geographical area. Plaintiff and defendants are in agreement on the legal formulation embodied in the Senate Report accompanying the amendments to Clayton Act, § 7: “Although it is, of course, impossible to define rigidly what constitutes a ‘section of the country,’ certain broad standards reflecting the general intent of Congress can be set forth to guide the Commission and the courts in their interpretation. “What constitutes a section will vary with the nature of the product. Owing to the differences in the size and character of markets, it would be meaningless, from an economic point of view, to attempt to apply for all products a uniform definition of section, whether such a definition were based upon miles, population," }, { "docid": "12452022", "title": "", "text": "the cross-elasticity of demand between the product itself and substitutes for it. Thus, the issue is whether, in the banking industry in Colorado (or the otherwise relevant geographic market), the various correspondent banking services compete with each other within one product market, or whether they form various more or less distinct, product markets? In order to answer this question, an examination of the economic nature of correspondent banking generally and as specifically set forth in the evidence in this case is necessary. The legal standard for determining the existence, for antitrust purposes, of a line of commerce appears to be that set forth in Brown Shoe Co. v. United States, 370 U.S. 294, 325, 82 S.Ct. 1502, 1524, 8 L.Ed.2d 510 (1962). If commercial banking generally is to be considered a broad line of commerce which includes correspondent banking, * * * within this broad market, well-defined submarkets may exist which, in themselves, constitute product markets for antitrust purposes. United States v. E. I. du Pont de Nemours & Co., 353 U.S. 586, 593-595, 77 S.Ct. 872, 877, 1 L.Ed.2d 1057. The boundaries of such a submarket may be determined by examining such practical indicia as industry or public recognition of the submarket as a separate economic entity, the product’s peculiar characteristics and uses, unique production facilities, distinct customers, distinct prices, sensitivity to price changes, and specialized vendors. Because § 7 of the Clayton Act prohibits any merger which may substantially lessen competition “in any line of commerce” (emphasis supplied), it is necessary to examine the effects of a merger in each such economically significant submarket to determine if there is a reasonable probability that the merger will substantially lessen competition. In terms of the criteria in Brown Shoe, supra, the evidence presented in this case is somewhat inconclusive as to whether correspondent banking constitutes a separate and distinct product market (or product submarket of commercial banking generally). The testimony did show that there is within the banking community at least, some recognition of the submarket as a separate economic activity and the alleged “line of products” can be said" }, { "docid": "4128208", "title": "", "text": "compared to about $60,000,000 in bank loans in Leflore County. The appropriate line of commerce, in Dr. Haywood’s opinion, would include approximately $140,-000,000 in assets in Leflore, $80,000,000 of which is in non-bank financial assets and competing institutions with $60,-000,000 in commercial bank assets. This greatly dilutes the concentration ratio of GB to, in Dr. Haywood’s opinion, approximately 19%. We reiterate and re-emphasize that were the Court to confine its consideration of the facts of this case to commercial banking as the sole relevant line of commerce or product market, closing our eyes to actual, real, existing and fierce competition from the above non-banking financial institutions in Leflore County, and thus accepting the Plaintiff’s interpretation of 12 U.S.C. section 1828(c) (5) (B), we would still make the same basic findings herein and reach the same conclusions which we hereafter make in our determination of whether or not the proposed merger of the Defendant banks is proscribed by Section 7 of the Clayton Act, that is, whether it now or within the reasonably foreseeable future will have the effect substantially to lessen competition, actual or potential, or tend to create a monopoly. Now having determined the relevant geographic market in this case to be Leflore County and having determined that the relevant and appropriate line of commerce or product market in this case is not only commercial banking but also the foregoing non-bank financial institutions which are substantially, realistically and actually competing with commercial banking for savings and credit extension in the relevant geographic market, it devolves upon us to decide the crucial question of whether or not the proposed merger between FNB Jackson and GB is anti-competitive within the meaning of Section 7 of the Clayton Act. ACTUAL COMPETITION BETWEEN FNB JACKSON AND GB IN THE RELEVANT MARKET The parties have admitted and agreed through stipulation that the Defendant banks are not engaged in business in the same geographic market and that there is no substantial actual competition between them (Tr. 7, 9, 11), and that FNB Jackson is not a competitor in the Leflore County market with GB or" }, { "docid": "4128179", "title": "", "text": "will attempt to determine the ultimate question of whether the proposed merger between the Defendant banks would constitute a violation of Section 7 of the Clayton Act now or within the reasonably foreseeable future, having the effect substantially to lessen competition, actual or potential, or tend to create a monopoly. THE APPROPRIATE AND RELEVANT “GEOGRAPHIC MARKET” All of the parties have stipulated and agreed that Leflore County, Mississippi is the appropriate or relevant geographic market or “section of the country” within which to appraise the anti-competitive effects of the proposed merger (Agreed Contested Issues of Fact and Law; The Court, Tr. 37, Lines 2-6 and Tr. 82, Lines 13-17; Roache, Attorney for Intervenor, Tr. 4, Lines 8-10 and Tr. 20, Lines 1-4; Stipulation, Tr. 347, Lines 20-24). THE RELEVANT OR APPROPRIATE “LINE OF COMMERCE” OR “PRODUCT MARKET” In view of the fact that the relevant geographic market is Leflore County, the next matter to be considered and resolved in determining whether the merger is one in violation of Section 7 of the Clayton Act is the appropriate line of commerce within which to measure the probable anti-competitive effects, if any, of the proposed merger. This Court is mindful of the fact that in United States v. Philadelphia National Bank, 374 U.S. 321, 356, 83 S.Ct. 1715, 1737, 10 L.Ed.2d 915 (1963), the Supreme Court held under the particular circumstances of that case at the time it was decided, that “the cluster of products (various kinds of credit) and services (such as checking accounts and trust administration) denoted by the term ‘commercial banking’ * * * composes a distinct line of commerce.” The Court in Philadelphia also stated as did Plaintiff’s witness, Dr. Golden, that among all financial institutions the demand deposit and check clearing functions of commercial banks are unique and entirely free of effective competition from products or services of other financial institutions. Id. 356, 83 S.Ct. 1715 (Golden, Tr. 178, Lines 1-20). The Supreme Court in Philadelphia placed great significance on the fact that * * * there are banking facilities which, although in terms of cost and" }, { "docid": "18905024", "title": "", "text": "In addition to a product market, a product submarket may also be a relevant line of commerce for purposes of section 7 of the Clayton Act. In Brown Shoe Co. v. United States, supra, the Supreme Court recognized the existence of submarkets and discussed their applicability to section 7: “The outer boundaries of a product market are determined by the reasonable interchangeability of use or the cross-elasticity of demand between the product itself and substitutes for it. However, within this broad market, well-defined submarkets may exist which, in themselves, constitute product markets for antitrust purposes. (Citation omitted) The boundaries of such a submarket may be determined by examining such practical indicia as industry or public recognition of the submarket as a separate economic entity, the product’s peculiar characteristics and uses, unique production facilities, distinct customers, distinct prices, sensitivity to price changes, and specialized vendors. Because § 7 of the Clayton Act prohibits any merger which may substantially lessen competition ‘in any line of commerce,’ it is necessary to examine the effects of a merger in each such economically significant submarket to determine if there is a reasonable probability that the merger will substantially lessen competition.” 370 U.S. 294, 325, 82 S.Ct. 1502, 1523, 8 L.Ed.2d 510, 535. (Emphasis the Court’s) (Footnotes omitted) As previously noted, the government has urged this court to consider each tool and two combinations of tools within the government’s cluster as individual sub-markets. Although all of the government’s proposed submarkets satisfy some of the tests suggested by the Supreme Court in Brown Shoe Co. v. United States, supra, none represents a viable submarket against which to measure the anticompetitive effect of the merger. Dr. Neil Jacoby, the defendants’ expert economist, testified that one of several elements to be considered in determining the presence of a separate submarket was whether the proposed submarket has substantial sales. Using annual sales of approximately $184 million for the defend ants’ product line, Dr. Jacoby indicated by testimony that, as applied to the facts of this case, a submarket was probably economically significant if it had sales of somewhere between $2" }, { "docid": "3202230", "title": "", "text": "of shoes should be considered in determining the relevant ‘line of commerce’.” It found a significant “degree of interchangeability” in the shoe industry. For example, the court found interchangeability in the shoe manufacturing process, in price, style and quality of shoes, in the use to which shoes are put by customers and finally that “the shoe people themselves admit that their trade classifications * * * and * * characterizations * * * to differentiate * * * to catch the buying eye, do not determine the use to which the shoe is put or by whom it [is], put.” In the athletic goods industry, however, the Commission found no such interchangeability between low priced and higher priced categories. It found that the AGMA price delineations mark divisions between non-interchangeable products constituting distinct areas of effective competition. The fact pattern surrounding higher and lower priced men’s shoes in Brown Shoe is readily distinguishable from that around the higher priced and low priced categories of athletic goods in this case. Finally Spalding cites Columbia Pictures asserting that the court there “would not fragment the relevant lines of commerce (television programming) into separate so-called lines of commerce by reference to quality-derived price distinctions.” In that case the court declined to find that “feature films”- — -i. e., those films originally produced for theatre viewing and later released for television showing — constituted a line of commerce or product market distinct from other types of television programming material including syndicated films produced specifically for television, live programming video taped shows, cartoons and shorts. The court held: “To determine whether or not there is a reasonable probability of a substantial lessening of competition, Section 7 of the Clayton Act demands an examination into economic realities. All competition must be considered, including competition faced by the product in question from other products.” 189 F.Supp. at p. 183. It concluded: “In sum, the evidence establishes that feature films face a high degree of competition from other forms of television programming material; that they do not have peculiar characteristics or uses that are significant for television purposes;" }, { "docid": "12216703", "title": "", "text": "the major products and services offered by commercial banks constitute separate lines of commerce which must be analyzed in their particular competitive context; (b) That no meaningful product advantage is obtained in competing within these separate lines of commerce because of any particular conglutinations of them; (c) Commercial banking is not a line of commerce but a combination of several lines of commerce; (2) There is a cross-elasticity of demand for duplicated services between commercial banks and other financial institutions; (3) There is no significant difference between duplicated products and services offered by banks and other financial institutions; (4) By excluding the phrase “in any line of commerce” from the Bank Merger Act, Congress contemplated that the broader field of financial institutions generally should be considered in evaluating the effects of a bank merger. Intervenor contends: (1) Financial institutions compete substantially among themselves for their particular services and ekch such service constitutes an appropriate line of commerce. Identical contention of defendants and intervenor. . Provident, supra 280 F.Supp. at 7; Crocker-Anglo, supra 277 F.Supp. at 154; United States v. Third National Bank of Nashville, 260 F.Supp. 869, 878, n. 5 (M.D.Tenn.1966) . Plaintiff contends: (1) “Section of the country” is the geographic market in which the competitive effects of a merger are felt; (2) The area delimited by the counties of Blaine, Camas, Gooding, Lincoln, Minidoka, Jerome, Twin Falls and Cassia, excluding the mountainous, non-arable, sparsely inhabited portions to the north, southwest and southeast, referred to in the trial and hereafter as the “Johnson Area” is the relevant geographic market within which to assess the effects of this merger on existing competition and the potential for greater competition between defendants; (3) The area consisting of the City of Twin Falls and its environs is the relevant sub-market within which to assess the effects of this merger on potential competition; (4) Both the “Johnson Area” and the City of Twin Falls and its environs are clearly sections of the country within the intendment of Section 7 of the Clayton Act and the Bank Merger Act. Defendants contend: As to Actual Competition:" }, { "docid": "3202231", "title": "", "text": "that the court there “would not fragment the relevant lines of commerce (television programming) into separate so-called lines of commerce by reference to quality-derived price distinctions.” In that case the court declined to find that “feature films”- — -i. e., those films originally produced for theatre viewing and later released for television showing — constituted a line of commerce or product market distinct from other types of television programming material including syndicated films produced specifically for television, live programming video taped shows, cartoons and shorts. The court held: “To determine whether or not there is a reasonable probability of a substantial lessening of competition, Section 7 of the Clayton Act demands an examination into economic realities. All competition must be considered, including competition faced by the product in question from other products.” 189 F.Supp. at p. 183. It concluded: “In sum, the evidence establishes that feature films face a high degree of competition from other forms of television programming material; that they do not have peculiar characteristics or uses that are significant for television purposes; and that they are reasonably interchangeable with, and compete against, all other types of television programming material. The Court’s conclusion is that there is no line of commerce or product market limited to feature films alone.” 189 F.Supp. at pp. 191-192. This case is distinguishable for here the Commission examined the, economic realities of the athletic goods industry and found that the evidence established that “in each of the various product lines for which AGMA price categories were established there is a separate line of low priced items which is not sold in competition with other items in the same product line.” It found that the “manufacture and sale of the low price line of athletic products involves an entirely different market” from “the production and sale of athletic goods in the higher priced, higher quality line,” and that the “products in each of these categories are physically distinct from those in the other; they are different in quality and price, as well as in the purpose for which they are made and used;” and" } ]

[ { "docid": "22222386", "title": "", "text": "In short, the State knew it had an “arguable” statute of limitations defense, see Ibid., yet it chose, in no uncertain terms, to refrain from interposing a timeliness “challenge” to Wood’s petition. The District Court therefore reached and decided the merits of the petition. The Tenth Circuit should have done so as well. * * * For the reasons stated, the judgment of the Court of Appeals for the Tenth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Colorado Rule of Criminal Procedure 35(c) (1984) provides, in relevant part: “[E]very person convicted of a crime is entitled as a matter of right to make application for postconviction review upon the groun[d]... [t]hat the conviction was obtained or sentence imposed in violation of the Constitution or laws of the United States or the constitution or laws of this state.” The Tenth Circuit’s conclusion that it had authority to raise an AEDPA statute of limitations defense sua sponte conflicts with the view of the Eighth Circuit. Compare 403 Fed. Appx. 335, 337, n. 2 (CA10 2010) (ease below), with Sasser v. Norris, 553 F. 3d 1121, 1128 (CA8 2009) (“The discretion to consider the statute of limitations defense sua sponte does not extend to the appellate level.”). The one-year clock may also be stopped- — or “tolled” — for equitable reasons, notably when an “extraordinary circumstance” prevents a prisoner from filing his federal petition on time. See Holland v. Florida, 560 U. S. 631 (2010). Wood does not contend that the equitable tolling doctrine applies to his case. App. 144a, n. 5. We note here the distinction between defenses that are “waived” and those that are “forfeited.” A waived claim or defense is one that a party has knowingly and intelligently relinquished; a forfeited plea is one that a party has merely failed to preserve. Kontrick v. Ryan, 540 U. S. 443, 458, n. 13 (2004); United States v. Olano, 507 U. S. 725, 733 (1993). That distinction is key to our decision in Wood’s ease. Although our decision in Granberry" } ]

[ { "docid": "22447761", "title": "", "text": "because of the doctrine of procedural bar. A federal court cannot grant a petitioner habeas relief on claims with respect to which the petitioner failed to follow state rules of procedure at trial, on appeal, or on state postconviction review. A claim on which the petitioner did not follow state procedures will only be excused from procedural default if the petitioner can show good cause for the failure to follow state procedure and actual prejudice resulting therefrom. See Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Thus, even if the District Court were to have held Morris’s petition in abeyance pending resolution of the second PCRA petition (thereby almost certainly avoiding any AEDPA statute of limitations problem), if the state courts dismissed his PCRA petition for untimeliness, he could not obtain federal relief on the claims stated in the second PCRA petition because of procedural default, unless he could show cause and prejudice. Thus, the risks he faces are (1) that he will be time-barred from presenting meritorious claims from his first PCRA petition in federal court even though they were properly exhausted, and (2) that he will be time-barred from presenting meritorious claims from his second PCRA petition even though he can show cause and prejudice to excuse his procedural default on them. Whether he could show cause and prejudice on the claims in the second PCRA petition adds another level of speculation onto Morris’s contention that he might be harmed by the District Court’s order. Morris, however, contends that the “extraordinary circumstance” justifying Rule 60(b) relief is the possibility that he may never, because of AEDPA’s statute of limitations, be able to present his claims in federal court. The Commonwealth is of course correct that the harm is at most probabilistic, but that does not avoid the fact that, if he is harmed, there will then be nothing he can do about it. While Morris clearly faces serious consequences if his second PCRA petition is rejected as untimely and the" }, { "docid": "962956", "title": "", "text": "this one does. . The Warden argues that we are not permitted to entertain Bell’s Brady claim because he failed to present it to the state courts prior to bringing his claim in federal court and his claim is now procedurally defaulted. For his part, Bell does not contest the Warden’s rep- reservation that he did not assert a Brady violation in state court. Under both the pre-AEDPA and AEDPA regimes, Bell was required to exhaust the remedies available to him in Tennessee’s courts prior to seeking relief in federal court. See 28 U.S.C. § 2254(b) (1994); 28 U.S.C. § 2254(b)(1)(A) (1996). Where a petitioner fails to exhaust his state remedies \"and the court to which the petitioner would be required to present his claim in order to meet the exhaustion requirement would now find the claims procedurally barred ... there is a procedural default for purposes of federal habeas...\" Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (emphasis added). Because Tennessee law limits an inmate to only one postconviction petition, Tenn. Code Ann. § 40-30-102(a), Bell is precluded from returning to state court to exhaust his Brady claim properly, and his claim is therefore procedurally defaulted. A habeas petitioner who defaults on his federal claims in state court is barred from bringing those claims in federal court unless he \"can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law,, or demonstrates that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750, 111 S.Ct. 2546. As the Supreme Court explained in Barilcs v. Dretke, the cause and prejudice standard tracks the last two elements of a Brady claim: suppression by the government and materiality. 540 U.S. 668, 691, 124 S.Ct. 1256, 157 L.Ed.2d 1166 (2004) (citing Strickler, 527 U.S. at 282, 119 S.Ct. 1936). We therefore choose to focus our attention on the merits of Bell's claim with the understanding that our decision on the merits resolves any issues as to procedural default. ." }, { "docid": "1349458", "title": "", "text": "is now before our en banc panel. II. Martinez v. Ryan and Trevino v. Thaler The district court properly concluded under then-governing law that Detrich’s trial-counsel IAC claims raised for the first time in his federal habeas petition had been procedurally defaulted, and that it therefore could not hear them. A federal court sitting in habeas ordinarily cannot hear a petitioner’s procedurally defaulted federal claims absent a showing of cause and prejudice, or a showing that failing to review the claim will result in a fundamental “miscarriage of justice.” Wainwright v. Sykes, 433 U.S. 72, 88, 90-91, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) (applying the rule in the context of failure to make contemporaneous objection); Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (making “explicit” that Wainwright and its progeny apply in “all eases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule”). In Coleman, the Court held that ineffective assistance of counsel in a state PCR proceeding cannot constitute cause to excuse a procedural default because there is no constitutional right to an attorney in state PCR proceedings. 501 U.S. at 752-53, 111 S.Ct. 2546. Applying Coleman, the district court correctly held, based on the law as it then stood, that the ineffectiveness of Detrich’s state PCR counsel in failing to raise trial-counsel IAC claims could not constitute cause. While the district court’s decision was on appeal, the Supreme Court changed the law. See Martinez, 132 S.Ct. at 1315. The Court held in Martinez that “[inadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner’s procedural default of a claim of ineffective assistance at trial.” Id. The Court addressed the situation in Ari zona, where a prisoner is forbidden to raise a trial-counsel IAC claim on direct review. Such a claim may be brought only in state PCR proceedings. Id. The Court wrote that in such cases, “the collateral proceeding is in many ways the equivalent of a prisoner’s direct appeal as to the ineffective-assistance" }, { "docid": "16129886", "title": "", "text": "rely on a previous conviction to enhance his sentence, the district court lacks jurisdiction to impose an enhanced sentence until the government files an information as required under § 851.” Id. at 1307. We held, therefore, that a § 2255 applicant was not required to show cause or prejudice to obviate a procedural default by failing to object to the §851 information at trial because a jurisdictional defect could not be procedurally defaulted or waived. Id. at 1308-09; see also United States v. Jackson, 544 F.3d 1176, 1184-85 (11th Cir. 2008); Ramirez, 501 F.3d at 1239-40; Thompson, 473 F.3d at 1144. We have since cast doubt on whether Harris’s jurisdictional holding remains good law in light of subsequent Supreme Court rulings. United States v. Ladson, 643 F.3d 1335, 1343 n.11 (11th Cir. 2011) (citing Eberhart v. United States, 546 U.S. 12, 16, 126 S.Ct. 403, 163 L.Ed.2d 14 (2005); Kontrick v. Ryan, 540 U.S. 443, 455, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004)). We are required to adhere to our past decisions. United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008); United States v. Steele, 147 F.3d 1316, 1317-18 (11th Cir. 1998) (en banc). But the rule is not without exception. Thus, we are not bound by the decisions of our prior panels where those decisions have been overruled or undermined to the point of abrogation by the Supreme Court or by this. Court sitting en banc. United States v. Whatley, 719 F.3d 1206, 1216 (11th Cir. 2013); Archer, 531 F.3d at 1352; Chambers v. Thompson, 150 F.3d 1324, 1326 (11th Cir. 1998). The exception applies only where the intervening decisions “actually abrogate or directly conflict with, as opposed to merely weaken, the holding of the prior panel.” United States v. Kaley, 579 F.3d 1246, 1255 (11th Cir. 2009). We hold today that our decisions that § 851 imposes a jurisdictional limit on a district court’s authority have been undermined to the point of abrogation by subsequent decisions of the Supreme Court. First, in Kontrick v. Ryan, 540 U.S. 443, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004), the" }, { "docid": "2709014", "title": "", "text": "is that if the state court finds a claim was procedurally defaulted at trial, we cannot reach the merits of that claim unless the petitioner meets the federal habeas standards to excuse the procedural waiver. The second is that the petitioner must have properly presented the claim to the state court under the exhaustion requirement of § 2254(b)(1). And the third is that if the habeas petition “presents a federal claim that was raised before the state court but was left unresolved,” this court reviews the claim de novo. Horton v. Allen, 370 F.3d 75, 80 (1st Cir.2004). After all, “AEDPA imposes a requirement of deference to state court decisions, but we can hardly defer to the state court on an issue that the state court did not address.” Fortini v. Murphy, 257 F.3d 39, 47 (1st Cir.2001). B. Procedural Default The respondents argue that this court should not review the merits of Lynch’s due process claim, because he procedurally defaulted his challenge to the jury instructions and has not shown circumstances to excuse the default. In contrast to the statutory exhaustion requirement, the procedural default doctrine stems from equitable principles informed by history, statutes, and judicial decisions. See McCleskey v. Zant, 499 U.S. 467, 489-90, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991) (discussing similarities of doctrines of procedural default and “abuse of the writ”); Wainwright, 433 U.S. at 81, 97 S.Ct. 2497. The procedural default doctrine consists largely of judge-made rules. See Dretke v. Haley, 541 U.S. 386, 394, 124 S.Ct. 1847, 158 L.Ed.2d 659 (2004). Respondents’ procedural default argument invokes the rule that [i]n all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991);" }, { "docid": "16369496", "title": "", "text": "limitations period and a court-recognized procedure for tolling that statute when specific due process grounds are presented.” 303 F.3d 720, 738 (6th Cir.2002). Harbison asserts that these procedural rules do not represent adequate state procedural grounds because the Burford principle may create inconsistent results. He further asserts that the procedural grounds are not independent of federal law because application of Burford to a later-arising Brady claim requires consideration of the merits of the Brady claim. “In habeas, if the decision of the last state court to which the petitioner presented his claim fairly appeared to rest primarily on resolution of those claims, or to be interwoven with those claims, and did not clearly and expressly rely on an independent and adequate state ground, a federal court may address the petition.” Coleman v. Thompson, 501 U.S. 722, 735, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). An evaluation of the adequacy and independence of a hypothetical state court decision is unnecessary in this case, however: [I]f the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims proeedurally barred ... there is a procedural default for purposes of federal habeas regardless of the decision of the last state court to which the petitioner actually presented his claims. Id. at 735, n. 1, 111 S.Ct. 2546 (emphasis added). Because this claim hás been procedurally defaulted, it may be considered on its merits only if Harbison demonstrates cause and prejudice. Bousley, 523 U.S. at 622, 118 S.Ct. 1604. Harbison argues that the - State’s failure to provide him with the police files demonstrates cause. He asserts that “[t]he cause inquiry ... turns on events or circumstances external to the defense.” Banks v. Dretke, 540 U.S. 668, 696, 124 S.Ct. 1256, 157 L.Ed.2d 1166 (2004) (quotation omitted). In Banks, the Supreme Court rejected a state’s argument that the cause inquiry should revolve around the petitioner’s conduct,, which in that case included an alleged lack of appropriate diligence in pursuing a Brady claim. Id." }, { "docid": "18530947", "title": "", "text": "in Adv. No. 07-07033-TLM was filed on August 24, 2007. This is more than one year after Debtor’s discharge was entered, and Trustee would appear to be time-barred from proceeding under § 727(d)(1). This Court, in fact, previously held such a bar applicable to a trustee’s § 727(d)(1) action. See Krommenhoek v. Covino (In re Covino), 241 B.R. 673, 677 n. 6, 99.4 I.B.C.R. 138, 139 n. 6 (Bankr.D.Idaho 1999). However, in this case, Debtor never raised any objection to the maintenance of the action on the basis that it was barred under § 727(e)(1). Trustee argues that bar under § 727(e)(1) is in the nature of a statute of limitations and, thus, is an affirmative defense that must be affirmatively raised by a defendant. See Fed.R.Civ.P. 8(c)(1), incorporated under Fed. R. Bankr.P. 7008(a). Trustee consequently sees this defense as waived by Debtor. Subsequent to Covino, the Supreme Court issued its decision in Kontrick v. Ryan, 540 U.S. 443, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004). In Kontrick, a unanimous court held that the time limit provided under Fed. R. Bankr.P. 4004(a) for objecting to a debtor’s discharge was not “jurisdictional” and, thus, a debtor forfeited the right to rely on this time bar by failing to seasonably raise it. 540 U.S. at 447, 453-56, 124 S.Ct. 906. This conclusion flowed from the fact that the deadlines in “claim-processing rules” like Rule 4004(a) and 9006(b) “do not delineate what cases bankruptcy courts are competent to adjudicate.” Id. at 454, 124 S.Ct. 906. Then, noting that Kontrick had failed to raise the time constraints of Rules 4004(a) and (b) and 9006(b)(3) in pleadings responsive to Ryan’s complaint, the Supreme Court explained how the defense was lost. Id. at 459-60, 124 S.Ct. 906 (addressing Fed.R.Civ.P. 12(b), incorporated by Bankr.P. 7012, which operates to waive defenses not raised by motion or responsive pleading, unless protected by Rule 12(h)(2) or (3), and that time prescriptions are not among those defenses so protected.) The distinction drawn in Kontrick between time bars in the Federal Rules of Bankruptcy Procedure and those in the Bankruptcy Code informs" }, { "docid": "1903790", "title": "", "text": "this court. Because this court has not made any decision that is contrary to our ruling today, and because the doctrine of the law of the case is prudential and not jurisdictional, we hold that since the April order is, where explicable, consistent with our reasoning today, the doctrine of the law of the case is not upset in any cognizable way. V We therefore hold that this court is without jurisdiction to consider Bowles’s appeal. Accordingly, this appeal is DISMISSED. . The Supreme Court has recently distinguished between rules that govern subject-matter jurisdiction and those that are \"inflexible claim-processing” rules. See Eberhart v. United States, - U.S. -, 126 S.Ct. 403, 163 L.Ed.2d 14 (2005) (per curiam); Kontrick v. Ryan, 540 U.S. 443, 456, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004). For two reasons, we believe this distinction is not applicable to the case at bar. First, in Kontrick, the Court found that \"[n]o statute, however, specifies a time limit for filing a complaint objecting to the debtor's discharge. Instead, the controlling time prescriptions are contained in the Federal Rules of Bankruptcy Procedure, specifically, Rules 4004(a) and (b) and 9006(b)(3).” 540 U.S. at 448, 124 S.Ct. 906. Second, the petitioner in Kontrick, in answering the untimely complaint, never addressed the issue of untimeliness, and thus forfeited the right to rely on the time limits in the Federal Rules of Bankruptcy Procedure. Id. at 459-60, 124 S.Ct. 906 (\"No reasonable construction of complaint-processing rules, in sum, would allow a litigant situated as Kontrick is to defeat a claim, as filed too late, after the party has litigated and lost the case on the merits”). Similarly, in Eberhart, the government opposed the defendant’s motion on the merits, ignoring the timeliness problem. Thus, \"where the Government failed to raise a defense of untimeliness until after the District Court had reached the merits, it forfeited that defense.” 126 S.Ct. at 407. Nor does the court in Eberhart identify a specific statute from which Rule 33 could be said to contain an element of subject-matter jurisdiction. See Kontrich, 540 U.S. at 453, 124 S.Ct." }, { "docid": "1460626", "title": "", "text": "his state habeas proceeding and was afforded an evidentiary hearing. Yet, petitioner presented the state habeas court with no fact-specific allegations suggesting any jury misconduct occurred during delib erations at petitioner’s trial. Petitioner subpoenaed neither Rosemary Harrell nor any of petitioner’s other petit jurors to testify during the evidentiary hearing held in petitioner’s state habeas corpus proceeding. Petitioner has alleged no specific facts establishing a factual basis for his allegation that jury misconduct “may have” occurred during deliberations at his trial has ever existed or showing when petitioner first became aware of these allegations. Under such circumstances, petitioner has failed to establish his failure to present this portion of his final claim herein to his state habeas court was the product of anything more than a lack of due diligence on the part of his state habeas counsel. Accordingly, petitioner procedurally defaulted on the unexhausted portion of his fifteenth claim herein by failing to fairly present some form of this claim to the state courts either on direct appeal or in petitioner’s state habeas corpus proceeding. Coleman v. Thompson, 501 U.S. at 735 n. 1, 111 S.Ct. at 2557 n. 1. C. No Merits As with petitioner’s other, unexhausted, procedurally defaulted claims, this Court’s alternative review of the merits of those claims is conducted under a de novo standard. Solis v. Cockrell, 342 F.3d 392, 394 n. 2. (5th Cir.2003), cert. denied, 540 U.S. 1151, 124 S.Ct. 1149, 157 L.Ed.2d 1045 (2004). 1. Unspecified Misconduct During Deliberations Petitioner has alleged no specific facts showing any identified juror engaged in any extraneous act of misconduct during deliberations at petitioner’s trial. 2. Rosemary Harrell’s Allegedly False Voir Dire Testimony As this Court explained in Section V.D.l. above, the state habeas trial court expressly found there was no evidence showing: (1) Mrs. Harrell had been convicted of theft in 1979 or (2) her voir dire testimony regarding the disposition of her 1979 theft charge was inaccurate. This Court independently reviewed the entire record from Mrs. Harrell’s voir dire examination and all of the testimony given during petitioner’s state habeas corpus proceeding under a" }, { "docid": "14227561", "title": "", "text": "procedural defense towards merits fits this description (quoting Kontrick v. Ryan, 540 U.S. 443, 458 n. 13, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004))). Accordingly, we decline to address the state’s procedural default argument and instead proceed to the merits of McCormick’s Brady claim. See United States v. McGehee, 672 F.3d 860, 873 (10th Cir.2012) (concluding party isn’t entitled to appellate relief when attempting to reassert argument it previously raised and abandoned, below). II. The prosecution stlppressed material evidence favorable to McCormick. McCormick argues he is entitled -to ha-beas relief because the prosecution’s failure to disclose the truth about Ridling’s credentials violated his due process rights under Brady. Specifically, McCormick challenges the district court’s -finding that the prosecutor didn’t suppress any evidence related to Ridling’s credentials because Ridling was neither a state employee nor under the prosecutor’s authority.' Ordinarily, the standard of review under the Antiterrorism and Effective Death Penalty Act presénts a “formidable barrier to federal habeas relief’ when a state court rejects a claim on the merits. White v. Wheeler, — U.S. -, 136 S.Ct. 456, 460, 193 L.Ed.2d 384 (2015) (quoting Burt v. Titlow, — U.S. -, 134 S.Ct. 10, 16, 187 L.Ed.2d 348 (2013)). But if the state- court never evaluated the merits of a claim and that claim isn’t otherwise procedurally barred, we will “exercise our independent judgment in deciding the claim.” Hain v. Gibson, 287 F.3d 1224, 1229 (10th Cir.2002). “In doing so, we review the federal district court’s conclusions of law de novo and its findings of fact, if any, for-clear err.or.” Id. Accordingly, because the OCCA never addressed McCormick’s Brady claim on the merits and because' the state waived any argument that the claim is procedurally barred, we exercise de novo review of the district court’s rejection of McCormick’s .Brady claim. In' Brady, the Court held' that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the' evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87, 83 S.Ct. 1194." }, { "docid": "23476396", "title": "", "text": "PCRA process was ineffective. Having proeedurally defaulted any potential habeas corpus claims by failing twice to take an appeal, Cristin must look to the few exceptions available to the procedural default doctrine for salvation of his claims. As noted above, the Supreme Court has explained that, following a petitioner’s procedural default, “federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750, 111 S.Ct. 2546. To show cause and prejudice, “a petitioner must demonstrate some objective factor external to the defense that prevented compliance with the state’s procedural requirements.” Id. at 753, 111 S.Ct. 2546. “To show a fundamental miscarriage of justice, a petitioner must demonstrate that he is actually innocent of the crime ... by presenting new evidence of innocence.” Keller v. Larkins, 251 F.3d 408, 415-16 (3d Cir.2001) (citations omitted). Thus, Cristin must establish either “cause and prejudice” for both defaults or demonstrate that a “fundamental miscarriage of justice” will result from his continued incarceration. III. Evidentiary Hearings on Procedural Default Before considering whether Cristin can satisfy either of these two excuses to the procedural default rule, we address first the Commonwealth’s contention that the District Court should not have granted Cristin an evidentiary hearing on those excuses under 28 U.S.C. § 2254(e)(2). As revised by the 1996 Antiterrorism and Effective Death Penalty Act (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214 (1996), § 2254(e)(2) reads as follows: (2) If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that— (A) the claim relies on — ■ (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence;" }, { "docid": "14227560", "title": "", "text": "Hooks v. Ward, 184 F.3d 1206, 1216 (10th Cir.1999) (“There is no doubt that ‘state-court .procedural default .... is an affirmative defense,’ and that the state is ‘obligated to raise procedural default as a defense or lose, the right to assert the defense thereafter.’ ” (quoting Gray v. Netherland, 518 U.S. 152, 165-66, 116 S.Ct 2074, 135 L.Ed.2d 457 (1996))). We previously — and explicitly — invited the state to reassert its procedural default defense when we remanded to the district court with, directions to address McCormick’s Brady claim, See McCormick, 571 Fed.Appx. at 688. Yet the- state conceded at oral argument that it failéd to take advantage of our invitation.’ And the state’s decision to abandon a defense we explicitly invited it to raise in favor of challenging the merits is a textbook' example of waiver. See Wood v. Milyard, — U.S. -, 132 S.Ct. 1826, 1835, 182 L.Ed.2d 733 (2012) (describing .waiver as the “intentional relinquishment \"or abandonment of a known right” and noting that state’s choice to deliberately steer court away from procedural defense towards merits fits this description (quoting Kontrick v. Ryan, 540 U.S. 443, 458 n. 13, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004))). Accordingly, we decline to address the state’s procedural default argument and instead proceed to the merits of McCormick’s Brady claim. See United States v. McGehee, 672 F.3d 860, 873 (10th Cir.2012) (concluding party isn’t entitled to appellate relief when attempting to reassert argument it previously raised and abandoned, below). II. The prosecution stlppressed material evidence favorable to McCormick. McCormick argues he is entitled -to ha-beas relief because the prosecution’s failure to disclose the truth about Ridling’s credentials violated his due process rights under Brady. Specifically, McCormick challenges the district court’s -finding that the prosecutor didn’t suppress any evidence related to Ridling’s credentials because Ridling was neither a state employee nor under the prosecutor’s authority.' Ordinarily, the standard of review under the Antiterrorism and Effective Death Penalty Act presénts a “formidable barrier to federal habeas relief’ when a state court rejects a claim on the merits. White v. Wheeler, — U.S. -," }, { "docid": "5881420", "title": "", "text": "before the district court, and (2) the record is silent as to which ACCA clause—enumerated or residual—the district court earlier relied on. Regardless, Casey’s petition is time-barred for the same reason as the other two petitions: it raises a Mathis, not a Johnson II, challenge. 1. Forfeiture The Government failed to argue be-. fore the district court that Casey’s petition was untimely, relying instead on another procedural bar: that Casey had defaulted his- Johnson II claim. On appeal, Casey attempts to use the Government’s omission as a fehield against AEDPA’s strict statute of limitations and argues that the government may no longer raise the timeliness issue on appeal. We disagree that the Government’s inadvertence is fatal to applying the timeliness bar here. The Supreme Court has repeatedly recognized the power of federal courts to raise sua sponte the timeliness of habeas petitions. See Wood v. Milyard, 566 U.S. 463, 473, 132 S.Ct. 1826, 182 L.Ed.2d 733 (2012) (courts of appeals); Day v. McDonough, 547 U.S. 198, 209, 126 S.Ct. 1675, 164 L.Ed.2d 376 (2006) (district courts). The dissent asserts that appellate courts may excuse the Government’s waiver only if the Government proves that the case is “exceptional.” But that is a misreading of Wood. There, the Supreme Court reaffirmed the general principle that “court[s] may consider a. statute • of limitations or other threshold bar the State failed to raise in answering a habeas petition,” 566 U.S. at 466, 132 S.Ct. 1826 (citations omitted), and only cautioned against doing so if “the State, after expressing its clear and accurate understanding of the timeliness issue, deliberately steer[s] the District Court away from the question and towards the merits,” id. at 474, 132 S.Ct. 1826 (citations omitted). The Court narrowly held in Wood that it was an abuse of, discretion to raise timeliness .sua sponte in that case because “the State twice informed the U.S. District Court that it ‘would not challenge, but [is] not conceding, the timeliness of Wood’s habeas petition,’ ” id. at 465, 132 S.Ct. 1826, thereby evincing clear gamesmanship. That is not the situation here. Assuming arguendo that" }, { "docid": "11382404", "title": "", "text": "or asked that it be subjected to scientific and DNA analysis. This blood evidence was destroyed before being analyzed for DNA but after the trial was complete. If defense counsel had followed up on this evidence at the appropriate time, DNA analysis could have shown that it came from Petitioner, thus aiding a defense that, although he may have been present, Petitioner did not murder Richard Myers and was, himself, wounded during the events that transpired. In reviewing these claims, the district court noted that Henness had never raised them in state court, although he could have presented them during his state post-con-vietion proceedings. Consequently, the court concluded that Henness had procedurally defaulted the claims. Henness, 2007 WL 3284980, at *10, *15-16. As the basis of his Rule 60(b)(6) motion, Henness now argues that recent changes in the law would establish cause to excuse his procedural default. The Supreme Court traditionally has held that a prisoner has no constitutional right to an attorney in state post-conviction proceedings and, consequently, the prisoner cannot claim constitutionally ineffective assistance of counsel in those proceedings. Coleman v. Thompson, 501 U.S. 722, 752, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Further, any inadequate assistance by counsel in state post-conviction proceedings cannot constitute cause to excuse a habeas petitioner’s procedural default of his claims in state court. Id. at 757, 111 S.Ct. 2546. In Martinez v. Ryan, — U.S. -, 132 S.Ct. 1309, 1315, 182 L.Ed.2d 272 (2012), the Supreme Court carved out a “narrow exception” to Coleman, holding that, under some circumstances, ineffective assistance of counsel during initial-review state collateral proceedings can establish cause for a petitioner’s procedural default of an ineffective assistance of trial counsel claim. The petitioner’s procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance of trial counsel if state law required that the claim of ineffective assistance of trial counsel be raised first in an initial-review post-conviction proceeding and no counsel assisted the petitioner during that proceeding or counsel’s assistance in that proceeding was ineffective. Id. at 1320. In Trevino v. Thaler, the" }, { "docid": "19067862", "title": "", "text": "not apply at all to Arthur’s case. In Martinez, a § 2254 petition asserted ineffective-trial-counsel claims. Petitioner Martinez acknowledged that he had not raised those claims in state court and that those claims were barred by the doctrine of procedural default. Nevertheless, Martinez argued that he had “cause” to excuse his default because his first state collateral counsel failed to raise Martinez’s ineffective-trial-counsel claims in his first state collateral petition. The question in Martinez was “whether a federal habeas court may excuse a procedural default of an ineffective-assistance claim when the claim was not properly presented in state court due to an attorney’s errors in an initial-review collateral proceeding.” Martinez, 132 S.Ct. at 1313. After declining to resolve that question on constitutional grounds, the Supreme Court decided Martinez’s case on equitable grounds based on the “cause and prejudice” exception to the procedural default doctrine in federal habeas cases. Id. at 1315, 1319-20. Under the procedural default doctrine, if a state prisoner “defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law....” Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1991) (empha sis added). Under the Supreme Court’s Coleman decision, even if a petitioner “had no right to counsel to pursue his appeal in state habeas” and even if “attorney error ... led to the default of [the petitioner’s] claims in state court,” cause does not exist to excuse the procedural default. Id. at 757, 111 S.Ct. at 2568. In Martinez, the Supreme Court announced a “narrow exception” to Coleman’s procedural default rule in the limited circumstances where a state law “requires a prisoner to raise an ineffective-assistance-of-trial-counsel claim in a collateral proceeding.” Martinez, 132 S.Ct. at 1315, 1318 (emphasis added). Martinez’s narrow exception to Coleman’s general rule applies only where (1) a state requires a prisoner to raise ineffective-trial-counsel claims at the initial-review stage of a state collateral" }, { "docid": "1460544", "title": "", "text": "(5th Cir.2003) (holding the same), cert. denied, 540 U.S. 1163, 124 S.Ct. 1170, 157 L.Ed.2d 1208 (2004); 28 U.S.C. § 2254(e)(1). III. Witherspoon Claim A. The Claim In his first claim for federal habeas relief, petitioner argues the state trial court erroneously granted the prosecution’s challenge for cause to venire member Gerald Becker based on Becker’s personal religious objections to the death penalty. B. State Court Disposition During his voir dire examination, venire member Gerald Becker repeatedly testified he would find it extremely difficult, if not impossible, to vote to impose the death penalty because of his strong religious antipathy toward the death penalty. Becker testified further that while there might be a hypothetical circumstance in which there was a complete and total absence of any mitigating evidence, which would permit him to vote to impose the death penalty, he could not conceive of what such a situation would involve. Eventually, the state trial court sustained the prosecution’s challenge for cause. Petitioner presented no complaint on direct appeal concerning Becker’s exclusion. The state habeas trial court concluded: (1) petitioner procedurally defaulted on his Witherspoon claim by failing to assert it on direct appeal and (2) the state trial court properly excluded Becker for cause based on Becker’s testimony he could not perform his duties as an impartial juror. C.Procedural Default on the Wither-spoon Claim The Texas Court of Criminal Appeals expressly adopted the state habeas trial court’s findings and conclusions, including the conclusion that Gutierrez procedurally defaulted on his Witherspoon claim by failing to present same on direct appeal. Procedural default occurs where (1) a state court clearly and expressly bases its dismissal of a claim on a state procedural rule, and that procedural rule provides an independent and adequate ground for the dismissal, or (2) the petitioner fails to exhaust all available state remedies, and the state court to which he would be re quired to petition would now find the claims procedurally barred. Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 2557 n. 1, 115 L.Ed.2d 640 (1991). In either instance, the petitioner is" }, { "docid": "22378617", "title": "", "text": "begin this analysis by noting that this area of the law has been in flux since Kontrick v. Ryan, 540 U.S. 443, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004), and Eberhart v. United States, 546 U.S. at 12, 126 S.Ct. 403, first indicated the time limitations in the federal rules may not be jurisdictional under some circumstances. As a result, there is limited case law indicating how the courts should enforce those rules which are no longer jurisdictional. The question of whether a court may sua sponte raise timeliness under Rule 4(b) is one of first impression in this circuit and appears to have only been addressed tangentially in other circuits. See Wilburn v. Robinson, 480 F.3d 1140, 1143-48 (D.C.Cir.2007). A Kontrick and Eberhart do not specifically speak to the issue of whether a court may sua sponte raise timeliness under non-jurisdictional federal rules. They generally indicate, however, that claim-processing rules must be raised by the parties. In Kontrick, which involved the time constraints of Bankruptcy Rule 4004 governing when a party must file a complaint objecting to a debtor’s discharge, the party seeking to assert the time bar waited until after the matter had been fully adjudicated on the merits. 540 U.S. at 451, 124 S.Ct. 906. The Court analogized the time bar in the Bankruptcy Rules to affirmative defenses governed by Fed.R.Civ.P. 8(c), stating “under the Bankruptcy Rules as under the Civil Rules, a defense is lost if it is not included in the answer or amended answer.” 540 U.S. at 459, 124 S.Ct. 906. By invoking the affirmative defense provision of the Federal Rules of Civil Procedure, the Court implied that failure to raise a timeliness constraint amounts to a forfeiture of the issue. See Bentley v. Cleveland County Bd. of County Comm’rs, 41 F.3d 600, 604 (10th Cir.1994) (“Failure to plead an affirmative defense results in a waiver of that defense.”). The Court in Kontrick did not address whether the district court could raise Rule 4004 sua sponte. Nevertheless, as courts generally may not raise affirmative defenses sua sponte, Kontrick may imply courts cannot raise time" }, { "docid": "15616258", "title": "", "text": "tolled. The Supreme Court has confirmed that AEDPA’s statute of limitations is not jurisdictional and “does not set forth ‘an inflexible rule requiring dismissal whenever’ its ‘clock has run.’ ” Holland v. Florida, - U.S. -, 130 S.Ct. 2549, 2560, 177 L.Ed.2d 130 (2010) (quoting Day v. McDonough, 547 U.S. 198, 205, 126 S.Ct. 1675, 164 L.Ed.2d 376 (2006)). Rather, the limitations period in § 2241(d) “is subject to equitable tolling in appropriate cases”' — ■ specifically, where the petitioner shows “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Id. at 2560, 2562; see also Doe v. Menefee, 391 F.3d 147, 175 (2d Cir.2004) (“To qualify for [equitable tolling], the petitioner must establish that extraordinary circumstances prevented him from filing his petition on time, and that he acted with reasonable diligence throughout the period he seeks to toll.” (internal quotation marks omitted)). Whether a circumstance is extraordinary depends not on “how unusual the circumstance alleged to warrant tolling is among the universe of prisoners, but rather how severe an obstacle it is for the petitioner endeavoring to comply with AEDPA’s limitations period.” Diaz v. Kelly, 515 F.3d 149, 154 (2d Cir. 2008). “On an appeal from a district court’s denial of equitable tolling, we review findings of fact for clear error and the application of legal standards de novo.” Harper v. Ercole, 648 F.3d 132, 136 (2d Cir .2011). The “extraordinary circumstances” that Rivas points to in this case are: (1) the failure of his state post-conviction counsel, Mitchell Schuman, to file the § 440.10 motion sooner; and (2) the lack of cooperation he received from his trial counsel, Calle, who possessed information essential to Rivas’s habeas claims. We conclude that neither circumstance warrants equitable tolling of the limitations period. Because a lawyer is the agent of his client, the client generally “must ‘bear the risk of attorney error.’ ” Holland, 130 S.Ct. at 2563 (quoting Coleman v. Thompson, 501 U.S. 722, 752-53, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)). Therefore, “a garden variety claim" }, { "docid": "11446278", "title": "", "text": "would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.’ ” Breard, 134 F.3d at 619 (quoting Coleman v. Thompson, 501 U.S. 722, 735 n. *, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)). In a case in the procedural posture present here, a petitioner may overcome both the procedural default and related exhaustion bar by showing cause for the default and actual prejudice arising from the asserted constitutional error. See Breard, 134 F.3d at 620. A petitioner can establish cause by showing “that the factual basis for [the] claim was unavailable to him at the time he filed his state habeas petition.” Breard, 134 F.3d at 620; see McCleskey v. Zant, 499 U.S. 467, 493-94, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991); Williams v. French, 146 F.3d 203, 209 (4th Cir.1998). The district court concluded that Mickens established cause: “Here, Saunders’ silence and state law requirements for secrecy of juvenile court records operated together to preclude Mickens from raising the conflict of interest claims in his state habeas petition.” Mickens v. Greene, 74 F.Supp.2d at 600. The Commonwealth argues that if Mickens’ federal habeas counsel was able to discover Saunders’ prior representation of Hall, then Mickens’ state habeas counsel also could have done so. Virginia law, however, requires juvenile court records to be kept confidential and prohibits their production absent a court order. See Va.Code Ann. § 16.1-305. As the district court found, “the fortuitous circumstances by which federal habeas counsel discovered the truth about Saunders’ conflict prove beyond question that Mickens did not fail in his duty to inquire in the state court proceedings.” Mickens v. Greene, 74 F.Supp.2d at 601 (citing Amadeo v. Zant, 486 U.S. 214, 224, 108 S.Ct. 1771, 100 L.Ed.2d 249 (1988)). It was only through a clerk’s mistake that federal habeas counsel saw Hall’s juvenile court file, and as soon as a supervisor discovered the error, the file was taken from federal habeas counsel. Under these circumstances, we agree with the district court that “the factual predicate for [the conflicts claim] was not" }, { "docid": "23103119", "title": "", "text": "defendant who has demonstrated actual innocence must nevertheless serve the rest of his sentence— possibly the rest of his life — in prison for a crime he did not commit simply because he cannot persuade a court that he acted with sufficient diligence in raising the issue.” Id. In the context of claims that are defaulted based on state procedural rules, the Supreme Court has held that these claims will not be considered “unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (emphasis added) (internal quotation marks and citations omitted). Thus, “in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default.” Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). Similarly, in the context of second and successive petitions, the Supreme Court recognized the miscarriage of justice exception to permit a petitioner asserting a claim of actual innocence to avoid a procedural bar without a showing of cause and prejudice. See Schlup v. Delo, 513 U.S. 298, 317-21, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). Consistent with this Supreme Court precedent, we have indicated in certain unpublished cases that the actual innocence ground for equitable tolling falls under the fundamental miscarriage of justice exception, while the other reasons for equitable tolling — uncontrollable circumstances preventing a petitioner’s filing, despite his diligent efforts, or the petitioner’s filing of a defective petition, despite his active pursuit of judicial remedies — provide an excusable cause for the failure to timely file. See, e.g., Riley v. Snider, 208 F.3d 227, 2000 WL 231833, at *2 (10th Cir.2000) (considering separately whether the petitioner “diligently pursued his petition or was prevented from doing so by an" } ]

[ { "docid": "22717349", "title": "", "text": "WARDLAW, Circuit Judge: Willie Lee Miles (“Miles”) appeals the district court’s dismissal of his 28 U.S.C. § 2254(a) habeas corpus petition as untimely. Miles raises two issues on appeal, only one of which we reach. Miles contends his petition was timely filed under the prison mailbox rule, and in the alternative, that extraordinary circumstances existed sufficient to equitably toll the applicable statute of limitations. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253 and we reverse. I. We review a district court’s decision to dismiss a petition for writ of habeas corpus de novo. See Fields v. Calderon, 125 F.3d 757, 759-60 (9th Cir.1997), cert. denied, - U.S. -, 118 S.Ct. 1826, 140 L.Ed.2d 962 (1998). We also review de novo the district court’s dismissal of Miles’ habeas petition on statute of limitations grounds. See Ellis v. City of San Diego, 176 F.3d 1183, 1188 (9th Cir.1999); Hernandez v. City of El Monte, 138 F.3d 393, 398 (9th Cir.1998). While findings of fact made by the district court are reviewed for clear error, see Moran v. McDaniel, 80 F.3d 1261, 1268 (9th Cir.1996), where, as here, the facts are undisputed as to the question of equitable tolling, we review de novo, see Valenzuela v. Kraft, Inc., 801 F.2d 1170, 1172 (9th Cir.1986). II. The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) became law on April 24, 1996 and imposed for the first time a statute of limitations on habeas petitions filed by state prisoners. See Calderon v. United States Dist. Court (Beeler), 128 F.3d 1283, 1288-89 (9th Cir.1997) [hereinafter “Calderon (Beeler) ”], overruled in part on other grounds by Calderon v. United States Dist. Court (Kelly), 163 F.3d 530 (9th Cir.1998) (en banc), cert. denied, - U.S. -, 119 S.Ct. 1377, 143 L.Ed.2d 535 (1999) [hereinafter “Calderon (Kelly) ”]. We have held that AEDPA’s limitations period did not begin to run against any state prisoner before the date of AEDPA’s enactment. See Calderon (Beeler), 128 F.3d at 1286-87 (rejecting retroactive application of AEDPA’s one-year statute of limitations). Accordingly, a prisoner with a state conviction finalized before" } ]

[ { "docid": "23091240", "title": "", "text": "“[n]one of [the petitioner’s] circumstances, and particularly not his ignorance of the law, can be said to be on a par with those conditions [listed in § 2244(d)(1)(B),(C), and (D)].” Id. at 172-73. This case is distinguishable from Felder, with regard to statutory tolling, in one very important respect — Egerton did not file his habeas petition prior to obtaining a copy of the AEDPA. Thus, unlike in Felder where it was apparent that the inadequate law library did not prevent the petitioner from filing a petition, Egerton did not file his state or federal habeas petitions until after he was transferred to the Rufe Jordan Unit where he claims an adequate law bbrary was available. Thus, we find that the holding in Felder is not dis-positive of our resolution of Egerton’s statutory tolling claim. Cf. Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir.2000) (en banc) (finding that the unavailabibty of the AEDPA in a prison law bbrary may create an “impediment” for purposes of § 2244(d)(1)(B)). In ordering the limited remand to determine “whether Egerton was aware of the existence of AEDPA prior to the expiration of the one year limitation period,” this Court cited to Balawajder v. Johnson, No. 99-10807, 252 F.3d 1357 (5th Cir. Apr.5, 2001) (unpublished) in which this Court found that the lack of a copy of the AED-PA in a prison bbrary was not a state-created impediment under § 2244(d)(1)(B) when the petitioner knew of the AEDPA’s existence. In Balawajder, the petitioner knew of the existence of the AEDPA as evidenced by his affirmative request for a copy of the AEDPA and the fact that the warden had advised him to request the statute from a state library in Austin. Id. at 2-3. Thus, the Court had “no occasion to decide whether § 2244(d)(1)(B) might be invoked by the absence of the AEDPA from a prison library where the prisoner remains actually ignorant of the very existence of the statute” because the petitioner in Balawajder “knew that the AEDPA existed and that it imposed a statute of limitations.” Id. at 3. Our previous" }, { "docid": "23029614", "title": "", "text": "is later. See 28 U.S.C. § 2244(d); Patterson v. Stewart, 251 F.3d 1243, 1245-46 (9th Cir.2001). Although Brown’s conviction became final prior to the passage of AEDPA, the statute’s time limits apply because Brown filed his petition after AEDPA’s effective date. See Calderon v. United States Dist. Court (Beeler), 128 F.3d 1283 (9th Cir.1997), overruled in part on other grounds by Calderon v. United States Dist. Court (Kelly), 163 F.3d 530 (9th Cir.1998); Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir.1999). Absent tolling, Brown thus had until April 24, 1997 — one year from AED-PA’s effective date of April 24, 1996 — to file his petition. See Patterson, 251 F.3d at 1246. However, Brown did not file his petition until November 1999. The state filed a motion to dismiss Brown’s federal habeas petition as untimely on January 21, 2000. On April 21, 2000, a magistrate judge issued findings and a recommendation that the petition be dismissed. On June 21, 2000, Brown objected to the findings, and recommendation, arguing for the first time that the statute should be equitably tolled because he had not been provided adequate access to legal assistance as required by Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977). See Beeler, 128 F.3d at 1288 (9th Cir.1997) (AEDPA’s statute of limitations is subject to equitable tolling). Still proceeding pro se, Brown moved for a discovery order to compel the respondent to produce evidence relevant to equitable tolling. See Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir.2000) (en banc) (holding a district court errs in dismissing a habeas petition without first pursuing factual development of an equitable tolling claim). The state opposed the motion as inappropriate in light of the magistrate’s recommendation that the petition be dismissed. On August 17, 2000, the district court adopted the magistrate’s findings and recommendation in full. The district court’s order stated that the court had conducted a de novo examination of the issues raised in Brown’s objections as required by 28 U.S.C. § 636(b)(1)(C), but it did not mention Brown’s equitable tolling argument. Brown timely appealed" }, { "docid": "7655045", "title": "", "text": "Moreover, the circumstances petitioner describes do not give rise to an impediment of the type described in 28 U.S.C. § 2244(d)(2) (2000). Such impediment might exist where a prison offers inmates an inadequate law library or where a state court simply refuses to rule on a constitutional issue properly before it. See Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir.2000) (library issue); Lackawanna County Disk Attorney v. Coss, 532 U.S. 394, 405, 121 S.Ct. 1567, 149 L.Ed.2d 608 (2001) (O’Connor, J., concurring). Chhoeum seems to indicate that an impediment arose because the Superior Court’s decision was incorrect in light of a new decision from the state’s highest court. However, he fails to show how the action of the Superior Court, even if improper, barred him from effectively pursuing federal relief. Though his actions may have proved an exercise in futility, nothing impeded petitioner from pursuing his claim either through appeal to the Pennsylvania Supreme Court or by filing his habeas petition in federal court. • See Minter v. Beck, 230 F.3d 663, 666 (4th Cir.2000) (finding that while state law, as it existed, would have made petitioner’s efforts futile, it did not impede plaintiff from actually making those efforts). Petitioner’s objection is without merit. Judge Scuderi correctly calculated the statute of limitations. 2. Chhoeum’s case does not warrant application of equitable tolling The Third Circuit has held that AEDPA’s one-year limitations period is not a jurisdictional limitation but a statute of limitations. Therefore, it is also subject to equitable tolling. See Miller v. New Jersey State Department of Corrections, 145 F.3d 616, 618 (3d Cir.1998). Equitable tolling of AEDPA’s limitations period is proper: only when the principle of equity would make the rigid application of a limitation period unfair. Generally, this will occur when the petitioner has in some extraordinary way been prevented from asserting his or her rights. The petitioner must show that he or she exercised reasonable diligence in investigating and bringing [the] claims. Mere excusable neglect is not sufficient. Fahy v. Horn, 240 F.3d 239, 244 (3d Cir.2001). A court may equitably toll the statute of" }, { "docid": "22781712", "title": "", "text": "is incarcerated did not have legal materials describing AEDPA until June 1998. He further stated that he “had no knowledge of any limitations period” prior to December 1998. Respondent was not given — and, given the district court’s holding, did not need — an opportunity to present evidence contradicting petitioner’s statements. The magistrate judge to whom the case was assigned wrote: [T]he Court finds that the failure of the prison officials to stock legal materials containing the amended § 2244(d)(1) until June of 1998, even if true, did not constitute an impediment to the filing of the Petition herein. Petitioner’s two claims essentially are the same claims raised and briefed by him in his California Court of Appeal habeas petition filed on December 5, 1997. Thus, the alleged failure of the prison officials to stock legal materials containing the amended § 2244(d)(1) until June of 1998 had no bearing on petitioner’s ability to research and identify these claims. Put another way, petitioner has made no showing that unconstitutional state action prevented him from exhausting his claims and filing his habeas petition within the limitations period. The district court adopted the report and recommendation of the magistrate judge and dismissed the petition as time-barred. Petitioner timely appealed, and a panel of this court affirmed. See Whalem/Hunt v. Early, 204 F.3d 907 (9th. Cir.2000). We then ordered that the case be reheard en banc and directed that the panel opinion not be cited as precedent. See Whalem/Hunt v. Early, 218 F.3d 1078 (9th Cir.2000). Petitioner argues that his petition is not time-barred under either of two theories. First, he argues that the unavailability of AEDPA in the prison law library before June 1998 was an “impediment” to his filing an application. See 28 U.S.C. § 2244(d)(1)(B). Second, he argues that the unavailability of AEDPA provides grounds for “equitable tolling” of its one-year limitation period. See Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir.1999); Calderon v. United States District Court (Kelly), 163 F.3d 530, 541-42 (9th Cir. 1998); Calderon v. United States District Court (Beeler), 128 F.3d 1283, 1288-89 (9th Cir.1997). We" }, { "docid": "22452286", "title": "", "text": "prison law library to prepare his federal habeas petition. The case was referred to a magistrate judge who recommended that the district court dismiss the petition as time-barred under AEDPA’s statute of limitations. 28 U.S.C. § 2244(d)(1). On de novo review, the district court adopted the magistrate judge’s findings and recommendations and dismissed the petition with prejudice. The district court denied Gaston’s application for a Certificate of Appealability. We granted a Certificate of Appealability on the issue of whether the district court properly dismissed his application as untimely. We review issues of law de novo and findings of fact for clear error. Houston v. Roe, 177 F.3d 901, 905 (9th Cir.1999). II. Discussion Gaston makes three arguments for tolling AEDPA’s statute of limitations. He argues for equitable tolling; for relief due to an unconstitutional state “impediment,” 28 U.S.C. § 2244(d)(1)(B); and for statutory tolling based on “pending” state habeas applications. Id. § 2244(d)(2). We disagree with Gaston’s first two arguments, but we agree with his third. We discuss the arguments in order. A. Equitable Tolling Gaston argues that he is entitled to equitable tolling based on his self-representation on direct appeal and his physical and mental disabilities. “Equitable tolling will not be available in most cases, as extensions of time will only be granted if ‘extraordinary circumstances’ beyond a prisoner’s control make it impossible to file a petition on time.” Calderon v. United States Dist. Ct. for the Centr. Dist. of Cal. (Beeler), 128 F.3d 1283, 1288 (9th Cir.1997), overruled in part on other grounds, Calderon v. United States Dist. Ct. for the Centr. Dist. of Cal. (Kelly), 163 F.3d 530, 540 (9th Cir.1998). Gaston bears the burden of showing that equitable tolling is appropriate. Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir.2002). Gaston has not shown any causal connection between his self-representation on direct appeal and his inability to file a federal habeas application. It is true that his failure to file an appellate brief while he represented himself caused his appeal to be dismissed, but he has not shown that his self-representation on appeal caused him to" }, { "docid": "23029615", "title": "", "text": "statute should be equitably tolled because he had not been provided adequate access to legal assistance as required by Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977). See Beeler, 128 F.3d at 1288 (9th Cir.1997) (AEDPA’s statute of limitations is subject to equitable tolling). Still proceeding pro se, Brown moved for a discovery order to compel the respondent to produce evidence relevant to equitable tolling. See Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir.2000) (en banc) (holding a district court errs in dismissing a habeas petition without first pursuing factual development of an equitable tolling claim). The state opposed the motion as inappropriate in light of the magistrate’s recommendation that the petition be dismissed. On August 17, 2000, the district court adopted the magistrate’s findings and recommendation in full. The district court’s order stated that the court had conducted a de novo examination of the issues raised in Brown’s objections as required by 28 U.S.C. § 636(b)(1)(C), but it did not mention Brown’s equitable tolling argument. Brown timely appealed to this court. We granted a Certificate of Appealability (COA) limited to the issue of “whether the district court erred by failing to address appellant’s equitable tolling issues.” On December 11, 2000, after granting the COA, we appointed counsel for Brown. II Brown argues that the district court erred in failing to consider his equitable tolling claim as part of its de novo review of the magistrate’s findings and recommendation. The state argues, in opposition, that the district court was not required to consider the claim because Brown made it for the first time as an objection to the magistrate judge’s findings and recommendation. See United States v. Howell, 231 F.3d 615, 621-22 (9th Cir.2000). We review the district judge’s decision for abuse of discretion. See id. Section 636(b)(1)(C) of the Federal Magistrates Act provides: A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole" }, { "docid": "22377055", "title": "", "text": "conviction and partially modified his sentence. The California Supreme Court denied his petition for review in September 1992. Petitioner then pursued state habeas relief, beginning with a filing in Sacramento County Superior Court on October 4, 1996. The Superior Court denied the petition on December 4, 1996. On February 3, 1997, petitioner filed an appeal. The California Court of Appeal denied the petition on February 21, and the California Supreme Court eventually denied the petition on May 28, 1997. Petitioner filed his federal habeas petition in April 1998, over five years after the California Supreme Court denied his direct appeal. His appointed counsel on appeal have shown that the AEDPA statute should be statutorily tolled for varying reasons, principally because of the pendency of state habeas proceedings. See Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir.1999). The statutory tolling brings the limitation period to approximately 78 days before the petition was actually filed, a conclusion the state commendably does not seriously dispute. The case therefore turns on equitable tolling. For a petitioner to have the benefit of equitable tolling of the AEDPA statute, we have held that there must be “extraordinary circumstances” beyond the prisoner’s control that made it impossible to file a petition on time. Calderon v. United States District Court (Beeler), 128 F.3d 1283, 1288 (9th Cir.1997). In our more recent en banc pronouncement on the subject, we rejected the argument that lack of access to library materials automatically qualified as grounds for equitable tolling, and we emphasized the importance of a more fact-specific inquiry. Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir.2000)(en banc). In Beeler, a capital habeas corpus case, we held that the statute was equitably tolled when the petitioner’s attorney moved out of the state, a matter over which the petitioner had no control, and that made it impossible for another attorney to file a petition within the statutory limits. In capital cases, an indigent petitioner has a statutory right to counsel. See 21 U.S.C. § 848(q)(4)(B). Thus, the dereliction of his appointed counsel made it impossible for the petitioner to file the" }, { "docid": "18298913", "title": "", "text": "petitioner filed his petition after the one-year period, and the state moved to dismiss the petition. In response, the petitioner claimed that he had inadequate prison library facilities that “lacked the federal materials necessary for him to pursue habeas relief.” Egerton, 334 F.3d at 435. The district court found no basis for statutory or equitable tolling and dismissed the petition as untimely. The Fifth Circuit remanded the case to develop further the record. Id. On remand, the magistrate judge found that “there was ‘no evidence to support a finding that [petitioner] had actual knowledge of the [statute of limitations] prior to the expiration.’ ” Id. at 436. In particular, the magistrate judge noted that the state did not provide any evidence regarding whether the library contained the statute of limitations. Id. With this enhanced record, the Fifth Circuit confronted the question of “whether absence of the [statute of limitations] from the prison law library invokes” statutory tolling under 28 U.S.C. § 2244(d)(1)(B). Id. at 438. The Fifth Circuit concluded that “a state’s failure to provide the materials necessary to prisoners to challenge their convictions or confinement, in this case a copy of the very statute that is being used to render [the petitioner’s] petition time-barred, constitutes an ‘impediment’ for purposes of invoking § 2244[ (d) ](1)(B).” Id. at 438-39. Similarly, in Whalem/Hunt, the petitioner filed his petition after the one-year period, and the state moved to dismiss the petition. In response, the petitioner submitted a declaration “that the law library of the prison in which he is incarcerated did not have legal materials describing” the statute of limitations until after his year had expired. Whalem/Hunt, 233 F.3d at 1147. The district court determined that the petition was untimely and that no tolling was warranted. Id. at 1148. The Ninth Circuit reversed, stating that “[w]e do not agree with the district court that there are no circumstances consistent with petitioner’s petition and declaration under which he would be entitled to a finding of an ‘impediment’ under § 2244(d)(1)(B) or to equitable tolling.” Id. The Ninth Circuit further stated that “[o]n the" }, { "docid": "22136978", "title": "", "text": "have reasonably believed that his filing deadline would be upon him in six days. Such a fleeting period could have made a timely filing by a pro se prisoner literally impossible. See Rand v. Rowland, 154 F.3d 952, 958 (9th Cir.1998) (en banc) (noting that “pro se prisoner litigants ... face[ ] the unique handicaps of incarceration” and that “confinement makes compliance with procedural deadlines difficult because of restrictions on the prisoner’s ability to monitor the lawsuit’s progress” (emphasis in original)). In such a situation, Lott might have reasoned that it would be better to file late and plead the equities of his case rather than not to file at all. Yet, if Lott could have reasonably known that his filing deadline was in fact thirty days later, he might have been able, with proper planning, to guarantee his day in court. Despite the importance of this deadline to his substantive rights, we cannot impute knowledge of the forthcoming Bunney rule to Lott. Even with the benefit of legal training, ready access to legal materials and the aid of four years of additional case law, an informed calculation of Lott’s tolling period evaded both his appointed counsel and the expertise of a federal magistrate judge. The peculiar facts of this case echo our earlier holding in Whalem/Hunt v. Early, 233 F.3d 1146, 1147 (9th Cir.2000) (en banc), when we stated that the grounds for granting equitable or statutory tolling are “highly fact dependant.” In Wha-lem/Hunt, a California state prisoner claimed that his federal habeas petition was entitled to either statutory or equitable tolling because the prison’s law library allegedly contained no legal materials describing the AEDPA (and therefore its one-year limitation period) until June of 1998. The district court had ruled that failure to stock AEDPA legal materials during the relevant filing period did not constitute an impediment or circumstance entitling the petitioner to either equitable or statutory tolling. Id. at 1147-48. However, this court reversed, declaring that “[w]e do not agree with the district court that there are no circumstances consistent with petitioner’s petition and declaration under which he" }, { "docid": "22136979", "title": "", "text": "and the aid of four years of additional case law, an informed calculation of Lott’s tolling period evaded both his appointed counsel and the expertise of a federal magistrate judge. The peculiar facts of this case echo our earlier holding in Whalem/Hunt v. Early, 233 F.3d 1146, 1147 (9th Cir.2000) (en banc), when we stated that the grounds for granting equitable or statutory tolling are “highly fact dependant.” In Wha-lem/Hunt, a California state prisoner claimed that his federal habeas petition was entitled to either statutory or equitable tolling because the prison’s law library allegedly contained no legal materials describing the AEDPA (and therefore its one-year limitation period) until June of 1998. The district court had ruled that failure to stock AEDPA legal materials during the relevant filing period did not constitute an impediment or circumstance entitling the petitioner to either equitable or statutory tolling. Id. at 1147-48. However, this court reversed, declaring that “[w]e do not agree with the district court that there are no circumstances consistent with petitioner’s petition and declaration under which he would be entitled to a finding of an ‘impediment’ under § 2244(d)(1)(B) or equitable tolling.” Id. at 1148. The court therefore remanded for further factual development. With respect to equitable tolling, the result of other Ninth Circuit cases has turned on an examination of detailed facts. For example, in Corjasso v. Ayers, 278 F.3d 874 (9th Cir.2002), we allowed equitable tolling for a prisoner’s habeas petition because the district court had improperly dismissed the petition on the grounds that it had a cover sheet from the wrong judicial district, despite the fact that the prisoner had “whited-out” the word “Northern” and written in “Eastern.” When the problem was corrected by submitting a new cover sheet, the sheet was never appended to the body of the petition, causing further delay and inaction. When the petition was finally reviewed, the district court dismissed it because of unexhausted state claims. However, because of the lengthy delay arriving at the district court’s ruling, the petitioner lost valuable time that would otherwise have been available to exhaust his state remedies." }, { "docid": "23091239", "title": "", "text": "at 263. We concluded that the petitioner had not diligently pursued relief because the “impediment” was removed six months prior to the expiration of the limitations period and he had not timely sought relief. Id. We also noted that “an inadequate law library does not constitute a ‘rare and exceptional’ circumstance warranting equitable tolling.” Id. at n. 3 (citation omitted). The Court in Felder addressed both equitable and statutory tolling doctrines. In Felder, the petitioner advanced an equitable tolling argument that inadequacies in the law library prevented him from discovering the AEDPA’s limitations period. 204 F.3d at 169 & n. 1. We not only rejected this equitable tolling argument, but also determined that the petitioner could not rely on § 2244(d)(1)(B), the state-created impediment exception, because he had filed his petition prior to obtaining a copy of the AEDPA. Id. at 171 n. 9 (“His filing his petition prior to ... the time he alleges he had access to AEDPA, would also appear to make § 2244(d)(1)(B) unavailable to Felder.”). The Court further stated that “[n]one of [the petitioner’s] circumstances, and particularly not his ignorance of the law, can be said to be on a par with those conditions [listed in § 2244(d)(1)(B),(C), and (D)].” Id. at 172-73. This case is distinguishable from Felder, with regard to statutory tolling, in one very important respect — Egerton did not file his habeas petition prior to obtaining a copy of the AEDPA. Thus, unlike in Felder where it was apparent that the inadequate law library did not prevent the petitioner from filing a petition, Egerton did not file his state or federal habeas petitions until after he was transferred to the Rufe Jordan Unit where he claims an adequate law bbrary was available. Thus, we find that the holding in Felder is not dis-positive of our resolution of Egerton’s statutory tolling claim. Cf. Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir.2000) (en banc) (finding that the unavailabibty of the AEDPA in a prison law bbrary may create an “impediment” for purposes of § 2244(d)(1)(B)). In ordering the limited remand to determine" }, { "docid": "22452285", "title": "", "text": "petition on March 29, 1999. The district court dismissed the petition on March 1, 2000, “without prejudice to the petitioner’s right to file a new petition after he has exhausted state remedies with regard to all issues raised therein.” As noted above, the California Supreme Court denied Gaston’s sixth and final state habeas application on June 2, 2000. A few weeks later, on June 20, 2000, Gaston filed his second, current federal habeas petition. In support of his federal petition, Gaston submitted sworn statements and physicians’ evaluations documenting physical and mental disabilities from which he states he suffers. He states that he “hears voices,” that he suffers from severe pain and multiple sclerosis, and that he is paralyzed from the waist down. The record is in conflict as to the extent of these disabilities, but it is undisputed that Ga-ston has been in a wheelchair and on psychoactive medications since at least early 1996. Gaston claims that his physical and mental disabilities have made it difficult to gain access to, and to use effectively, the prison law library to prepare his federal habeas petition. The case was referred to a magistrate judge who recommended that the district court dismiss the petition as time-barred under AEDPA’s statute of limitations. 28 U.S.C. § 2244(d)(1). On de novo review, the district court adopted the magistrate judge’s findings and recommendations and dismissed the petition with prejudice. The district court denied Gaston’s application for a Certificate of Appealability. We granted a Certificate of Appealability on the issue of whether the district court properly dismissed his application as untimely. We review issues of law de novo and findings of fact for clear error. Houston v. Roe, 177 F.3d 901, 905 (9th Cir.1999). II. Discussion Gaston makes three arguments for tolling AEDPA’s statute of limitations. He argues for equitable tolling; for relief due to an unconstitutional state “impediment,” 28 U.S.C. § 2244(d)(1)(B); and for statutory tolling based on “pending” state habeas applications. Id. § 2244(d)(2). We disagree with Gaston’s first two arguments, but we agree with his third. We discuss the arguments in order. A. Equitable Tolling" }, { "docid": "11676395", "title": "", "text": "petition on March 29, 1999. The district court dismissed the petition on March 1, 2000, “without prejudice to the petitioner’s right to file a new petition after he has exhausted state remedies with regard to all issues raised therein.” As noted above, the California Supreme Court denied Gaston’s sixth and final state habeas application on June 2, 2000. A few weeks later, on June 20, 2000, Gaston filed his second, current federal habeas petition. In support of his petition, Gaston submitted sworn statements and physicians’ evaluations documenting physical and mental disabilities from which he states he suffers. He states that he “hears voices,” that he suffers from severe pain and multiple sclerosis, and that he is paralyzed from the waist down. The record is in conflict as to the extent of these disabilities, but it is undisputed that Ga-ston has been in a wheelchair and on psychoactive medications since at least early 1996. Gaston claims that his physical and mental disabilities have made it difficult to gain access to, and to use effectively, the prison law library to prepare his federal habeas petition. The case was referred to a magistrate judge who recommended that the district court dismiss the petition as time barred under AEDPA’s statute of limitations. 28 U.S.C. § 2244(d)(1). On de novo review, the district court adopted the magistrate judge’s findings and recommendations and dismissed the petition with prejudice. The district court denied Gaston’s application for a Certificate of Appealability. We granted a Certificate of Appealability on the issue of whether the district court properly dismissed his application as untimely. We review issues of law de novo and findings of fact for clear error. Houston v. Roe, 177 F.3d 901, 905 (9th Cir. 1999). II. Discussion Gaston makes three arguments for tolling AEDPA’s statute of limitations. He argues for equitable tolling; for statutory tolling due to an unconstitutional state “impediment,” 28 U.S.C. § 2244(d)(1)(B); and for tolling based on “pending” state habeas applications. Id. § 2244(d)(2). We disagree with Gaston’s first two arguments, but we agree with his third. We discuss the arguments in order. A. Equitable" }, { "docid": "23091236", "title": "", "text": "limitations on April 24, 1997.” The district court overruled the State’s objections and entered an order adopting the magistrate judge’s findings on remand. This Court then granted a second COA to determine “whether the inadequacy of [Egerton’s] prisons’ law libraries constituted a state created impediment under § 2244(d)(1)(B).” For the following reasons, we vacate the district court’s dismissal and remand for further proceedings in accordance with this opinion. DISCUSSION In a federal habeas corpus case, we review the district court’s findings of fact for clear error, but decide any questions of law de novo. Barnard v. Collins, 958 F.2d 634, 636 (5th Cir.1992). The AEDPA establishes a one-year statute of limitations for federal habeas proceedings. 28 U.S.C. § 2244(d)(1). The limitations period usually begins to run when the state court judgment becomes final after direct appeal, or the time for seeking such review expires. Id. § 2244(d)(1)(A). For prisoners like Eger-ton, whose state convictions became final before the AEDPA was passed, the limitations period commenced on the AEDPA’s effective date, April 24, 1996. See United States v. Flores, 135 F.3d 1000, 1005 (5th Cir.1998). Thus, absent statutory or equitable tolling, Egerton had until April 24, 1997, to file a petition under § 2254. Section 2244(d)(1)(B) provides for statutory tolling as follows: A 1-year period of limitation shall apply to an application for writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of— (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; In order to invoke § 2244(d)(1)(B), the prisoner must show that: (1) he was prevented from filing a petition (2) by State action (3) in violation of the Constitution or federal law. This Court has also recognized that the AEDPA’s limitations period is not jurisdictional and is subject to equitable tolling. Davis v. Johnson, 158 F.3d 806, 811 (5th Cir.1998). Equitable tolling is" }, { "docid": "18298911", "title": "", "text": "(“AEDPA”), “which imposed a 1-year statute of limitations for filing a federal habeas corpus petition.” Pliler v. Ford, 542 U.S. 225, 230, 124 S.Ct. 2441, 159 L.Ed.2d 338 (2004) (citing 28 U.S.C. § 2244(d)(1)). Under the statute, “a person in custody pursuant to the judgment of a State court” must file his petition within a “1-year period of limitation.” 28 U.S.C. § 2244(d)(1). As a state prisoner, the statute applies to Moore, but Moore concedes that his petition was not filed within the required one-year period. The one-year period is tolled, however, if the state creates an impediment to filing a petition: “The limitation period shall run from the latest of ... the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action.” Id. Moore also claims that he deserves equitable tolling of the limitation period, which is warranted if “extraordinary circumstances outside of the petitioner’s control prevent timely filing of the habeas petition.” Gildon v. Bowen, 384 F.3d 883, 887 (7th Cir.2004) (citation omitted); see also Williams v. Sims, 390 F.3d 958, 959-64 (7th Cir.2004). Regarding statutory tolling, Moore argues that the inadequate prison library constituted a state-created impediment to his filing a petition. This circuit previously stated, “[a]lthough neither § 2244 nor this circuit has defined what constitutes an ‘impediment’ for purposes of § 2244(d)(1)(B), the plain language of the statute makes clear that whatever constitutes an impediment must prevent a prisoner from filing his petition.” Lloyd v. VanNatta, 296 F.3d 630, 633 (7th Cir.2002) (emphasis in original). The Seventh Circuit has yet to decide whether an inadequate library is grounds for statutory tolling as a state-created impediment. The Fifth and Ninth Circuits have addressed this issue; both have held that inadequate law libraries may, but do not necessarily, constitute an impediment qualifying for tolling under section 2244(d)(1)(B). See Egerton v. Cockrell, 334 F.3d 433, 438 (5th Cir.2003); Whalem/Hunt v. Early, 233 F.3d 1146 (9th Cir.2000) (en banc). In Egerton, the" }, { "docid": "22781713", "title": "", "text": "claims and filing his habeas petition within the limitations period. The district court adopted the report and recommendation of the magistrate judge and dismissed the petition as time-barred. Petitioner timely appealed, and a panel of this court affirmed. See Whalem/Hunt v. Early, 204 F.3d 907 (9th. Cir.2000). We then ordered that the case be reheard en banc and directed that the panel opinion not be cited as precedent. See Whalem/Hunt v. Early, 218 F.3d 1078 (9th Cir.2000). Petitioner argues that his petition is not time-barred under either of two theories. First, he argues that the unavailability of AEDPA in the prison law library before June 1998 was an “impediment” to his filing an application. See 28 U.S.C. § 2244(d)(1)(B). Second, he argues that the unavailability of AEDPA provides grounds for “equitable tolling” of its one-year limitation period. See Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir.1999); Calderon v. United States District Court (Kelly), 163 F.3d 530, 541-42 (9th Cir. 1998); Calderon v. United States District Court (Beeler), 128 F.3d 1283, 1288-89 (9th Cir.1997). We do not agree with the district court that there are no circumstances consistent with petitioner’s petition and declaration under which he would be entitled to a finding of an “impediment” under § 2244(d)(1)(B) or to equitable tolling. We therefore reverse the district court’s dismissal of the petition. On the present record, however, we cannot go farther. The district court gave petitioner no opportunity to amend his petition or expand his declaration; respondent was not asked to respond to petitioner’s declaration; and the district court held no evidentiary hearing. Because determinations of whether there was an “impediment” under § 2244(d)(1)(B) and whether there are grounds for equitable tolling are highly fact-dependent, and because the district court is in a better position to develop the facts and assess their legal significance in the first instance, we believe the best course is to remand to the district court for appropriate development of the record. REVERSED and REMANDED. TASHIMA, Circuit Judge, with whom TROTT and BERZON, Circuit Judges, join, concurring: We are all in agreement that this case should" }, { "docid": "22382108", "title": "", "text": "a certificate of appealability “as to the issue whether the district court erred by dismissing the petition as untimely under 28 U.S.C. § 2244(d)(1), including the question whether appellant was entitled to equitable tolling.” We also appointed counsel to represent him in this appeal. II. STANDARD OF REVIEW The dismissal of a petition for writ of habeas corpus as time-barred is reviewed de novo. Brambles, 330 F.3d at 1201. If the facts underlying a claim for equitable tolling are undisputed, the question of whether the statute of limitations should be equitably tolled is also reviewed de novo. Id. Otherwise, findings of fact made by the district court are to be reviewed for clear error. Miles v. Prunty, 187 F.3d 1104, 1105(9th Cir.1999). III. DISCUSSION We have held that the one-year statute of limitations for filing a habeas petition may be equitably tolled if “extraordinary circumstances beyond a prisoner’s control make it impossible to file a petition on time.” Brambles, 330 F.3d at 1202. The prisoner must show that the “extraordinary circumstances” were the cause of his untimeliness.” Stillman v. LaMarque, 319 F.3d 1199, 1203 (9th Cir.2003) (petitioner entitled to equitable tolling “since prison officials’ misconduct proximately caused the late filing.”). Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir.2000)(holding that the prisoner is required “to demonstrate a causal relationship between the extraordinary circumstances on which the claim for equitable tolling rests and the lateness of his filing”). Equitable tolling is justified in few cases, though. “Indeed, the threshold necessary to trigger equitable tolling [under AED-PA] is very high, lest the exceptions swallow the rule.” Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir.2002) (internal quotation marks and citation omitted). Spitsyn “bears the burden of showing that this extraordinary exclusion should apply to him.” Id. Determining whether equitable tolling is warranted is a “fact-specific inquiry.” Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir.2001) (citing Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir.2000) (en banc)). The cases in which we have to date concluded that equitable tolling of the limitations period under AEDPA for filing a habeas petition is appropriate" }, { "docid": "22377548", "title": "", "text": "report and recommendation, which the magistrate judge addressed by minute order before the district court ruled on them, the magistrate judge found that Laws’s claims of illiteracy and mental illness “do not make a convincing case for equitable tolling.” Construing the objections as a motion for a hearing, the magistrate judge denied that request. The district court summarily adopted the magistrate judge’s report and recommendation and denied Laws’s request for a certificate of appealability (COA). A judge of this court granted a COA, limited to Laws’s eligibility for equitable tolling or for an evidentiary hearing thereon. II A We review the district court’s denial of habeas corpus for untimeliness de novo. Herbst v. Cook, 260 F.3d 1039, 1042 (9th Cir.2001). Equitable tolling of the one-year limitations period in 28 U.S.C. § 2244 is available in our circuit, but only when “extraordinary circumstances beyond a prisoner’s control make it impossible to file a petition on time” and “the extraordinary circumstances were the cause of his untimeliness.” Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir.2003) (internal quotation marks and citation omitted). Grounds for equitable tolling under § 2244(d) are “highly fact-dependent.” Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir.2000) (en banc). Whether the limitations period for federal habeas should be equitably tolled for Laws depends on whether his mental illness between April 23, 1996 (when AEDPA came into effect) and May 16, 2000 (when he filed his first state habeas) constituted the kind of extraordinary circumstances beyond his control, making filing impossible, for which equitable tolling is available. We hold that the district court abused its discretion by denying the petition without ordering the development of the factual record on Laws’s eligibility for tolling. B We have already held that a “putative habeas petitioner’s mental incompetency [is] a condition that is, obviously, an extraordinary circumstance beyond the prisoner’s control,” so “mental incompetency justifies equitable tolling” of the AEDPA statute of limitations. Calderon v. United States District Court (Kelly), 163 F.3d 530, 541 (9th Cir.1998) (en banc). We have also suggested that “[t]he firmly entrenched common law right to competence persisting" }, { "docid": "22377549", "title": "", "text": "quotation marks and citation omitted). Grounds for equitable tolling under § 2244(d) are “highly fact-dependent.” Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir.2000) (en banc). Whether the limitations period for federal habeas should be equitably tolled for Laws depends on whether his mental illness between April 23, 1996 (when AEDPA came into effect) and May 16, 2000 (when he filed his first state habeas) constituted the kind of extraordinary circumstances beyond his control, making filing impossible, for which equitable tolling is available. We hold that the district court abused its discretion by denying the petition without ordering the development of the factual record on Laws’s eligibility for tolling. B We have already held that a “putative habeas petitioner’s mental incompetency [is] a condition that is, obviously, an extraordinary circumstance beyond the prisoner’s control,” so “mental incompetency justifies equitable tolling” of the AEDPA statute of limitations. Calderon v. United States District Court (Kelly), 163 F.3d 530, 541 (9th Cir.1998) (en banc). We have also suggested that “[t]he firmly entrenched common law right to competence persisting beyond trial is a strong indicator of a constitutional due process right” to competency in postconviction proceedings or to a stay of proceedings until competence is regained. Rohan ex rel. Gates v. Woodford, 334 F.3d 803, 813 (9th Cir.2003). While Calderon (Kelly) and Rohan were death penalty cases and in different procedural postures from the present one, their basic principle is plainly applicable here: Where a habeas petitioner’s mental incompetence in fact caused him to fail to meet the AEDPA filing deadline, his delay was caused by an “extraordinary circumstance beyond [his] control,” and the deadline should be equitably tolled. Calderon (Kelly) and Rohan were grounded in the federal right to counsel on collateral review of capital sentences. See Rohan, 334 F.3d at 813-14. We do not hold today that there is a right to competency in noncapital postconviction proceedings, nor need we. Rather, our only concern is with the application of the equitable tolling standard applicable to habeas cases, not with whether a noncapital habeas case can go forward once timely filed. For that" }, { "docid": "18298912", "title": "", "text": "timely filing of the habeas petition.” Gildon v. Bowen, 384 F.3d 883, 887 (7th Cir.2004) (citation omitted); see also Williams v. Sims, 390 F.3d 958, 959-64 (7th Cir.2004). Regarding statutory tolling, Moore argues that the inadequate prison library constituted a state-created impediment to his filing a petition. This circuit previously stated, “[a]lthough neither § 2244 nor this circuit has defined what constitutes an ‘impediment’ for purposes of § 2244(d)(1)(B), the plain language of the statute makes clear that whatever constitutes an impediment must prevent a prisoner from filing his petition.” Lloyd v. VanNatta, 296 F.3d 630, 633 (7th Cir.2002) (emphasis in original). The Seventh Circuit has yet to decide whether an inadequate library is grounds for statutory tolling as a state-created impediment. The Fifth and Ninth Circuits have addressed this issue; both have held that inadequate law libraries may, but do not necessarily, constitute an impediment qualifying for tolling under section 2244(d)(1)(B). See Egerton v. Cockrell, 334 F.3d 433, 438 (5th Cir.2003); Whalem/Hunt v. Early, 233 F.3d 1146 (9th Cir.2000) (en banc). In Egerton, the petitioner filed his petition after the one-year period, and the state moved to dismiss the petition. In response, the petitioner claimed that he had inadequate prison library facilities that “lacked the federal materials necessary for him to pursue habeas relief.” Egerton, 334 F.3d at 435. The district court found no basis for statutory or equitable tolling and dismissed the petition as untimely. The Fifth Circuit remanded the case to develop further the record. Id. On remand, the magistrate judge found that “there was ‘no evidence to support a finding that [petitioner] had actual knowledge of the [statute of limitations] prior to the expiration.’ ” Id. at 436. In particular, the magistrate judge noted that the state did not provide any evidence regarding whether the library contained the statute of limitations. Id. With this enhanced record, the Fifth Circuit confronted the question of “whether absence of the [statute of limitations] from the prison law library invokes” statutory tolling under 28 U.S.C. § 2244(d)(1)(B). Id. at 438. The Fifth Circuit concluded that “a state’s failure to provide" } ]

[ { "docid": "15193344", "title": "", "text": "denial of the two-point reduction for acceptance of responsibility. After hearing arguments on these matters, the Court denied both of his motions. The Court relied on his alleged perjury before the grand jury as its principal reason for enhancing his sen tence. As to the acceptance of responsibility, the Court, after a statement from Ransom, denied the reduction, finding that he had not shown sufficient acceptance. II. In order to be granted a two-point reduction for acceptance of responsibility, the defendant must “clearly demonstrate[ ] a recognition and affirmative acceptance of personal responsibility for his criminal conduct....” U.S.S.G. § 3El.l(a) (Nov.1991). While a guilty plea can be sufficient for this reduction, a defendant who has pleaded guilty is not entitled to the reduction as a matter of right. U.S.S.G. § 3El.l(c) (Nov.1991). Under the Guidelines, “the sentencing judge is in a unique position to evaluate a defendant’s acceptance of responsibility. For this reason, the determination of the sentencing judge is entitled to great deference on review and should not be disturbed unless it is without foundation.” United States v. Johnson, 879 F.2d 331, 335 (8th Cir.1989); U.S.S.G. § 3E1.1, n. 5 (Nov.1991). In the present case, we cannot say that the District Court erred when it denied the reduction. Specifically, the defendant referred to the government’s prosecution as “a witch hunt” and added that he “was forced into a position in which [he] had no choice but to go this long.” Statements such as this, coupled with the District Court’s other findings, demonstrate a sufficient basis for denying this reduction. III. The District Court’s ruling on the obstruction-of-justice enhancement presents a more complicated issue. Under U.S.S.G. § 3C1.1 (Nov.1991), “[i]f the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing of the instant offense, increase the offense level by two levels.” The burden is on the government to prove the facts necessary to support this enhancement. United States v. Willis, 940 F.2d 1136, 1140 (8th Cir.1991), cert. denied, — U.S.-, 113 S.Ct. 1411, 122 L.Ed.2d 782 (1993). In" } ]

[ { "docid": "13212850", "title": "", "text": "Wyatt did not raise this argument below. See United States v. Redlin, 983 F.2d 893, 896 (8th Cir.) (sentence may be attacked on grounds raised for first time on appeal only under most exceptional circumstances; district court will not be reversed under those circumstances unless gross miscarriage of justice would otherwise result), cert. denied, — U.S. -, 114 S.Ct. 75, 126 L.Ed.2d 44 (1993). In any event, his argument fails, because he received a one-year probationary sentence and the criminal-damage offense is unlike those offenses that never earn criminal history points. See U.S.S.G. § 4A1.2(c)(l), (c)(2). Finally, Wyatt argues the district court erred in denying him a reduction for acceptance of responsibility under U.S.S.G. § 3E1.1. We review for clear error a district court’s decision to deny such a reduction. United States v. Furlow, 980 F.2d 476, 476 (8th Cir.1992) (en banc), cert. denied, — U.S. -, 113 S.Ct. 2353, 124 L.Ed.2d 261 (1993). We see no clear error here. At sentencing, Wyatt denied that he had engaged in the prior crack transactions assessed against him as relevant conduct. See U.S.S.G. § 3E1.1, comment, (n. 1(a)) (defendant who falsely denies relevant conduct that court determines to be true has acted in manner inconsistent with acceptance of responsibility). Accordingly, we affirm. . The Honorable Stephen N. Limbaugh, United States District Judge for the Eastern District of Missouri." }, { "docid": "12423876", "title": "", "text": "HEANEY, Senior Circuit Judge. Randall Dennis Furlow raises two sentencing issues in this appeal. He claims that the district court erred by (1) denying him a credit for acceptance of responsibility, and (2) enhancing his sentence based on a finding that Furlow was an organizer or leader of criminal activity. A panel of this court agreed with Furlow and vacated Fur-low’s sentence, one judge dissenting. United States v. Furlow, 952 F.2d 171 (8th Cir.1991). We subsequently vacated the panel opinion, and we now affirm the district court. Furlow pleaded guilty to three counts of stealing bank deposits. After the plea but before sentencing, Furlow admitted that he had passed seven forged checks, three of which had formed the basis of the indictment. Furlow also admitted engaging in similar activity in nine other states. Id. at 172. After hearing argument on sentencing issues, the district court added two points to Furlow’s offense level for his role in the offense as an organizer or leader, and declined to credit Furlow for acceptance of responsibility.' Furlow first claims that the district court should have granted him a two-level reduction for acceptance of responsibility. We will not disturb a district court’s decision to deny or grant a credit for acceptance of responsibility unless that decision is clearly erroneous — as with other findings of fact, the district court is in a unique position to evaluate a defendant’s acceptance of responsibility. United States v. Amos, 952 F.2d 992, 995 (8th Cir.1991). The guidelines state that a defendant who enters a guilty plea is not entitled to a sentencing reduction for acceptance of responsibility as a matter of right. U.S.S.G. § 3El.l(c). In the commentary, the application notes enumerate some seven factors that may be considered in determining whether a defendant qualifies for the reduction for acceptance of responsibility. The application notes further state that the entry of a plea of guilty before commencement of trial combined with truthful admission of involvement in the offense and related conduct is significant evidence of acceptance of responsibility. U.S.S.G.- § 3E1.1 application n. 3. It is evident that the" }, { "docid": "8179472", "title": "", "text": "to prove King’s guilt beyond a reasonable doubt in order for him to be found guilty of the crime charged. We hold that the trial court did not abuse its discretion in failing to sustain King’s objection. See United States v. Baker, 855 F.2d 1353, 1362 (8th Cir.1988) (no impermissible shifting of burden of proof where prosecutor’s arguments were a fair comment on the evidence, the jury was instructed that counsel’s statements were not evidence, and the burden of proof remained with the government), cert. denied, 490 U.S. 1069, 109 S.Ct. 2072, 104 L.Ed.2d 636 (1989). King also takes issue with several other comments the prosecutor made in closing argument, but King failed to object to them at trial. We review these comments for plain error. United States v. McMurray, 20 F.3d 831, 834 (8th Cir.1994). King “is entitled to relief only if the error would result in a miscarriage of justice if uncorrected.” United States v. McIntosh, 23 F.3d 1454, 1457 (8th Cir.1994) (internal citations and quotations omitted). “Tf an arguably improper statement made during closing argument is not objected to by defense counsel, we will only reverse under exceptional circumstances.’ ” Eldridge, 984 F.2d at 947 (quoting United States v. Nabors, 761 F.2d 465, 470 (8th Cir.), cert. denied, 474 U.S. 851, 106 S.Ct. 148, 88 L.Ed.2d 123 (1985)). After carefully reviewing the record, we determine that no plain error occurred and no exceptional circumstances exist. C. Reduction for Acceptance of Responsibility King claims that the district court erred at sentencing in determining that he was not entitled to an acceptance of responsibility reduction under U.S.S.G. § 3E1.1. Specifically, King contends that because he confessed to the possession with intent to distribute charge on the day he was arrested and later pleaded guilty to that offense, albeit on the second day of trial, the trial court erred in failing to grant him the reduction. The trial court denied the reduction on the basis that King’s guilty plea to Count I of the indictment did not alleviate the government of its proof because Count II of the indictment required" }, { "docid": "8179475", "title": "", "text": "government to its burden of proof at trial_” U.S.S.G. § 3E1.1, comment, (n. 2); United States v. Amos, 952 F.2d 992, 995 (8th Cir.1991), cert. denied, — U.S. —, 112 S.Ct. 1774, 118 L.Ed.2d 432 (1992). As the trial court noted, the practical effect of King’s guilty plea had little effect on the quantum of evidence the government was required to present. The government was still required to provide the facts surrounding the execution of the search warrant on June 4 to show King’s ability to exercise control over the weapon as well as his inculpatory postarrest statements. Further, the government was not bound by King’s guilty plea to refrain from presenting evidence regarding the drug count. “It is well established in this circuit that as a general rule, the government is not bound by a defendant’s offer to stipulate.” United States v. Hiland, 909 F.2d 1114, 1134 (8th Cir.1990). While putting the government through the rigors of a trial is not a per se bar to a reduction for acceptance of responsibility, the trial court enjoys wide latitude in this area. There was nothing to show that King was entitled to acceptance of responsibility on Count II. After fully reviewing the record, we cannot say that the decision to deny King the reduction for acceptance of responsibility was “without foundation” or clearly erroneous. III. CONCLUSION For the reasons enumerated above, we affirm the judgment of the district court. . The Honorable Stephen N. Limbaugh, United States District Judge for the Eastern District of Missouri. . The Confrontation Clause of the Sixth Amendment provides that \"[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” . King's contention that his rights under the Confrontation Clause were violated by the admission of this testimony is subject to this rule as well. See Watson, 952 F.2d at 987 (holding that out-of-court statements that are offered to explain a police investigation are neither hearsay nor violative of the Confrontation Clause). . Our holding that the admission of the out-of-court statement was harmless error under" }, { "docid": "13212849", "title": "", "text": "damage to property. He renews the argument he made below — that he did not believe he had pleaded guilty to the offense because he thought the state prosecutor had otherwise “resolved” the matter after he agreed to pay for the damage. The government introduced into evidence the certified state conviction, which included a waiver of the right to a trial and to counsel, a statement that the undersigned pleaded guilty, and a judgment ordering court supervision for one year. Wyatt’s signed name appeared twice on these documents, and he acknowledged that the signatures “could be” his. U.S.S.G. § 4Al.l(c). The court did not clearly err in finding that Wyatt had pleaded guilty to the offense. It therefore properly assessed one criminal history point for the conviction under U.S.S.G. § 4Al.l(c). See United States v. Urbizu, 4 F.3d 636, 637 (8th Cir.1993) (application of U.S.S.G. § 4A1.1 reviewed for clear error). Wyatt nevertheless argues — relying on U.S.S.G. § 4A1.2(c) (sentences counted and excluded) — -that the conviction should not earn any criminal history points. Wyatt did not raise this argument below. See United States v. Redlin, 983 F.2d 893, 896 (8th Cir.) (sentence may be attacked on grounds raised for first time on appeal only under most exceptional circumstances; district court will not be reversed under those circumstances unless gross miscarriage of justice would otherwise result), cert. denied, — U.S. -, 114 S.Ct. 75, 126 L.Ed.2d 44 (1993). In any event, his argument fails, because he received a one-year probationary sentence and the criminal-damage offense is unlike those offenses that never earn criminal history points. See U.S.S.G. § 4A1.2(c)(l), (c)(2). Finally, Wyatt argues the district court erred in denying him a reduction for acceptance of responsibility under U.S.S.G. § 3E1.1. We review for clear error a district court’s decision to deny such a reduction. United States v. Furlow, 980 F.2d 476, 476 (8th Cir.1992) (en banc), cert. denied, — U.S. -, 113 S.Ct. 2353, 124 L.Ed.2d 261 (1993). We see no clear error here. At sentencing, Wyatt denied that he had engaged in the prior crack transactions assessed against" }, { "docid": "2249884", "title": "", "text": "between the three counts based on the victim of the crime, we conclude that the Contempt of Court, Use of a False Passport, and Failure to Appear counts all involve substantially the same harm under § 3D1.2(b). Therefore, we hold that the district court improperly failed to group the Contempt of Court, Failure to Appear, and Use of a False Passport counts together. C. Refusal to Grant “Acceptance of Responsibility” Adjustment Reetz argues that the district court committed reversible error when it failed to grant an “acceptance of responsibility” adjustment to his offense level. Reetz argues that he pleaded guilty and cooperated by meeting “with government and private attorneys in an attempt to aid in the recovery of funds for the victims.” Appellant’s Br. at 12; see also U.S.S.G. § 3E1.1 (Nov. 1992). This court will reverse a district court’s denial of an acceptance of responsibility adjustment only if it is clearly erroneous. United States v. Furlow, 980 F.2d 476, 476 (8th Cir.1992) (en banc), cert. denied, — U.S. -, 113 S.Ct. 2353, 124 L.Ed.2d 261 (1993). “[T]he district court is in a unique position to evaluate a defendant’s acceptance of responsibility.” Id. The facts of this case, including Reetz’s flight from custody, support the district court’s decision to deny the “acceptance of responsibility” adjustment. Therefore, we hold that the district court’s denial of Reetz’s adjustment for acceptance of responsibility is not clearly erroneous. D. Two-Fold Enhancement as Double Counting Reetz argues that imposition of an enhancement for both “more than minimal planning” and “abuse of a position of trust” resulted in impermissible double counting. We disagree. This court reviews the district court’s application of the scope of the Sentencing Guidelines de novo. United States v. Werlinger, 894 F.2d 1015, 1016 (8th Cir.1989). This court has upheld an enhancement for both “more than minimal planning” and “position of leadership.” United States v. Willis, 997 F.2d 407, 418-19 (8th Cir.1993), cert. denied, — U.S.-, 114 S.Ct. 704, 126 L.Ed.2d 670 (1994). The Willis court determined that application of both enhancements did not constitute “double counting” because “[t]he two sections consider different" }, { "docid": "7918634", "title": "", "text": "Johnson testified that he and co-defendant Mary Gaona picked up seven grams of heroin on a daily basis from Haro for approximately twenty weeks. Based on this testimony, the district court determined that the appropriate quantity of heroin attributable to Haro to be 980 grams. A district court’s drug quantity determination will not be overturned unless clearly erroneous, and its findings as to the credibility of a witness in making that determination are virtually unreviewable on appeal. United States v. Adipietro, 983 F.2d 1468, 1472 (8th Cir.1993) (quotes and citations omitted). The district court’s determination regarding drug quantity was not clearly erroneous, and we decline to review its assessment concerning the credibility of Jason Johnson, a person it had the opportunity at trial to observe closely. Haro also contends that he is entitled to an acceptance of responsibility reduction under U.S.S.G. § 3E1.1. The district court concluded that this was not one of the rare situations described in U.S.S.G. § 3E1.1, comment, (n. 2) when the reduction is appropriate for a defendant who has gone to trial. The district court also declined to grant the reduction on the basis that Haro “refused to discuss his criminal conduct with the probation officer, an indication that he does not fully accept responsibility for his action.” (Haro Addend, at A-5). We review a district court’s findings of fact with respect to a denial of a motion for an acceptance of responsibility reduction under the clearly erroneous standard. United States v. Miller, 951 F.2d 164 (8th Cir.1991). The acceptance of responsibility reduction is generally “not intended to apply to a defendant who puts the government to its burden of proof at trial....” U.S.S.G. § 3E1.1, comment, (n. 2). In the present case, Haro put the government to its proof by going to trial. We agree with the district court’s assessment that this is not one of the rare cases described in § 3E1.1, comment, (n. 2), and conclude that the district court did not commit any error in denying Haro an acceptance of responsibility reduction. C. El Hani Tony El Hani raises’ six issues" }, { "docid": "22145641", "title": "", "text": "specifically note that “[a] defendant who enters a guilty plea is not entitled to a sentencing reduction ... as a matter of right.” U.S.S.G. § 3El.l(c), and only “[i]n rare situations [may] a defendant clearly demonstrate an acceptance of responsibility ... even though he exercises his constitutional right to a trial” and puts the government to its burden of proof. U.S.S.G. § 3E1.1, comment, (n. 2). United States v. Dahlman, 13 F.3d 1391, 1399 (10th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 1575, 128 L.Ed.2d 218 (1994). Mr. Robertson asserts because he was willing to enter a plea of guilty, see, supra, pp. 1429-30, this evinces his acceptance of responsibility. The district court recognized, however, Mr. Robertson was not willing to plead to the indictment nor did he choose to plead guilty to some of the counts charged in the absence of a plea agreement. In addition, Mr. Robertson made no form of confession, nor did he ever actually admit guilt and accept responsibility prior to his conviction. See United States v. Ochoa-Fabian, 935 F.2d 1139, 1142 (10th Cir.1991) (reduction properly refused defendant who denied essential elements of offense, was convicted at trial, and only afterward admitted guilt and expressed remorse), cert. denied, — U.S. -, 112 S.Ct. 1565, 118 L.Ed.2d 211 (1992). Thus, we conclude the district court did not err in refusing to grant a two-point reduction for acceptance of responsibility. F Mr. Graves argues the district court erred in increasing his base offense level by two points for possession of a weapon under U.S.S.G. § 2Dl.l(b). He argues no evidence was presented indicating any weapon was used as an integral part of drug trafficking or that any weapon was shown to have increased the likelihood of success of any drug trafficking. We review the district court’s factual determination of whether an enhancement for possession of a dangerous weapon is warranted for clear error. United States v. Jackson, 11 F.3d 953, 956 (10th Cir.1993). In United States v. Roederer, 11 F.3d 973 (10th Cir.1993), we recognized “ ‘[w]eapon possession is established [for purposes of § 2Dl.l(b)(l) ]" }, { "docid": "7927564", "title": "", "text": "Menichino, 989 F.2d 438, 441 (11th Cir.1993) (“[I]n a loan application case involving misrepresentation of assets, the loss is the amount of the loan not repaid at the time the offense is discovered, reduced by the amount the lender could recover from collateral.”). B. Downward Adjustment for Acceptance of Responsibility The Government contends that the district court erred in granting Bennett a two-level downward adjustment in his offense level pursuant to U.S.S.G. § 3E1.1 because there is nothing in the record to support its conclusion that Bennett accepted responsibility for his criminal conduct. It insists that, from the time Bennett’s crime was discovered and through his sentencing hearing, Bennett never conceded that he had engaged in bank fraud or expressed any remorse or contrition for his conduct. Furthermore, the Government submits that Bennett’s settlement with Plymouth Federal and Daniel Webster was not a “voluntary payment of restitution,” U.S.S.G. § 3E1.1, comment, (n. 1(c)) (Nov. 1, 1993) (emphasis added), that would entitle Bennett to a downward adjustment in his offense level. Bennett responds that the district court’s decision was justified by his settlement offer and eventual settlement with Plymouth Federal and Daniel Webster prior to conviction, and by his demonstration of contrition and remorse at the sentencing hearing. We cannot agree. Although a district court’s conclusion that a defendant has accepted responsibility “is entitled to great deference on review[,]” U.S.S.G. § 3E1.1, comment, (n. 5) (Nov. 1, 1993); e.g., United States v. Royer, 895 F.2d 28, 29 (1st Cir.1990) (describing “clearly erroneous” standard of review), there must be some articulable basis or foundation for it, e.g., United States v. Amos, 952 F.2d 992, 995 (8th Cir.1991), cert. denied, - U.S. -, 112 S.Ct. 1774, 118 L.Ed.2d 432 (1992). We find no such basis for the district court’s decision. To begin with, U.S.S.G. § 3E1.1 “is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse.” U.S.S.G. § 3E1.1, comment, (n. 2) (Nov. 1, 1993) (footnote" }, { "docid": "8179473", "title": "", "text": "during closing argument is not objected to by defense counsel, we will only reverse under exceptional circumstances.’ ” Eldridge, 984 F.2d at 947 (quoting United States v. Nabors, 761 F.2d 465, 470 (8th Cir.), cert. denied, 474 U.S. 851, 106 S.Ct. 148, 88 L.Ed.2d 123 (1985)). After carefully reviewing the record, we determine that no plain error occurred and no exceptional circumstances exist. C. Reduction for Acceptance of Responsibility King claims that the district court erred at sentencing in determining that he was not entitled to an acceptance of responsibility reduction under U.S.S.G. § 3E1.1. Specifically, King contends that because he confessed to the possession with intent to distribute charge on the day he was arrested and later pleaded guilty to that offense, albeit on the second day of trial, the trial court erred in failing to grant him the reduction. The trial court denied the reduction on the basis that King’s guilty plea to Count I of the indictment did not alleviate the government of its proof because Count II of the indictment required much of the same proof that was required in Count I. We review a district court’s findings of fact with respect to a denial of a motion for acceptance of responsibility under the clearly erroneous standard. United States v. Miller, 951 F.2d 164, 165 (8th Cir.1991). “[T]he district court is in a unique position to evaluate a defendant’s acceptance of responsibility.” United States v. Furlow, 980 F.2d 476, 476 (8th Cir.1992) (en banc), cert. denied, — U.S. —, 113 S.Ct. 2353, 124 L.Ed.2d 261 (1993). We will overturn a trial court’s decision denying an acceptance of responsibility reduction only if “it is without foundation.” United States v. Ransom, 990 F.2d 1011, 1013 (8th Cir.1993) (quoting United States v. Johnson, 879 F.2d 331, 335 (8th Cir.1989)). A defendant is not automatically entitled to the reduction merely as a result of entering a guilty plea. U.S.S.G. § 3E1.1, comment, (n. 3); United States v. Yell, 18 F.3d 581, 584 (8th Cir.1994). The acceptance of responsibility reduction is “not intended to apply to a defendant who puts the" }, { "docid": "8179474", "title": "", "text": "much of the same proof that was required in Count I. We review a district court’s findings of fact with respect to a denial of a motion for acceptance of responsibility under the clearly erroneous standard. United States v. Miller, 951 F.2d 164, 165 (8th Cir.1991). “[T]he district court is in a unique position to evaluate a defendant’s acceptance of responsibility.” United States v. Furlow, 980 F.2d 476, 476 (8th Cir.1992) (en banc), cert. denied, — U.S. —, 113 S.Ct. 2353, 124 L.Ed.2d 261 (1993). We will overturn a trial court’s decision denying an acceptance of responsibility reduction only if “it is without foundation.” United States v. Ransom, 990 F.2d 1011, 1013 (8th Cir.1993) (quoting United States v. Johnson, 879 F.2d 331, 335 (8th Cir.1989)). A defendant is not automatically entitled to the reduction merely as a result of entering a guilty plea. U.S.S.G. § 3E1.1, comment, (n. 3); United States v. Yell, 18 F.3d 581, 584 (8th Cir.1994). The acceptance of responsibility reduction is “not intended to apply to a defendant who puts the government to its burden of proof at trial_” U.S.S.G. § 3E1.1, comment, (n. 2); United States v. Amos, 952 F.2d 992, 995 (8th Cir.1991), cert. denied, — U.S. —, 112 S.Ct. 1774, 118 L.Ed.2d 432 (1992). As the trial court noted, the practical effect of King’s guilty plea had little effect on the quantum of evidence the government was required to present. The government was still required to provide the facts surrounding the execution of the search warrant on June 4 to show King’s ability to exercise control over the weapon as well as his inculpatory postarrest statements. Further, the government was not bound by King’s guilty plea to refrain from presenting evidence regarding the drug count. “It is well established in this circuit that as a general rule, the government is not bound by a defendant’s offer to stipulate.” United States v. Hiland, 909 F.2d 1114, 1134 (8th Cir.1990). While putting the government through the rigors of a trial is not a per se bar to a reduction for acceptance of responsibility, the trial" }, { "docid": "18810782", "title": "", "text": "court thus violated his Fifth Amendment privilege against self-incrimination. We disagree. A district court has discretion to reduce a defendant’s offense level by two levels if the defendant “clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct.” U.S.S.G. § 3El.l(a) (Nov. 1991). This court will reverse a district court’s decision whether to grant a reduction for acceptance of responsibility only for clear error. United States v. Laird, 948 F.2d 444, 447 (8th Cir.1991). The burden of proof is on the defendant to demonstrate acceptance of responsibility for the criminal conduct. See U.S.S.G. § 3El.l(a) (Nov. 1991). We have held in the past that § 3E1.1 does not facially violate the Fifth Amendment. United States v. Lyles, 946 F.2d 78, 81-82 (8th Cir.1991). On the record before us, we do not need to reach the question of whether conditioning the acceptance of responsibility reduction on a defendant answering questions regarding potentially incriminating conduct violates the Fifth Amendment. We find the record clearly supports a foundation for denying the reduction on other grounds. Lublin argues that the amended version of § 3E1.1, which went into effect November 1, 1992, demonstrates that the Sentencing Commission intended the reduction to be granted whenever a defendant admits to the elements of the offense. Under both the 1991 version and the amended version, however, “[a] defendant who enters a guilty plea is not entitled to an adjustment ... as a matter of right.” U.S.S.G. § 3E1.1, comment, (n. 3) (Nov. 1992); U.S.S.G. § 3El.l(c) (Nov. 1991); see United States v. Evidente, 894 F.2d 1000, 1003 (8th Cir.), cert. denied, 495 U.S. 922, 110 S.Ct. 1956, 109 L.Ed.2d 318 (1990). Whether a defendant has accepted responsibility is a factual question, and largely is dependent on a credibility assessment by the sentencing judge. Evidente, 894 F.2d at 1003. We give great deference to the district court’s determination because “[t]he sentencing judge is in a unique position to evaluate a defendant’s acceptance of responsibility.” U.S.S.G. § 3E1.1, comment. (n. 5) (Nov. 1991); see United States v. Big Crow, 898 F.2d 1326, 1330 (8th Cir.1990)." }, { "docid": "880920", "title": "", "text": "See United States v. Dyer, 910 F.2d 530, 533 (8th Cir.), cert. denied, - U.S. -, 111 S.Ct. 276, 112 L.Ed.2d 232, and cert. denied, — U.S. -, 111 S.Ct. 366, 112 L.Ed.2d 329 (1990). Third, the Government contends the district court erroneously granted the defendant a two-level decrease for accepting responsibility under U.S.S.G. § 3E1.1. A sentencing court’s finding of acceptance of responsibility is entitled to great deference and should not be disturbed unless it is clearly erroneous. United States v. Laird, 948 F.2d 444, 446-47 (8th Cir.1991). Nevertheless, the adjustment for acceptance of responsibility is “not intended to apply to a defendant who puts the [Government to its burden of proof at trial by denying the essential factual elements of guilt.” U.S.S.G. § 3E1.1 n. 2; see also United States v. Stuart, 923 F.2d 607, 613 (8th Cir.), cert. denied, — U.S. -, 111 S.Ct. 1599, 113 L.Ed.2d 662, and cert. denied, — U.S. -, 112 S.Ct. 145, 116 L.Ed.2d 111 (1991). In this case, Amos initially pleaded guilty but later withdrew his plea, maintaining at trial that no sexual contact took place. The district court nonetheless held the “adjustment cannot [and] should not be taken away simply because [Amos withdrew his] plea of guilty and [went] to trial.” We disagree. The fact that Amos admitted to the crime and accepted responsibility when he entered his guilty plea became irrelevant once he proceeded to trial and denied the offense. Our review of the record reveals no basis for the adjustment. We thus conclude the district court erroneously granted Amos a two-level decrease for accepting responsibility under U.S.S.G. § SE1.1. Finally, we disagree with the district court’s conclusion that the nature of Amos’s forced sexual assault of the victim permitted a downward departure to an offense level of twenty-seven. A sentencing court may depart downward when it finds mitigating circumstances not adequately taken into consideration by the guidelines. 18 U.S.C. § 3553(b); United States v. Tibesar, 894 F.2d 317, 320 (8th Cir.), cert. denied, — U.S. -, 111 S.Ct. 79, 112 L.Ed.2d 52 (1990). Differences in the severity of" }, { "docid": "22145640", "title": "", "text": "Walker and Mr. Graves. Ms. Toney also testified Mr. Robertson would frequently say Ms. Walker and Mr. Graves owed him money and inquire as to who was working at particular houses and whether they also owed him money. Finally, she testified Mr. Robertson frequently gave her money to do things for him such as bail people out of jail and wire money. In our judgment, this testimony is sufficient to support the district court’s finding Mr. Robertson was the organizer or leader of a criminal organization consisting of five or more participants. 4. Finally, Mr. Robertson alleges the district court erred in refusing to decrease his base offense level by two points for acceptance of responsibility under U.S.S.G. § 3E1.1. District courts have broad discretion to grant or deny the reduction for acceptance of responsibility, U.S.S.G. § 3E1.1 comment (n. 5), and thus, our review is under the clearly erroneous standard. United States v. Jessup, 966 F.2d 1354, 1356 (10th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1398, 122 L.Ed.2d 772 (1993). The guidelines specifically note that “[a] defendant who enters a guilty plea is not entitled to a sentencing reduction ... as a matter of right.” U.S.S.G. § 3El.l(c), and only “[i]n rare situations [may] a defendant clearly demonstrate an acceptance of responsibility ... even though he exercises his constitutional right to a trial” and puts the government to its burden of proof. U.S.S.G. § 3E1.1, comment, (n. 2). United States v. Dahlman, 13 F.3d 1391, 1399 (10th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 1575, 128 L.Ed.2d 218 (1994). Mr. Robertson asserts because he was willing to enter a plea of guilty, see, supra, pp. 1429-30, this evinces his acceptance of responsibility. The district court recognized, however, Mr. Robertson was not willing to plead to the indictment nor did he choose to plead guilty to some of the counts charged in the absence of a plea agreement. In addition, Mr. Robertson made no form of confession, nor did he ever actually admit guilt and accept responsibility prior to his conviction. See United States v. Ochoa-Fabian, 935" }, { "docid": "7937431", "title": "", "text": "PER CURIAM. Gilman Keven Keester appeals his nine-year sentence imposed by the district court after he pleaded guilty to the voluntary manslaughter of his former wife, in violation of 18 U.S.C. §§ 1112 and 1153. For reversal, Keester argues that the district court erred in refusing to grant a reduction for acceptance of responsibility and in departing upward four offense levels from the sentencing range recommended in the presentence report (PSR). We affirm the district court’s judgment for the following reasons. First, because the district court is in a unique position to evaluate acceptance of responsibility, we will not disturb a district court’s decision to deny or grant the reduction unless that decision is clearly erroneous. United States v. Furlow, 980 F.2d 476, 476 (8th Cir.1992) (en banc), cert. denied, — U.S. -, 113 S.Ct. 2353, 124 L.Ed.2d 261 (1993). Although entering a guilty plea and admitting offense conduct constitute significant evidence of accepting responsibility, “this evidence may be outweighed by conduct of the defendant that is inconsistent with such acceptance of responsibility.” U.S.S.G. § 3E1.1, comment, (n. 3). Here, the district court found that Keester inflicted serious injury but did not secure immediate help for the victim, did not accompany the victim to the hospital, and had an extended history of domestic abuse against the victim. We additionally note that (1) the victim previously had been hospitalized due to Keester’s abuse, (2) Keester previously had failed to attend domestic abuse classes as ordered by the tribal court, (3) Keester’s mother and sister did not get the victim to the hospital until the afternoon following the night she was beaten, and (4) Keester changed his story to law enforcement officials several times during the investigation as additional facts came to light. Under these circumstances, we conclude the district court did not clearly err in denying the reduction. We likewise reject Keester’s challenge to the upward departure. A district court may depart from the applicable guidelines range if it finds an aggravating or mitigating circumstance not adequately considered by the Sentencing Commission. 18 U.S.C. § 3553(b); U.S.S.G. § 5K2.0. We review" }, { "docid": "14371676", "title": "", "text": "added). Moreover, a defendant bears the burden of proof on this issue. United States v. Ruth, 946 F.2d 110, 113 (10th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1189, 117 L.Ed.2d 431 (1992). Defendant pleaded guilty to only three counts of a multi-count indictment. As we have previously noted, “a guilty plea to [only part] of a multi-count indictment does not necessarily entitle a defendant to a reduced offense level based on acceptance of responsibility.” Id. The guidelines similarly note that “[a] defendant who enters a guilty plea is not entitled to a sentencing reduction ... as a matter of right,” U.S.S.G. § 3El.l(c), and only “[i]n rare situations [may] a defendant clearly demonstrate an acceptance of responsibility ... even though he exercises his constitutional right to a trial” and puts the government to its burden of proof. U.S.S.G. § 3E1.1, comment, (n. 2). We find none of the four factors listed in section 3742(e) applicable to this case. Nor do we find the district court’s factual findings to be clearly erroneous. Accordingly, under the circumstances of this case, we hold that the trial court did not err in refusing to give Defendant a two-point reduction in his offense level based on his overall acceptance of responsibility. IV. Defendant next contends that the trial court erred in determining his base offense level by utilizing U.S.S.G. § 2D1.1 when determining the weight of marihuana seized. Defendant asserts the actual weight of the marihuana seized was only 753.7 grams, but that his sentence for the marihuana was based on a statutory formula which computed the weight at 4,500 grams by multiplying the number of plants (45) by 100 grams. Defendant asserts this formula is arbitrary and capricious and urges this court to adopt the reasoning in United States v. Streeter, 907 F.2d 781 (8th Cir.1990), overruled on other grounds by United States v. Wise, 976 F.2d 393 (8th Cir.1992), which determined that a court must use the actual weight of the marihuana seized. After setting forth the appropriate base offense level for a particular controlled substance, the Sentencing Guidelines provide as" }, { "docid": "3155441", "title": "", "text": "49 (1st Cir.), cert. denied, 493 U.S. 862, 110 S.Ct. 177, 107 L.Ed.2d 133 (1989), quoted in United States v. Lang, 898 F.2d 1378, 1380 (8th Cir.1990). Considering all the circumstances of this case, we cannot say that the four-point upward departure or the thirty-six-month sentence imposed as a result thereof was unreasonable, or that the district court abused its discretion in making those adjustments and imposing that sentence. III. The presentence report recommended that Passmore’s offense level be reduced by two points to reflect his acceptance of responsibility. U.S.S.G. § 3El.l(a). The district court rejected that recommendation. We review a district court’s refusal to grant a reduction of sentence for acceptance of responsibility under the clearly erroneous standard. United States v. Furlow, 980 F.2d 476 (8th Cir.1992) (en banc). As this court stated in United States v. Allen, 886 F.2d 143, 146 (8th Cir.1989): The sentencing judge is in a unique position to evaluate a defendant’s acceptance of responsibility. His decision to depart or not is entitled to a great deference on review, and will not be disturbed unless it is without foundation. Commentary to § 3E1.1, Section 5. Id. Passmore criticizes the district court for its failure to explain its refusal to follow the presentence report recommendation and contends that without such explanation there is no basis upon which we can uphold the district court’s ruling. We disagree. Passmore originally had pleaded guilty to one count of mail fraud. During the initial sentencing hearing, the court indicated that it intended to depart upwardly from the Guidelines and to deny a reduction in sentence for acceptance of responsibility. At a subsequent motions hearing prior to sentencing, Passmore moved to withdraw his plea, but subsequently sought to withdraw that motion. Although initially Passmore told that court that the reason he wanted to withdraw his plea was because of the emotional stress he was under when he entered the plea, he then agreed with the court’s statement that “[t]he real reason why you wanted to withdraw your plea, then, was not your condition — not the condition which existed on January" }, { "docid": "2021173", "title": "", "text": "3E1.1, comment, (n. 2); United States v. March, 999 F.2d 456, 463 (10th Cir.), cert. denied, — U.S. -, 114 S.Ct. 483, 126 L.Ed.2d 434 (1993); see also United States v. Harrington, 947 F.2d 956, 963 (D.C.Cir.1991) (holding that pretrial drug rehabilitation efforts may indicate acceptance of responsibility even though defendant went to trial). For example, a defendant may admit his factual guilt but go to trial only to challenge the constitutionality or applicability of a statute. See U.S.S.G. § 3E1.1, comment. (n. 2). Portillo-Valenzuela did not go to trial to assert such nonfactual challenges, however. He formally denied factual guilt by pleading not guilty, and forced the government to prove his factual guilt at trial. Portillo-Va-lenzuela’s plea and insistence on trial “brought into question whether he manifested a true remorse for his criminal conduct.” United States v. Ochoa-Fahian, 935 F.2d 1139, 1143 (10th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1565, 118 L.Ed.2d 211 (1992). Despite Portillo-Valenzuela’s pretrial confession, the district court did not clearly err by concluding that forcing the government to prove factual guilt at trial indicated failure to “clearly demonstrate[ ] acceptance of responsibility.” See United States v. Garcia, 987 F.2d 1459, 1461-62 (10th Cir.1993) (sustaining district court’s denial of reduction because defendant forced government to go to trial on all counts, even though he claimed that he admitted responsibility before trial on all but the one count of which he was acquitted); United States v. Davila, 964 F.2d 778, 784 (8th Cir.) (upholding district court’s denial of reduction because defendant pleaded not guilty on all counts and forced government to prove guilt, despite pretrial confession and offer to cooperate), cert. denied, — U.S. -, 113 S.Ct. 438, 121 L.Ed.2d 358 (1992). Portillo-Valenzuela suggests that the government’s proof of his guilt was a mere formality because he did not deny his guilt. But the question is not whether he actively asserted his innocence, but whether he “clearly demonstrate^]” acceptance of his guilt. U.S.S.G. § 3E1.1(a); Chimal, 976 F.2d at 613. Pleading not guilty and requiring the government to prove guilt at trial demonstrate denial of" }, { "docid": "14371675", "title": "", "text": "offense for which there is no applicable sentencing guideline and is plainly unreasonable.” 18 U.S.C. § 3742(e) (1988). We give “due deference to the district court’s application of the guidelines to the facts,” id., while reviewing the application fully for errors of law. United States v. Havens, 910 F.2d 703, 704 (10th Cir.1990). We review the district court’s factual findings under the clearly erroneous standard. Id. The issue of acceptance of responsibility for purposes of downgrading the sentence under the Guidelines is a question of fact subject to the clearly erroneous standard. United States v. Spedalieri, 910 F.2d 707, 712 (10th Cir.1990), cert. denied, 498 U.S. 1030, 111 S.Ct. 687, 112 L.Ed.2d 678 (1991). We will not disturb the trial court’s determination on this issue unless it is without foundation. Id. After reviewing' the record in this ease, we find Defendant’s position unpersuasive. A defendant is entitled to a reduction in offense level only “[i]f the defendant dearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct_” U.S.S.G. § 3El.l(a) (emphasis added). Moreover, a defendant bears the burden of proof on this issue. United States v. Ruth, 946 F.2d 110, 113 (10th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1189, 117 L.Ed.2d 431 (1992). Defendant pleaded guilty to only three counts of a multi-count indictment. As we have previously noted, “a guilty plea to [only part] of a multi-count indictment does not necessarily entitle a defendant to a reduced offense level based on acceptance of responsibility.” Id. The guidelines similarly note that “[a] defendant who enters a guilty plea is not entitled to a sentencing reduction ... as a matter of right,” U.S.S.G. § 3El.l(c), and only “[i]n rare situations [may] a defendant clearly demonstrate an acceptance of responsibility ... even though he exercises his constitutional right to a trial” and puts the government to its burden of proof. U.S.S.G. § 3E1.1, comment, (n. 2). We find none of the four factors listed in section 3742(e) applicable to this case. Nor do we find the district court’s factual findings to be clearly erroneous. Accordingly, under" }, { "docid": "7927565", "title": "", "text": "court’s decision was justified by his settlement offer and eventual settlement with Plymouth Federal and Daniel Webster prior to conviction, and by his demonstration of contrition and remorse at the sentencing hearing. We cannot agree. Although a district court’s conclusion that a defendant has accepted responsibility “is entitled to great deference on review[,]” U.S.S.G. § 3E1.1, comment, (n. 5) (Nov. 1, 1993); e.g., United States v. Royer, 895 F.2d 28, 29 (1st Cir.1990) (describing “clearly erroneous” standard of review), there must be some articulable basis or foundation for it, e.g., United States v. Amos, 952 F.2d 992, 995 (8th Cir.1991), cert. denied, - U.S. -, 112 S.Ct. 1774, 118 L.Ed.2d 432 (1992). We find no such basis for the district court’s decision. To begin with, U.S.S.G. § 3E1.1 “is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse.” U.S.S.G. § 3E1.1, comment, (n. 2) (Nov. 1, 1993) (footnote not in original). Bennett pleaded not guilty to all nine counts and denied “the essential factual elements of [his] guilt.” During his opening statement, Bennett’s counsel asserted and suggested, among other things, that (1) there was nothing “out of the ordinary” about Bennett’s loans, (2) the lending banks were adequately secured, (3) the slumping real estate market, not Bennett’s conduct, caused Plymouth Federal’s losses, and (4) Bennett never had any intent to defraud the banks. Bennett’s counsel reiterated this last point at the very end of his closing argument when he said, “And I suggest no intent to defraud has been shown beyond a reasonable doubt on this evidence.” After he was convicted, Bennett apologized to his family and said that he accepted the verdict, but steadfastly maintained that he had never intended to defraud the banks. At the close of the sentencing hearing, Bennett told the district court: I just want to say ... how sorry I am to have been the force behind the series of events that led to this-trial in February," } ]

[ { "docid": "13455317", "title": "", "text": "information but by notice. United States v. United Mine Workers, 330 U.S. 258, 296, 67 S.Ct. 677, 91 L.Ed. 884 (1947); United States v. DeSimone, 267 F.2d 741, 743 (2d Cir.), vacated as moot, 361 U.S. 125, 80 S.Ct. 253, 4 L.Ed.2d 167 (1959); Bullock v. United States, 265 F.2d 683, 691 (6th Cir.), cert. denied, 360 U.S. 909, 79 S.Ct. 1294, 3 L.Ed.2d 1260 (1959). Rather than being an innovation dispensing with the necessity of an indictment for criminal contempt, Rule 42(b) simply made more explicit the prevailing usages at law governing the procedure to be followed in contempt proceedings. Brown v. United States, 359 U.S. 41, 50, 79 S.Ct. 539, 3 L.Ed.2d 609 (1959), overruled on other grounds, Harris v. United States, 382 U.S. 162, 86 S.Ct. 352, 15 L.Ed.2d 240 (1965); Sacher v. United States, 343 U.S. 1, 72 S.Ct. 451, 96 L.Ed. 717 (1952). Cases which have considered arguments that criminal contempts must be prosecuted upon indictment have uniformly rejected the idea since contempts are not crimes in the constitutional sense. See, e. g., Green v. United States, 356 U.S. 165, 184-85, 78 S.Ct. 632, 2 L.Ed.2d 672 (1958); Yates v. United States, 316 F.2d 718 (10th Cir. 1962); United States v. DeSimone, supra. In fact, proceeding by indictment instead of pursuant to Rule 42(b) might be objectionable as interjecting an “independent body into the criminal contempt process which might interfere with or impede judicial disposition of such matters.” United States v. Bukowski, 435 F.2d 1094, 1099 (7th Cir. 1970), cert. denied, 401 U.S. 911, 91 S.Ct. 874, 27 L.Ed.2d 809 (1971). But see United States v. Mensik, 440 F.2d 1232, 1234 (4th Cir. 1971). However, defendant did not object below to indictment, nor does he present this objection on appeal, except as it might be subsumed in his argument that civil contempt should have been considered. We do not believe this possible defect prejudiced any substantial right of defendant and thus does not constitute plain error requiring our review. Fed.R.Crim.P. 52(b). The Supreme Court has not precisely passed on the question of whether Rule 42(b)" } ]

[ { "docid": "13081809", "title": "", "text": "842 (5th Cir. 1974); Jessup v. Clark, 490 F.2d 1968 (3rd Cir. 1973). Illustrative of such “legal consequences” would be (1) possibly acquiring a criminal record on the federal level (See: 28 U.S.C. § 534), on the state level (Va.Code Ann. § 19.2-388), and for appellant Saul, an attorney, possible disciplinary proceedings due to violation of the consent decree if his conduct were deemed unlawful, dishonest, or unworthy or corrupt or unprofessional (Va. Code Ann. § 54-74(1)). V CONCLUSION For the above reasons, the convictions of the appellants for criminal contempt are accordingly vacated, and the case is remanded to the district court with directions to require the refund of the fines heretofore paid by appellants and to. dismiss the criminal contempt proceedings. VACATED AND REMANDED. . The statutory power of a district court to punish those who violate its orders is contained in 18 U.S.C. § 401(3), which provides: “A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as— “(1) * * * ■<(2) * * * “(3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.” The procedural powers in criminal contempt cases are contained in Rule 42 of the Federal Rules of Criminal Procedure. . The motion for an order to show cause and the show cause order itself directed defendants Duling, Fulton, and Leidinger to “Show Cause . why they [had] not violated the Consent' Decree '. . .No mention was made of “contempt” or of “criminal contempt.” . The other federal causes of action in the nature of civil rights were pleaded under 42 U.S.C. § 1981, 1983 and 1988. While §§ 1981, 1983, and 1988 are silent regarding the right to trial by jury in criminal contempt cases arising under these civil rights statutes, there are certain instances, inapplicable here, which may give rise to a right to trial by jury upon “demand.” For instance, where a party violates a court order, or as here, a consent decree, then 18 U.S.C. § 401(3)" }, { "docid": "23313387", "title": "", "text": "was inextricably interwoven. The trial judge himself felt that all the defendants worked in concert at “baiting the judge” and implicated the two lawyers in this nefarious purpose as is evidenced in the common preface of the contempt certificates. Finally, there is really no necessity to attempt to calculate precisely the potential for bias generated by the conduct of these attorneys. The record reveals that their conduct tended to be productive of actual prejudice toward them on the part of the trial judge. In such a situation it matters not whether the judge’s reaction was understandable or not; Mayberry must govern. Accordingly, while regretting the necessity therefor, we conclude that all 9 contemnors must be tried before another judge. Jury Trial For the reasons given in our opinion in United States v. Seale, supra, each appellant whose sentences aggregated more than 6 months was entitled to a jury trial. Since defendant Lee Weiner received only a 2 months and 18 days sentence, he is not so entitled. Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522, and Cheff v. Schnackenberg, 384 U.S. 373, 86 S.Ct. 1523, 16 L.Ed.2d 629. No indictment was required of any individual, even those whose sentences aggregated more than one year. United States v. Bukowski, 435 F.2d 1094 (7th Cir. 1970), certiorari denied, 401 U.S. 911, 91 S.Ct. 874, 27 L.Ed.2d 809. On remand, the guidelines established in United States v. Seale, supra, will govern. As noted in that companion case, the inferential findings and descriptions contained in the preface and conclusion of the contempt certificate must be deleted in order to avoid the jury’s according them undue weight. In addition, in this case the trial judge’s observations prefatory to many of the individual specifications present the same potential for prejudice, and therefore they also should not be placed before the jury. However, the judge handling this case on remand shall have authority to precede each specification with an introduction necessary to set out the precise offense alleged in the following excerpt from the transcript and to place the conduct depicted therein in" }, { "docid": "16650399", "title": "", "text": "the bench warrant issued by the Court on a related ground, alleging that it charged a violation of 18 U.S.C. § 401, a proposition not set forth in the government’s underlying motion. 18 U.S.C. § 401 provides: Power of court A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as (1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice; (2) Misbehavior of any of its officers in their official transactions; (3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command. June 25, 1948, c. 645, 62 Stat. 701. McN abb’s case falls squarely within the niche defined by section 401(3). Because the federal rule delimiting contempt sanctions for failure to obey a subpoena makes no distinction between civil and criminal contempts, a recalcitrant witness presumably could be charged with criminal contempt pursuant to section 401 and Fed.R. Crim.P. 42(b). See In re Grand Jury Proceedings (Schofield I), supra at 88. Even if the government’s application for a bench warrant should have recited 18 U.S.C. § 401 or the warrant should have confined itself to the specific reference in the motion, such a variance does not void a subsequent, valid conviction. See Gerstein v. Pugh, 420 U.S. 103, 119, 95 S.Ct. 854, 865, 43 L.Ed.2d 54 (1975); United States v. United Mine Workers, 330 U.S. 258, 294, 67 S.Ct. 677, 696, 91 L.Ed. 884 (1947). Quite plausibly, the district judge, presented with a potential witness who wilfully refused to appear, viewed civil contempt proceedings concomitant with the expiration of the grand jury’s term as a futile exercise. Moreover, in United States v. North, 621 F.2d 1255 (3d Cir. 1980) (en banc), which required this Court to engage in a post hoc evaluation of whether a district court was acting on the basis of civil or criminal contempt, we directed that, “[i]n the future, district judges should specify the particular nature of the contempt and the conditions, if any, attached to" }, { "docid": "14803816", "title": "", "text": "Mitchell v. Fiore, 470 F.2d 1149, 1155 (3 Cir. 1972), cert. denied, 411 U.S. 938, 93 S.Ct. 1899, 36 L.Ed.2d 399 (1973); United States v. Bukowski, 435 F.2d 1094, 1110 (7 Cir. 1970), cert. denied, 401 U.S. 911, 91 S.Ct. 874, 27 L.Ed.2d 809 (1971). Although the courts might have required that defendants exhaust their remedies under Rule 35 before seeking review of a contempt sentence, appellate review generally seems to have been afforded without such a requirement. See, e. g., Mitchell v. Fiore, supra 470 F.2d at 1149; In re Chase, 468 F.2d 128 (7 Cir. 1972); United States v. Bukowski, supra 435 F.2d at 1094; United States v. Snyder, 428 F.2d 520 (9 Cir. 1970), cert. denied, 400 U.S. 903, 91 S.Ct. 139, 27 L.Ed.2d 139 (1970); United States v. Leyva, supra 513 F.2d at 774. We decline to impose a requirement on Miller that he move for a reduction of his sentence under Rule 35 prior to appealing his sentence. SUBJECT MATTER JURISDICTION The underlying injunction against Miller resulted from a civil action which was filed by the ICC in its own name, but handled by the United States Attorney. Miller contends 28 U.S.C. §§ 2321-2323 require the action to have been instituted by the Attorney General in the name of the United States. Therefore he argues that the injunction is defective, depriving the district court of subject matter jurisdiction over the contempt charges. 28 U.S.C. §§ 2321-2323 provide in relevant part: § 2321 “(b) The procedure in the district courts in actions to enforce, in whole or in part, any order of the [ICC] . shall be as provided in this chapter.” (Emphasis added.) § 2322 “All actions specified in section 2321 of this title shall be brought by or against the United States.” § 2323 “The Attorney General shall represent the Government in the actions specified in section 2321 of this title . . . Miller’s contention is without merit for two reasons. First, these sections require the Attorney General to institute suit on behalf of the United States only to enforce an order of" }, { "docid": "23313388", "title": "", "text": "1477, 20 L.Ed.2d 522, and Cheff v. Schnackenberg, 384 U.S. 373, 86 S.Ct. 1523, 16 L.Ed.2d 629. No indictment was required of any individual, even those whose sentences aggregated more than one year. United States v. Bukowski, 435 F.2d 1094 (7th Cir. 1970), certiorari denied, 401 U.S. 911, 91 S.Ct. 874, 27 L.Ed.2d 809. On remand, the guidelines established in United States v. Seale, supra, will govern. As noted in that companion case, the inferential findings and descriptions contained in the preface and conclusion of the contempt certificate must be deleted in order to avoid the jury’s according them undue weight. In addition, in this case the trial judge’s observations prefatory to many of the individual specifications present the same potential for prejudice, and therefore they also should not be placed before the jury. However, the judge handling this case on remand shall have authority to precede each specification with an introduction necessary to set out the precise offense alleged in the following excerpt from the transcript and to place the conduct depicted therein in its proper context. If the judge to whom this case is referred for trial decides that the outside limit of a cumulative sentence for any appellant (except Mr. Weiner, who is not entitled to a jury trial by virtue of his short sentence) should be 6 months maximum, a jury trial will not be necessary for him. Legally Insufficient Specifications A. Attorneys. As noted in the companion opinion, United States v. Seale, supra, in order for conduct to be punishable under 18 U.S.C. § 401(1), it must “clearly be shown” that the conduct “actually obstructed the district judge in ‘the performance of judicial duty.’ ” In re McConnell, 370 U.S. 230, 234, 82 S.Ct. 1288, 1291, 8 L.Ed.2d 434; Ex parte Hudgings, 249 U.S. 378, 383, 39 S.Ct. 337, 63 L.Ed. 656. Our opinion in Seale requires, in addition to proof of the requisite wrongful intent, proof that the misbehavior was an “actual and material obstruction.” See Seale, supra, 461 F.2d at 369. Where, as here, the conduct complained of is that of an attorney" }, { "docid": "792212", "title": "", "text": "before an unbiased judge [In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948) ]. Most recently, in Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968), the Supreme Court repudiated the longstanding exemption criminal contempts enjoyed from the constitutional requirements of a jury trial. While it is certainly true that distinctions between contempt and other crimes have eroded, it is not the case, as defendants suggest, that in Bloom the Supreme Court swept away the last justification for according criminal contempt a special status. Before Bloom it had been undisputed that contempt had been treated differently under federal law: “While contempt may be an offense against the law and subject to appropriate punishment, certain it is that since the foundation of our government, proceedings to punish such offenses have been regarded as sui generis and not ‘criminal prosecutions’ within the Sixth Amendment or common understanding.” Myers v. United States, 264 U.S. 95, 44 S.Ct. 272, 68 L.Ed. 577 (1925). This distinction between statutory offenses and the Court’s power to demand compliance with its mandates, United States v. Petito, 671 F.2d 68 (2d Cir.1982), cert. denied, 459 U.S. 824, 103 S.Ct. 56, 74 L.Ed.2d 60 (1982), has been the “doctrinal premise from which analysis of procedural safeguards has proceeded,” United States v. Bukowski, 435 F.2d 1094, 1101 (7th Cir. 1970), cert. denied, 401 U.S. 911, 91 S.Ct. 874, 27 L.Ed.2d 809 (1971), and accordingly, contempt proceedings have been evaluated by the due process standard of “fundamental fairness” rather than under the specific constitutional provisions governing state and federal statutory offenses. Id. at 1101. See also United States v. Martinez, 686 F.2d 334, 343-44 (5th Cir.1982): “criminal contempts have retained their unique status as quasi-criminal sanctions.” Id. at 343. While Bloom left no doubt that contempt defendants are entitled to all fundamental procedural protections, courts since 1968 have rejected the suggestion that Bloom “signalled an abandonment of the doctrine that attributes ‘special constitutional status’ to contempt proceedings.” United States v. Nunn, 622 F.2d 802, 803 (5th Cir. 1980); Bukowski, supra, 435 F.2d at 1100." }, { "docid": "15114216", "title": "", "text": "Hufstedler in In re Federal Grand Jury Witness (Lemieux), 597 F.2d 1166, 1168 (9th Cir. 1979), we may simply say that the views there expressed are foreclosed to us by controlling precedent of this circuit. Without citation of relevant authority, Brummitt also contends that he should have been permitted to make a factual showing of the reality of the threat to him of foreign prosecution that might result from his compelled testimony. As we understand the record, the district court afforded him an opportunity to do so before the court itself in a nonjury hearing, but Brummitt was content to rely upon his proffer — -and, in the light of controlling circuit precedent, we find that this proffer was not sufficient to show more than a speculative and merely abstract fear of foreign prosecution. Brummitt contends that he should have been permitted to present before the jury the reality of his fear of foreign prosecution, as a defense to the charged criminal contempt. However, the contempt was based on his failure to comply with a court order directing him to answer the questions and on the lawfulness of the court’s order “involves a pure question of law whose determination is cognizable by the court and not the jury.” United States v. Bukowski, 435 F.2d 1094, 1108 (7th Cir. 1970), cert. denied, 401 U.S. 911, 91 S.Ct. 874, 27 L.Ed.2d 809 (1971). B. Excessive Sentence on Criminal Contempt Charge Brummitt also contends on appeal that his criminal sentence of five years is excessive. A sentence for criminal contempt (under 18 U.S.C. § 401) is properly reviewable on appeal, United States v. Leyva, 513 F.2d 774, 779 (5th Cir. 1975), where the trial court has abused its discretion, Green v. United States, 356 U.S. 165, 188, 78 S.Ct. 632, 645, 2 L.Ed.2d 672 (1958). Brummitt’s argument that his five year sentence should be reduced as excessive is grounded on prior circuit cases which required the reduction of a thirty-five year sentence, United States v. Leyva, supra, 513 F.2d 774, and a fifteen year sentence for criminal contempt, United States v. Gomez, 553" }, { "docid": "12929563", "title": "", "text": "involved in the punishment of criminal contempt committed in the court’s presence as against a criminal contempt committed against an order or decree of the court. This distinction is illustrated by the procedure followed in Green v. United States, supra, where the latter class of contempt was at issue. In Green, defendants, who were convicted under the Smith Act, were enlarged on bail pending appeal but failed to appear on the date fixed for surrender. After surrendering to the Marshal they were tried under 18 U.S.C. § 401 and 42(b) Fed.R.Crim.P. for wilful disobedience of the surrender order. Rule 42(b) provides that criminal contempts other than those committed in the court’s presence or hearing shall be prosecuted by notice. The rule also states that a defendant is entitled to trial by jury if an Act of Congress so provides. And 18 U.S.C. § 3691, dealing with trial by jury for criminal contempt (see footnote 10 infra) carries forward the procedural distinction between disobedience of court orders and disobedience in the courtroom by providing that the jury trial provision does not apply to courtroom contumacy. In Green, Mr. Justice Black dissented from the majority opinion which inter alia denied the petitioner’s claim to the right to be tried on an indictment and by a jury on the charge of wilfully disobeying a court order, but Mr. Justice Black’s dissent was not directed to the issue of whether disobedience in the courtroom should be punished only after trial by jury. But see Sacher v. United States, supra, 343 U.S. at 20-23, 72 S.Ct. at 460-462 (dissenting opinion). . “The contempt power of American courts is truly sui generis,” to adopt a favorite cliche of our judiciary. “The argument that contempt is of a sui generis nature because it has customarily been treated peculiarly, and that it is treated this way because it is sui generis is of Questionable appeal.” Gold-farb, The Constitution and Contempt of Court, supra at 283, 299. . 18 U.S.C. § 3691 provides: “Jury trial of criminal contempts “Whenever a contempt charged shall consist in willful disobedience of any" }, { "docid": "6869095", "title": "", "text": "and prepare their defense. Moreover, early identification of the proceedings insured that all of the procedural safeguards attaching to a erimi-nal prosecution were afforded appellants. Compare United States v. United Mine Workers, 330 U.S. 258, 295-301, 67 S.Ct. 677, 91 L.Ed. 884 (1947). The language of § 401 itself is, in our opinion, quite clear and definite.' It tersely and concisely provides that a Federal court shall have the power to punish for contempt any person who violates one of its orders. It cannot reasonably be argued that the statute fails to notify persons of the conduct which it prohibits. See United States v. National Dairy Products Corp., 372 U.S. 29, 32-33, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963). Plainly, appellants, who consented to entry of the explicit decree enjoining their sale of DDVP, cannot claim that they were uncertain as to what constituted permissible conduct under § 401 and the injunctive order. To this extent the cases cited and relied upon by appellants afford them no comfort. Nor can it seriously be disputed, appellants’ protestations to the contrary notwithstanding, that § 401 plainly authorizes a criminal sanction. Title 18 of the United States Code, in which § 401 is to be found, is exclusively concerned with defining Federal crimes and Federal criminal procedure, and is appropriately so designated. Moreover, it is well established by the case law that § 401 serves as the general statutory authority for punishment of criminal contempt. See Bloom v. Illinois, 391 U.S. 194, 203-204, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968). We are not persuaded that § 401 is rendered unconstitutionally vague solely because violators of its prohibitions may be subject to civil contempt in addition or as an alternative to criminal contempt. Appellants direct us to no judicial authority to the contrary, and our own research has led to none. There are many instances in our society when individual action may subject the actor to both criminal and civil sanctions. See, e.g., Loss, Securities Regulation Ch. 11C, § 7(b) (2d ed. 1961); Prosser, Torts, § 2 (2d ed. 1955). Whether the conduct will" }, { "docid": "22113290", "title": "", "text": "by a fine of not less than $100 nor more than $5,000, or by imprisonment for not more than one year or by both such fine and imprisonment.” See also 32 Stat; 904, 49 U. S. C. § 47, which provides: “No person shall be prosecuted or be subjected to any penalty or forfeiture for or on. account of an^- transaction, matter, or thing concerning which he may testify or produce evidence; documentary or otherwise, in any proceeding, suit, or prosecution under chapter 1 of this title or any law amendatory thereof or supplemental thereto: Provided, That no person so testifying, shall be exempt from prosecution, or punishment, for perjury committed in so testifying.” The petitioner and his counsel were advised in advance what the procedure was to be. “Mr. Wachtell: The Government's understanding of the nature of this proceeding is this: At this point the grand jury is still merely requesting the assistance of the Court. What the Government’ would request is that if it appears, as will be shown by the testimony of the grand jury reporter, that the witness is persisting in his refusal, the Government will then request of this Court that the Court itself,-in the presence of the grand jury, will put the six questions to the witness and ask him, first, whether he is willing to answer them now, and, second, would he answer them if he were sent back to the grand jury again. And if the witness again refuses here and now in the. physical presence of the Court or persists in his refusal to answer, that the witness be held in summary contempt under Rule 42 (a) of the Federal Rules of Criminal Procedure. “The Court: That is what I propose.” 18 U. S. C. §401 (1). 18 U. S. C. §401. Power of court: “A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as— “(3) Disobedience or resistance to its lawful writ, process, order, rule,,decree, or command.” Rule 42. Criminal Contempt: “(a) SummaRT1'Disposition." }, { "docid": "15991528", "title": "", "text": "was convicted without being notified of the charges he faced. See also North American Coal, 512 F.2d at 244 (holding that Rule 42(b) was not complied with when notice was not provided to all the parties involved in the criminal contempt). We have also held that a court’s decision to hear the reason why an attorney is late does not constitute notice under Rule 42(b). See In re Chandler, 906 F.2d at 250. Granted, the Supreme Court has held that procedural violations of Rule 42(b) do not always require reversal if a defendant has actual knowledge of the real nature of the proceedings. See United States v. United Mine Workers, 330 U.S. 258, 297, 67 S.Ct. 677, 91 L.Ed. 884 (1947) (upholding the criminal contempt judgments against the Union and its president John L. Lewis, even though the district court did not follow the procedure of Rule 42(b)). In fact, one of our sister circuits has held that the contempt conviction of an attorney who failed to appear for trial because of conflicting duties could be sustained under Rule 42(b), despite the fact that the notice requirements of Rule 42(b) were not followed. See United States v. Onu, 730 F.2d 253, 255-56 (5th Cir.1984). Nevertheless, the law in this circuit is clear: Smothers’s situation does not fall under Rule 42(a), and the notice requirements of Rule 42(b) must be followed. Rule 42(b) dictates that the substantive law of criminal contempt be followed before a contempt sanction may be imposed. The law governing the court’s ability to punish Smothers’s conduct is 18 U.S.C. § 401(3). This section grants federal courts the power to punish when there is “disobedience or resistance to its lawful writ, process, order, rule, decree or command.” Criminal contempt is a public wrong, a crime in the ordinary sense. See Bloom v. Illinois, 391 U.S. 194, 201, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968). The following conditions must be met in order to sustain a criminal contempt conviction falling under this statute. First, the court’s “writ, process, order, rule, decree or command” must be resisted or disobeyed 18" }, { "docid": "15114217", "title": "", "text": "court order directing him to answer the questions and on the lawfulness of the court’s order “involves a pure question of law whose determination is cognizable by the court and not the jury.” United States v. Bukowski, 435 F.2d 1094, 1108 (7th Cir. 1970), cert. denied, 401 U.S. 911, 91 S.Ct. 874, 27 L.Ed.2d 809 (1971). B. Excessive Sentence on Criminal Contempt Charge Brummitt also contends on appeal that his criminal sentence of five years is excessive. A sentence for criminal contempt (under 18 U.S.C. § 401) is properly reviewable on appeal, United States v. Leyva, 513 F.2d 774, 779 (5th Cir. 1975), where the trial court has abused its discretion, Green v. United States, 356 U.S. 165, 188, 78 S.Ct. 632, 645, 2 L.Ed.2d 672 (1958). Brummitt’s argument that his five year sentence should be reduced as excessive is grounded on prior circuit cases which required the reduction of a thirty-five year sentence, United States v. Leyva, supra, 513 F.2d 774, and a fifteen year sentence for criminal contempt, United States v. Gomez, 553 F.2d 958, 959 (5th Cir. 1975), to a two-year sentence. In the instant case the defendant was sentenced to one five year term, with credit for the four months served for civil contempt. This sentence is much less severe initially than the sentences first imposed on the defendants in Leyva and Gomez. Considering the fact that the defendant would have been subject to five years imprisonment under 18 U.S.C. § 1510 for obstruction of a criminal investigation into narcotics violations (the effect of Brummitt’s refusal to answer questions was to prevent the investigation and timely prosecution of the criminal financing in Texas of the marijuana importation) or subject to a five year sentence for perjury under 18 U.S.C. § 1621 (if he had testified, but falsely), and in view of Brummitt’s refusal to answer any questions concerning the marijuana transaction itself or his financial backing in the United States, we cannot say that this sentence is an abuse of the trial court’s discretion. Accordingly, we affirm the criminal contempt sentence of five years less credit" }, { "docid": "18894843", "title": "", "text": "United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as.... [d]isobedience or resistance to its lawful writ, process, order, rule, decree, or command.” 18 U.S.C. § 401(3). . Defendant’s response to court's order for briefing filed April 6, 1995 attempts to articulate an argument concerning jury access and due process rights. Although counsel failed to specify the contours of the argument, such procedural protections and constitutional concerns are inapplicable to this case. First, the nature and purpose of the fines imposed on defendant in this civil contempt order fall well short of the boundary that differentiates civil contempt sanctions from criminal contempt sanctions. Second, the procedural posture of this case demonstrates that the sanctions stem from the violation of the per manent injunction rather than a \"back-door” attempt by plaintiffs to seek statutory compensatory damages. The amended complaint sought only equitable remedies and the permanent injunction is a quintessential example of equitable relief. Defendant therefore enjoyed no constitutional right to a jury trial, as this Court noted in the preliminary injunction order filed on February 3, 1995. Defendant subsequently violated the permanent injunction. Plaintiff responded by seeking monetary damages for the violation. Plaintiff's motion to hold defendant in civil contempt and to award sanctions therefore represents a request in response to defendant's violation of the permanent injunction rather than a calculated back-door abridgement of defendant’s constitutional protections and rights. . See, e.g., Rogers v. Webster, 776 F.2d 607, 612 (6th Cir.1985) (\"[w]hile wilfulness is not an element of civil contempt, the contemnor’s state of mind, such as his good faith or his reliance on the advice of counsel, is relevant in mitigation of any penalty”) (citing TWM Mfg. Co., Inc. v. Dura Corp., 722 F.2d 1261, 1273 (6th Cir.1983)). . See also Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 718, 87 S.Ct. 1404, 1407, 18 L.Ed.2d 475 (1967) (\"in a civil contempt action occasioned by willful disobedience of a court order an award of attorney's fees may be authorized as part of the fine" }, { "docid": "22196731", "title": "", "text": "741, 743-44 (2d Cir.), vacated as moot, 361 U.S. [827], 80 S.Ct. 74, 4 L.Ed.2d 70 (1959) (grand jury presentment); Steinert v. United States District Court, 543 F.2d 69, 70-71 (9th Cir. 1976); United States v. Mensik, 440 F.2d 1232 (4th Cir. 1971) (per curiam); United States v. Sternman, 415 F.2d 1165 (6th Cir. 1969), cert. denied, 397 U.S. 907, 90 S.Ct. 903, 25 L.Ed.2d 88 (1970); United States v. Eichhorst, 544 F.2d 1383 (7th Cir. 1976); United States v. Bukowski, 435 F.2d 1094, 1103 (7th Cir. 1970), cert. denied, 401 U.S. 911, 91 S.Ct. 874, 27 L.Ed.2d 809 (1971). Further support for the proposition that contempt is an offense dehors any initiating action by the court is found in the holding and rationale of Pendergast v. United States, 317 U.S. 412, 63 S.Ct. 268, 87 L.Ed. 368 (1943). The Supreme Court there held that a prosecution for contempt was barred by the statute of limitations prohibiting the commencement of prosecutions more than three years after the commission of “any offense.” The defendants in Pendergast perpetrated a fraud on the court, punishable as criminal contempt, during a period ending in February, 1936. The court subsequently learned of the fraud and in May, 1940, referred the matter to the prosecutor for the filing of charges. Pertinent to our instant inquiry is the court’s holding that the period of limitations began to run when the acts occurred and not when the court later initiated action. The offense had occurred at the time of the contumacious act. Were it mandatory that a court act before the prosecutor could proceed, it is entirely conceivable, under Pendergast, that the statute of limitations could fully accrue before the contemnor is subject to charge and arrest. We lend no support to that anomaly The panel noted a decision by the Fourth Circuit that it found of little aid, United States v. Avery, 447 F.2d 978 (4th Cir. 1971) (per curiam), cert. denied, 405 U.S. 930, 92 S.Ct. 984, 30 L.Ed.2d 804 (1972). In Avery the defendant was indicted under 18 U.S.C. § 401 for unauthorized travel outside" }, { "docid": "22196730", "title": "", "text": "District of Nevada, 543 F.2d 69 (9th Cir. 1976); United States v. Avery, 447 F.2d 978 (4th Cir. 1971); United States v. Mensik, 440 F.2d 1232 (4th Cir. 1971). In these cases the indictments were for violations of 18 U.S.C. § 401(3). The prosecutions were commenced without any prior or precipitating action by the court. The final inquiry is whether criminal contempt requires priming or initiating action by the court before a prosecutor or law enforcement officer may act upon the offense. We agree with the Second Circuit’s conclusion that no action by the court is necessary before an indictment for criminal contempt may be handed up, United States v. Morales, 566 F.2d 402, 404 (2nd Cir. 1977): Morales’ contention that criminal contempt may not be prosecuted by indictment unless a judge first refers the matter of the alleged act of contempt to the grand jury lacks merit. Many cases have tacitly or explicitly recognized the power of grand juries to hand down indictments charging criminal contempt. E. g., United States v. DeSimone, 267 F.2d 741, 743-44 (2d Cir.), vacated as moot, 361 U.S. [827], 80 S.Ct. 74, 4 L.Ed.2d 70 (1959) (grand jury presentment); Steinert v. United States District Court, 543 F.2d 69, 70-71 (9th Cir. 1976); United States v. Mensik, 440 F.2d 1232 (4th Cir. 1971) (per curiam); United States v. Sternman, 415 F.2d 1165 (6th Cir. 1969), cert. denied, 397 U.S. 907, 90 S.Ct. 903, 25 L.Ed.2d 88 (1970); United States v. Eichhorst, 544 F.2d 1383 (7th Cir. 1976); United States v. Bukowski, 435 F.2d 1094, 1103 (7th Cir. 1970), cert. denied, 401 U.S. 911, 91 S.Ct. 874, 27 L.Ed.2d 809 (1971). Further support for the proposition that contempt is an offense dehors any initiating action by the court is found in the holding and rationale of Pendergast v. United States, 317 U.S. 412, 63 S.Ct. 268, 87 L.Ed. 368 (1943). The Supreme Court there held that a prosecution for contempt was barred by the statute of limitations prohibiting the commencement of prosecutions more than three years after the commission of “any offense.” The defendants in Pendergast" }, { "docid": "22164932", "title": "", "text": "to inquire into the basis for Seale’s dissatisfaction with his counsel of record other than Garry. However, because such an inquiry might have found the facts to be at odds with Seale’s allegations or conceivably have yielded a justifiable conclusion on the part of the trial judge that Seale was manipulating his constitutional right to counsel or right to represent himself in order to delay and disrupt the proceedings, we cannot say from our vantage point that Seale had unequivocal rights to be represented by Garry or to represent himself and that these rights were denied. Assuming these rights were wrongfully denied, it is clear that such error, and certainly the one the trial judge did commit, would not justify contumacious conduct. It is well settled that the invalidity of a court order is not generally a defense in a criminal contempt proceeding alleging its disobedience. Walker v. City of Birmingham, 388 U.S. 307, 87 S.Ct. 1824, 18 L.Ed.2d 1210; United States v. United Mine Workers, 330 U.S. 258, 293-294, 67 S.Ct. 677, 91 L.Ed. 884; Howat v. Kansas, 258 U.S. 181, 189-190, 42 S.Ct. 277, 66 L.Ed. 550; United States v. Bukowski, 435 F.2d 1094, 1108 (7th Cir. 1970), certiorari denied, 401 U.S. 911, 91 S.Ct. 874, 27 L.Ed.2d 809; United States v. Hammond, 419 F.2d 166, 168 (4th Cir. 1969); United States v. Tijerina, 412 F.2d 661, 666 (10th Cir.), certiorari denied, 396 U.S. 990, 90 S.Ct. 478, 24 L.Ed.2d 452 (1969). Of course this principle applies to defeat any contention that obstructive and disruptive courtroom conduct is excused because it protests an erroneous ruling. Perhaps the most recent pronouncement to that effect is in Illinois v. Allen, 397 U.S. 337, 346-347, 90 S.Ct. 1057, 1062, 25 L.Ed.2d 353, where Mr. Justice Black, in delivering the opinion of the Court, observed that courts are bound to make some errors but errors do not justify a defendant’s infection of courtroom proceedings “with the sort of scurrilous, abusive language and conduct paraded before the Illinois trial judge in this case.” There Allen was insisting on his Sixth Amend ment rights," }, { "docid": "12070033", "title": "", "text": "decide, and determined, citing United States v. Berardi, 629 F.2d 723, 729 (2d Cir.), cert. denied, 449 U.S. 995, 101 S.Ct. 534, 66 L.Ed.2d 293 (1980), that “ ‘[m]ateriality is ... demonstrated if the question posed is such that a truthful answer could help the inquiry, or a false response hinder it, and these effects are weighed in terms of potentiality rather than probability.’ ” The court then found that the element was met, since “a truthful answer ... could have tended to undermine Guariglia’s credibility, and thus could have helped the inquiry on which the jury was embarked....” A jury convicted Guariglia on the contempt and perjury charges, but not on the charge of making false statements to prosecutors. The jury apparently rejected Guariglia’s claim that he did not gamble with the chips that he had purchased. For the reasons set forth below, we affirm the judgment of conviction entered in the district court. DISCUSSION I. The district court’s exercise of jurisdiction The federal contempt statute, 18 U.S.C. § 401, provides: A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as— ****** (3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command. Guariglia argues that, under this statute, the district court did not have the authority to sanction him for violation of the Order of the bankruptcy court. He asserts that the plain language of section 401(3) — providing the court with the power to punish for disobedience of “its” order — requires that the court sanctioning the defendant be the same court which issued the order that is the basis for the contempt. Guariglia contends that Bankruptcy Rule 9020 prescribes the contempt procedure to be followed for contempt of the bankruptcy court Order, and that this Rule requires that the issue first be submitted to the bankruptcy court for a hearing and determination, with the opportunity for de novo review in the district court. We do not agree. Section 151, Title 28 of the United States Code," }, { "docid": "15295710", "title": "", "text": "266 U.S. 42, 64-67, 45 S.Ct. 18, 69 L.Ed. 162. And as Mr. Justice Lamar was moved to observe in the Gompers case, supra, 221 U.S. at page 450, 31 S.Ct. at page 501, “if, upon examination of the record, it should appear that the defendants were in fact and in law guilty of the contempt charged, there could be no more important duty than to render such a decree as would serve to vindicate the jurisdiction and authority of courts to enforce orders and to punish acts of disobedience. For while it is sparingly to be used, yet the power of courts to punish for contempts is a necessary and integral part of the independence of the judiciary, and is absolutely essential to the performance of the duties imposed on them by law. * * * If a party can make himself a judge of the validity of orders which have been issued, and by his own act of disobedience set them aside, then are the courts impotent, and what the Constitution now fittingly calls the ‘judicial power of the United States’ would be a mere mockery.” For the reasons stated, the motion to invoke the criminal power of this court to punish the defendant Yates for contempt pursuant to 18 U.S.C. § 401 and Rule 42(a) of the Federal Rules of Criminal Procedure is granted. A certificate of criminal contempt will be filed as provided in Rule 42 (a), and an appropriate term of imprisonment imposed. Appendix Certificate, Order and Judgment of Contempt In conformity with Rule 42(a) of the Federal Rules of Criminal Procedure I hereby certify that on June 26, 1952 the series of contempts hereinafter set forth, consisting of the refusal of the defendant Oleta O’Connor Yates to answer proper and relevant questions put to her on cross-examination, were committed in the actual presence of the court and were seen and heard by the court during the trial of the case entitled U. S. v. Schneiderman, D.C., 106 F.Supp. 906. Specification No. 1 “Q. At any time since you have been a member of the" }, { "docid": "14433813", "title": "", "text": "case. In United States v. Kismetoglu, 476 F.2d 269, 270 n. 1 (9th Cir.) (per curiam), cert. dismissed, 410 U.S. 976, 93 S.Ct. 1454, 35 L.Ed.2d 709 (1973), we held that the government’s appeal of an order enjoining it from filing a forfeiture action against an acquitted defendant in a criminal ease was subject to the civil appeal provisions in Fed.R.App.P. 4(a) because “[although incorporated in a judgment in a criminal proceeding, the injunction appealed from [was] civil in na-ture_” Conversely, in Yasui v. United States, 112 F.2d 1496,1499 (9th Cir.1985), we declined to apply the civil time limit to a notice of appeal of a denial of a post-sentence petition for writ of error coram nobis which alleged that the curfew law under which the petitioner had been convicted was unconstitutional. Our reason was that the petition constituted “a step in the criminal case” in light of its purpose of “setting aside [ ] the petitioner’s criminal indictment and conviction.” We distinguished appeals of rulings on 28 U.S.C. § 2255 motions to set aside criminal convictions, which are statutorily governed by the civil appeal provision, on the ground that “28 U.S.C. § 2255 ... establishes a special, statutory remedy with its own particular procedural requirements and limitations, and explicitly authorizes the taking of appeals as in habeas corpus cases. No such structure surrounds the coram nobis writ.” Id. Taken together, Kismetoglu and Yasui indicate that even in a criminal case where a civil order, which does not constitute a “step in the criminal case,” is appealed from, the civil time limits in Rule 4(a) apply. In the instant case, the INS appeals an order directed against it, which, as to it, constitutes a civil action or proceeding. See, e.g., In re Grand Jury Proceedings, 894 F.2d 881, 882 (7th Cir.1989) (“A federal civil contempt proceeding is a civil proceeding governed by the rules of civil procedure.”); Rogers v. Webster, 776 F.2d 607, 610 (6th Cir.1985) (“Civil contempt is a civil action and governed by the Federal Rules of Civil Procedure.”). It was not a party in the criminal ease." }, { "docid": "792213", "title": "", "text": "power to demand compliance with its mandates, United States v. Petito, 671 F.2d 68 (2d Cir.1982), cert. denied, 459 U.S. 824, 103 S.Ct. 56, 74 L.Ed.2d 60 (1982), has been the “doctrinal premise from which analysis of procedural safeguards has proceeded,” United States v. Bukowski, 435 F.2d 1094, 1101 (7th Cir. 1970), cert. denied, 401 U.S. 911, 91 S.Ct. 874, 27 L.Ed.2d 809 (1971), and accordingly, contempt proceedings have been evaluated by the due process standard of “fundamental fairness” rather than under the specific constitutional provisions governing state and federal statutory offenses. Id. at 1101. See also United States v. Martinez, 686 F.2d 334, 343-44 (5th Cir.1982): “criminal contempts have retained their unique status as quasi-criminal sanctions.” Id. at 343. While Bloom left no doubt that contempt defendants are entitled to all fundamental procedural protections, courts since 1968 have rejected the suggestion that Bloom “signalled an abandonment of the doctrine that attributes ‘special constitutional status’ to contempt proceedings.” United States v. Nunn, 622 F.2d 802, 803 (5th Cir. 1980); Bukowski, supra, 435 F.2d at 1100. Nor is this Court precluded from continuing to weigh, in addressing defendants’ challenges to particular aspects of the instant contempt proceeding, the considerations of efficiency, cost and the public interest in vindicating the Court’s authority which courts have cited in support of the special procedures provided for in Rule 42. Musidor, supra, 658 F.2d at 65; Universal City Studios, supra, 705 F.2d at 96; Nunn, supra, 622 F.2d at 804. The procedure provided for in Rule 42 includes the appointment of an attorney of record to prosecute an alleged contempt. The fact that in general the appointment of the attorneys of record in the prior civil case was perfectly proper does not, of course, free us from the duty to address defendants challenges to the extent of the authority given those attorneys by Judge Lasker’s order of appointment, or consider whether Mr. Bainton’s activities, once vested with special prosecutor status, have in some way violated defendants’ due process rights. Defendants contend that Judge Lasker’s order of March 31, 1983 granted Vuitton’s civil attorneys greater authority" } ]

[ { "docid": "3837675", "title": "", "text": "and paraprofessionals are within the range of hourly rates charged for similar services by other attorneys and paraprofessionals in this legal community of comparable skill, experience and reputation. Norman, 836 F.2d at 1303. Reasonableness of Hours Expended and Expenses Incurred. The necessity of the services performed generally determines what constitutes reasonably expended hours. In the present case, applicant seeks allowance of fees of $97,066.50 for 813.5 hours billed and reimbursement of expenses of $7,558.84. The provisions of § 506(b) and the security documents of claimant were intended to make the oversecured creditor whole. Since neither the oversecured creditor nor counsel are under a duty to account to the debtor, a problem is created because the selector and user of the services is divorced from the payor of the services. This presents an untenable situation but for the statutory requirement that such services be reasonable and necessary to protect the creditor’s interest. However legitimate the services, if they are not necessary to protect the creditor’s interest, they should not be charged to the debtor, notwithstanding what contractual documents and state law may provide. In re Centre Court Apts., Ltd.., 85 B.R. 651, 660-61 (Bankr.N.D.Ga.1988); Curtis v. Pilgrim Health and Life Ins. Co., (In re Curtis), 83 B.R. 853, 861 (Bankr.S.D.Ga.1988). Although free to pursue any and all bona fide actions against the debtor, such creditor is not entitled to compensation for all possible legal activities that may be associated with the debtor and thereby impede the debtor’s ability to reorganize. Masnorth, 36 B.R. at 339. The overse-cured creditor is only entitled to payment of those services reasonably required to protect its interest in its loan. The principal disputes of this case were claimant’s objection to debtor’s discovery of its national “troubled-loan” criteria, objection to debtor’s proposed plan interest rate and objection to confirmation of debtor’s plan. Although of some complexity, these issues did not warrant the amount of time and services spent by applicant. As an oversecured creditor, there has never been any serious contention that claimant’s interests were not fully protected at all times. The difficulty with this applicant’s services" } ]

[ { "docid": "5466808", "title": "", "text": "Chapter 11 Plan). See also In re Gwyn, 150 B.R. 150 (Bankr.M.D.N.C.1993). Accordingly, we conclude that the allowed amount of Citicorp’s fees and expenses must be determined under § 506(b). II. Amount of Reasonable Fees, Costs or Charges The starting point for our analysis is § 506(b) which provides: (b) To the extent that an allowed secured claim is secured by property the value of which, after any recovery under subsection (e) of this section, is greater than the amount of such claim, there shall be allowed to the holder of such claim, interest on such claim, and any reasonable fees, costs, or charges provided for under the agreement under which such claim arose. 11 U.S.C. § 506(b). Citicorp seeks reimbursement of a total of $25,041.12 for attorney’s fees, expenses, and for payments it made to the first mortgagee. The amount sought for expenses, $729.00, is minimal and covers the cost of two appraisals completed on Citicorp’s behalf. We find that the requested expenses are reasonable. Citicorp seeks reimbursement of $11,-729.43 which it paid to the first mortgage holder. The Mortgage expressly authorizes Citicorp to make such payments. Citicorp has provided a copy of a canceled check reflecting payment of $10,387.28 to the first mortgagee and an Affidavit from a Citicorp employee as to an additional payment in the amount of $1,342.05. The Debtor has not denied that such payments were made. We find that such payments are reimbursable. The amount of the request for attorney’s fees is more troublesome. The amount requested has varied throughout this proceeding. The present request is for $12,-582.69. Citicorp originally engaged the law firm of Fried and Fishman in 1992 at about the time the Debtor filed one of his prior bankruptcies in Florida. Fried and Fishman pursued a motion for relief from the automatic stay in the Florida bankruptcy and then proceeded with a foreclosure action which apparently was stayed upon the filing of the present bankruptcy. Fried and Fishman charged Ci-ticorp $1,906.35 for their efforts which apparently ceased in December, 1993. Included in Fried and Fishman’s billings are expenses for filing fees," }, { "docid": "8687740", "title": "", "text": "inherently provides protection of the claim. Thus, the creditor is only entitled to include services reasonably required to protect its interest in the loan. In re Villa Capri ofGa. Assoc. Ltd., 141 B.R. 257, 263 (Bankr.N.D.Ga.1992). Overzealousness will not be compensated, even if the creditor approves of such action by its counsel. In re Huhn, 145 B.R. 872, 877 (W.D.Mich.1992). If fees are not permitted as part of the secured claim, the attorney may still be compensated by the creditor/client. In this case, application of the lodestar analysis is impossible. Although the entries are detailed, the Brown Drew application is not segregated by task. Rather, each day’s services are lumped together with a total number of hours and fees calculated. However, the hourly rates charged are reasonable, i.e., $125 per hour for the Fasse firm and $185 per hour charged by Brown Drew. Taking the objections in reverse order, the court believes the fees incurred in preparing documentation for the title company to facilitate closing the sale transaction were completely justified. Those fees, from November 15, 2004 forward, total $8,845. For whatever reason, the debtor effectively abdicated its responsibility to Brown Drew and counsel for Sanford’s. Had Jemps been legitimately concerned about the costs of closing the sale, Jemps would have cooperated to that end or performed the work itself. The remainder of the fees incurred were for services performed for CBT during the chapter 11 reorganization process. They total $82,329.51 for Brown Drew and $27,880.95 for Fasse. The services billed included noncom-pensable items such as many “Search PACER system and download docket report,” entries that are clerical in nature. The services include what appears to be duplication of effort between the firms, such as Fasse: “Review and final objections to disclosure statement” & Brown Drew: “Draft and preparation of objection of Bank to adequacy of proposed disclosure statement.” There are charges by both firms for inter-office telephone conferences which may or may not have been necessary. The extent of the Fasse firm’s involvement was excessive, given that CBT had hired bankruptcy counsel after the chapter 11 case was filed." }, { "docid": "13875176", "title": "", "text": "Petition for relief pursuant to Chapter 11 of the Bankruptcy Code. Following time extensions, the Debtor consented to the entry of an Order for Relief on June 25, 1991, and has continued as a Debtor-in-Possession since that time. Employment of L & W, as counsel for Smith Barney, Harris Upham & Co. (“Smith Barney”), was authorized by this Court’s Order dated August 29,1991, nunc pro tunc February 27, 1991 which provided, in part, that “Smith Barney is autho rized to retain the law firm of Latham & Watkins as Smith Barney’s counsel, effective as of June 11, 1991, for the limited purpose of advising Smith Barney in connection with the application for Smith Barney’s retention and matters pertinent thereto, including, inter alia, retention proceedings through the date of this Order and fee applications and other filings that Smith Barney may be required to make with this Court, and that all the fees and expenses of Latham & Watkins are subject to the Compensation Order.” The instant Application (as slightly amended by the Supplemental Application) requests reimbursement of $4,105.02 in expenses and approval of $43,888.25 in fees calculated as follows: II. GENERAL CONSIDERATIONS. Principles Governing Fee Applications. Section 330 of the Bankruptcy Code governs compensation of professionals in the bankruptcy context. That section provides, in essence, that a court may award to professionals, [Reasonable compensation for actual, necessary services ... based on the nature, the extent, and the value of such services, the time spent on such services and the cost of comparable services other than in a case under this title. 11 U.S.C. § 330. In order to determine the appropriate compensation, Rule 2016, Fed.R.Bankr.P., requires that, A person seeking interim or final compensation for services, or reimbursement of necessary expenses, from the estate shall file with the court an application setting forth a detailed statement of (1) the services rendered, time expended and expenses incurred, and (2) the amounts requested. Rule 2016, Fed.R.Bankr.P. The burden of proving the value of the services for which compensation is sought is always on the applicant. See, generally, In re Pettibone Corp., 74" }, { "docid": "8860914", "title": "", "text": "secured asset, cannot be invaded to pay other administrative costs and expenses. In re Flagstaff Foodservice Corporation, 762 F.2d 10 (2d Cir.1985). Turning to the merits of the application itself, the court finds that the debtor’s interests were ably represented by the services rendered by debtor’s counsel. The case was difficult due in large part to the litigious position assumed by the debtor’s major secured creditor, Citicorp, from the outset of the case. While the ultimate results may not be favorable, debtor’s counsel is not a guarantor of success and is entitled to be reasonably compensated for the necessary services performed on behalf of its client during the pendency of the case. Although the entries in the application are not completely descriptive, nevertheless, the court is sufficiently familiar with the complex history of this case and the numerous court hearings to make a finding that the fee requested is reasonable compensation for the services performed. Accordingly, the court hereby awards Lee and LeForestier a final fee of $63,-012.00, plus expenses of $1,632.71. Since $15,000 of this sum has previously been allowed to date, an additional $48,012 in fees plus $1,632.71 in expenses may be taken against the retainer at this time. The $1,732.29 balance remaining after deduction of the foregoing fees shall continue to be held by debtor’s counsel subject to further order of this court. The effect of this order is stayed for a period of ten days to permit Citicorp to present any additional facts which might contradict this court’s findings and of which this court may be unaware regarding the nature of the debtor’s operating account and Citicorp’s asserted security interest in and to the $45,000 at issue. It is so ORDERED. . The original retainer was $75,000. The difference ($8,623) represents the amount of the retainer applied to cover pre-petition services." }, { "docid": "8860913", "title": "", "text": "debtor paid the $45,000 to debtor’s counsel as a retainer, debtor’s counsel acquired a common-law possessory lien in and to the fund which stands as security for payment of their fees. Attorneys at Law, N.Y.Jur.2d §§ 168-174. To the extent that the fees are subsequently earned, debtor’s counsel is a secured creditor, secured by a possessory security interest in cash. N.Y.U.C.C. § 9-305. In re Burnside Steel Foundry Company, (Bankr.N.D.Ill.1988) 90 B.R. 942. Objections have been raised by Forest City Management, Inc. and the Creditor’s Committee to payment of debtor counsel’s fees based in part upon the argument that there are other administrative expenses that remain owing and which are equally entitled to be paid. In addition, Citicorp argues that it has a first administrative priority expense claim under § 364(c)(1) as to the repayment of all its debt pursuant to an order entered by this court on July 26, 1990. The court finds that debtor’s counsel has a prior secured right to the fund in its possession and that the fund, which constitutes a secured asset, cannot be invaded to pay other administrative costs and expenses. In re Flagstaff Foodservice Corporation, 762 F.2d 10 (2d Cir.1985). Turning to the merits of the application itself, the court finds that the debtor’s interests were ably represented by the services rendered by debtor’s counsel. The case was difficult due in large part to the litigious position assumed by the debtor’s major secured creditor, Citicorp, from the outset of the case. While the ultimate results may not be favorable, debtor’s counsel is not a guarantor of success and is entitled to be reasonably compensated for the necessary services performed on behalf of its client during the pendency of the case. Although the entries in the application are not completely descriptive, nevertheless, the court is sufficiently familiar with the complex history of this case and the numerous court hearings to make a finding that the fee requested is reasonable compensation for the services performed. Accordingly, the court hereby awards Lee and LeForestier a final fee of $63,-012.00, plus expenses of $1,632.71. Since $15,000 of" }, { "docid": "15575121", "title": "", "text": "asserts that the salary of the Special Assistant United States Attorney who represents the SBA is an expense which the SBA incurred without regard to the work required by this proceeding and is not the type of cost referenced in the Note. OSHI further contends that the SBA has not established that the fees are directly attributable to the Note. In support of its contentions, OSHI cites In re Davidson Metals, Inc., 152 B.R. 917 (Bankr.N.D.Ohio 1993). In Davidson Metals, the creditor, Society Bank, was represented by an “outside” law firm. Society’s representation by this law firm was often duplicated with its own in-house counsel. Society’s in-house counsel sought attorney fees pursuant to security agreements which it had with the debtor, Davidson Metals. The security agreements provided that Society was entitled “to recoup ‘all court costs and attorney’s fees and every other cost, expense or liability, if any, incurred or paid by [Society] in connection with [the security agreements] ... ’, and further stated that Davidson Metals ‘shall ... defend, indemnify and save [Society] harmless from and against every out-of-pocket cost, expense, loss or liability (as the ease may be), if any, incurred by [Society] by reason of this Security Agreement Davidson Metals, 152 B.R. at 923. The court noted, In-house counsel appeared at, and billed for, appearances at many hearings before the court where Thompson, Hiñe & Flory personnel [“outside” counsel] was also present, with no showing that multiple representation was needed. This same sort of duplication of effort appears intermittently throughout the many conference and meeting entries in the First and Second Applications. Id. Additionally, the court concluded that Society’s in-house counsel was not entitled to its fees, stating: The court fails to see how the cost of employing in-house counsel is directly attributable to Davidson Metals’ security agreements. Looking at it another way, nothing in the loan documents requires Davidson Metals to assume responsibility for paying any portion of Society’s preexisting overhead costs, namely, the continuing salary, benefits, etc. of its employees. Whatever obligation exists to compensate in-house attorneys remains with Society. Society has cited no persuasive" }, { "docid": "5466811", "title": "", "text": "Motion for Rehearing, Reconsideration and Clarification. Its itemized billings reflect numerous entries where time spent on multiple activities is “lumped” into one entry. A creditor is free to employ counsel it chooses to pursue bona fide actions against a debtor. However, the creditor may only charge the debtor with the costs of those services reasonably necessary to protect its interests. In re Villa Capri of Georgia Associates, Ltd. Partnership, 141 B.R. 257 (Bankr.N.D.Ga.1992). When the nature of time entries or individual portions of the time entries make it impossible to determine which items were reasonably necessary for the protection of the creditor’s interests, the Court must rely on its own knowledge and experience in arriving at the proper fee award. Id., In re Davidson Metals, Inc., 152 B.R. 917 (Bankr.N.D.Ohio1993). Citicorp requests reimbursement for fees and expenses of Becket & Watkins in the amount of $7,657.76. We find that $3,300 represents reasonable compensation and reimbursement of expenses for services rendered by Becket & Watkins. After the departure of Fried and Fishman in December, 1993, Citicorp engaged the Miami, Florida firm of Blackwell & Walker as “general counsel” in the case. Blackwell & Walker’s time entries commenced on March 15, 1994. Citicorp seeks reimbursement for Blackwell & Walker’s fees in the amount of $2,227.16. Blackwell & Walker’s services consist almost entirely of conferences and correspondence with Pennsylvania counsel, and the review of Pennsylvania counsel’s work. We find such activities unnecessary and unreasonable. The remaining fee request of $725.42 is for various amounts ranging from $12 to $240 with dates beginning in 1988. Although Citicorp asserts that these amounts are for attorney’s fees, a review of the documentation indicates that they are actually for appraisals, property searches, and demand letters. Citicorp had appraisals of the Property done in May, 1988, October, 1990, September, 1992, and March, 1994. We have already indicated that we will allow the $795 for expenses as requested. We will disallow this additional amount requested for “attorney’s fees” as not reasonable or necessary. In conclusion, we find that Citicorp is entitled to reimbursement for attorney’s fees, expenses, costs and" }, { "docid": "16872842", "title": "", "text": "Dalessio 74 B.R. [721,] 723. (“A court should not reward a creditor whose overly aggressive attorney harasses and opposes the debtor at every stage of the bankruptcy proceeding, nor should an oversecured creditor be given a blank check to incur fees and costs which will automatically be reimbursed out of its collateral.”) We agree with courts that have required the secured creditor under § 506(b) to meet the billing judgment standard used when awarding fees under § 330, i.e., the amount for which it seeks compensation must bear a rational relationship to the amount of its secured claim or risk non-payment. [Citations omitted.] F.B.F. Industries, 1995 WL 691893 at * 4. In In re Ward, 190 B.R. 242, 246 (Bankr.D.Md.1995), a bankruptcy court from a different circuit adopts a similar approach: In determining the reasonableness of fees and costs, this court requires that the fee applications contain a certain level of content and specificity. See In re Consolidated Properties Ltd. Partnership, 152 B.R. 452, 459 (Bankr.D.Md.1993) (Derby, J.). Courts have refused repeatedly to approve unitemized disbursements for services that are lumped together in a single entry, because such action inhibits the court from estimating the reasonableness of the individual services and their value to the debtor’s estate. Id.; see also In re Kroh Bros. Development Co., 105 B.R. 515, 522 (Bankr.W.D.Mo.1989). In a comprehensive study of the problem, Judge James F. Schneider of this court instructed: [Lumping is a] practice universally disapproved by bankruptcy courts for two reasons. One, it permits an applicant to claim compensation for rather minor tasks which, if reported individually, would not be compensable. Two, it prevents the Court from determining whether individual tasks were expeditiously performed within a reasonable period of time because it is impossible to separate into components the services which have been lumped together. In re Leonard Jed Co., 103 B.R. 706, 713 (Bankr.D.Md.1989). Courts faced with time entries containing multiple tasks or services generally employ one of two courses of action. Some courts have denied fully all compensation requested for the lumped time entries. See, e.g., In re Breeden, 180 B.R." }, { "docid": "16872835", "title": "", "text": "the court reduced some categories of requested fees and required an evidentiary hearing on others where the issue was delinquency of mortgage payments. In doing so, the court reasoned that [w]hen the nature of time entries or individual portions of the time entries make it impossible to determine which items were reasonably necessary for the protection of the creditor’s interests, the Court must rely on its own knowledge and experience in arriving at the proper fee award. [Citation omitted.] Oliver, 183 B.R. at 87. In re Danise, 112 B.R. 492 (Bankr.D.Conn.1990), and In re Gwyn, 150 B.R. 150 (Bankr.M.D.N.C.1993), confirm that the burden of proof to show reasonableness of attorney fees falls on the applicant/oversecured creditor. Gwyn, 150 B.R. at 153, also explains that the court has “very broad discretion in determining the amount of attorneys’ fees and expenses to be awarded.” Although none of these cases is controlling authority for us, we find them well-reasoned. To the extent that the facts here are similar, we will adopt a similar approach. Attempting to meet its burden, the bank has submitted documents and exhibits explaining the creditor-debtor relationship between Irwin Bank and Green Valley Beer which predated Debtor’s filing of its Chapter 11 petition and an explanation of their renegotiated relationship postpetition. The bank also has outlined its request for fees in nine categories of services and presents a chart outlining the hourly rate of service and total hours billed for each of twenty-four persons of McGrath & Associates, P.C., who provided the legal services represented in the application. A separate categorization of services summarized by reorganization stages has also been provided. Copies of numerous invoices are attached to the Final Application. Debtor has not challenged any of the billing rates and, during the March 1st argument, conceded that they were reasonable. Debtor objects that the case was “over-lawyered” inasmuch as 24 people worked on the file. Creditor explained at argument that there had been a changeover in counsel’s firm and most of the 24 people were paralegals. Responding to the proffered evidence, Debtor argues that $35,000 worth of le gal" }, { "docid": "20619796", "title": "", "text": "fee applications to contain a certain level of content and specificity. In re Consolidated Properties Ltd. Partnership, 152 B.R. 452, 459 (Bankr.D.Md.1993). Unitemized disbursements for services “lumped” or “bundled” together in a single entry thereby inhibiting the Court from determining the reasonableness of the individual services rendered and the necessity/value of the service to the estate is a practice universally disallowed. Green Valley Beer, 281 B.R. at 259 (citations omitted). While oversecured creditors are entitled to engage counsel and pay for constant, comprehensive and aggressive representation, such creditor is not entitled to reimbursement for attorney fees for every action it takes claiming that its rights or interests have been affected. Where services are not reasonably necessary to protect its interests, or where action is taken because of a lawyer’s excessive caution or overzealous advocacy, in exercise of their discretion, courts have the right and are duty-bound to disallow the fees and costs requested. Green Valley Beer, 281 B.R. at 258 (citations omitted); In re Oliver, 183 B.R. 87 (Bankr.W.D.Pa.1995). An oversecured creditor should not be given a “blank check” to incur attorney fees and costs with the expectation it will automatically be reimbursed for those fees and costs out of its collateral. In re Lund, 187 B.R. 245 (Bankr.N.D.Ill.1995); In re Dalessio, 74 B.R. 721, 723 (9th Cir. BAP 1987). Finally, where the evidentiary record is inadequate, the reviewing court has authority to make an appropriate award without further pleadings or evidence, relying on its own knowledge and experience in determining reasonable and proper fee awards. In re Gordon-Brown, 340 B.R. 751 (Bankr.E.D.Pa.2006); In re FBF Industries, Inc., 1995 WL 691893, at *7; In re Oliver, 183 B.R. at 91. As previously noted, in support of its claim Washington Federal submitted various billing statements in the form of Exhibits 27 through 33 and made an oral request, without any documentary support, for additional fees incurred since December 31, 2005. Washington Federal offered this evidence as to fees and costs without any explanatory or supporting testimony despite being given an opportunity to do so at the time of the evidentiary hearing." }, { "docid": "5466810", "title": "", "text": "advertising costs, and other charges which total approximately $900. The actual attorney’s fee charged by Fried and Fishman is approximately $1,000. We find that such amounts are reasonable. In January, 1994, Citicoip engaged Becket & Watkins as “local counsel” in Pennsylvania. Although referred to as “local counsel,” Becket & Watkins is located in Malvern, Pennsylvania, a long distance from Erie. Becket & Watkins’ time records reflect numerous entries which indicate that they are not “local” in nature, which include a motion to appear pro hac vice, entries for review of the Local Rules, and calls to the Clerk to determine hearing dates for motions (which are published regularly in the local legal journal). It makes little sense for an out of state firm to hire as local counsel another firm far removed from this area and who is not familiar with the local practices. Becket & Watkins pursued a Motion for Relief from Stay, was involved in objections to confirmation, filed objections to the Debt- or’s Motion for Authority to Pay Claim, and filed a Motion for Rehearing, Reconsideration and Clarification. Its itemized billings reflect numerous entries where time spent on multiple activities is “lumped” into one entry. A creditor is free to employ counsel it chooses to pursue bona fide actions against a debtor. However, the creditor may only charge the debtor with the costs of those services reasonably necessary to protect its interests. In re Villa Capri of Georgia Associates, Ltd. Partnership, 141 B.R. 257 (Bankr.N.D.Ga.1992). When the nature of time entries or individual portions of the time entries make it impossible to determine which items were reasonably necessary for the protection of the creditor’s interests, the Court must rely on its own knowledge and experience in arriving at the proper fee award. Id., In re Davidson Metals, Inc., 152 B.R. 917 (Bankr.N.D.Ohio1993). Citicorp requests reimbursement for fees and expenses of Becket & Watkins in the amount of $7,657.76. We find that $3,300 represents reasonable compensation and reimbursement of expenses for services rendered by Becket & Watkins. After the departure of Fried and Fishman in December, 1993, Citicorp" }, { "docid": "1585891", "title": "", "text": "require.’” Id. (quoting In re Henning,. 55 B.R. 682, 684 (BC S.D.1985)). Courts have noted repeatedly that counsel for oversecured creditors may not receive compensation, pursuant to § 506(b), for every action counsel might choose to take throughout the bankruptcy case. See In re Davidson Metals, Inc., 152 B.R. 917, 921 (BC N.D.Ohio 1993). One court has noted that: [I]t is clear that creditors are entitled to engage counsel and pay for constant, comprehensive, and aggressive representation, ... [but] where services are not reasonably necessary or where action is taken because of an attorney’s excessive caution or overzealous advocacy, courts have the right and the duty, in the exercise of their discretion, to disallow fees and costs under § 506(b). In re Kroh Bros. Development Co., 105 B.R. 515, 521 (BC W.D.Mo.1989) (quoting In re Wonder Corp. of America, 72 B.R. 580, 591 (BC Conn.1987), aff'd, 82 B.R. 186 (D.Conn.1988)). Consequently, while it is true that Prudential may employ any number of lawyers it desires, the costs incurred for “over-lawyering” should be borne by the creditor rather than by the debtor. In re Davidson Metals, Inc., 152 B.R. 917, 921 (BC N.D.Ohio 1993). While this case involves a significant sum of money, the issues involving Prudential were not novel or difficult given Prudential’s secure position and the debtor’s exemplary payment history. Rather, they were comprised of the customary questions that eoun- sel would normally encounter in a contested bankruptcy case of this sort. The Applicant is a highly qualified law firm that always has produced excellent work. The attorneys appearing before this court are knowledgeable, prepared and present themselves in a professional manner. As noted above, however, the issues with respect to Prudential were not complex. The Applicant seeks compensation for many hours of service that do not reach the level of reasonableness and necessity to qualify for payment by the debtor. Many of the services rendered were an exercise of legal handholding undertaken at another’s expense. Given this court’s experience in other cases of this nature and its examination of this record, the court finds that the Applicant’s total" }, { "docid": "10213190", "title": "", "text": "of this type. The Court is troubled, however, by the sheer amount of time billed. Excluding the aforementioned time spent in fee statement preparation, Thompson, Hine & Flory seeks compensation for 811.7 hours, totalling $129,622.50. A thorough review of the corresponding descriptive entries within the two Applications reveals that many entries represent work that is clearly allowable under § 506(b) and Amended Exhibit A. However, equally many entries fail, for one of several reasons. A number of the descriptions are impermissibly vague, which gives the Court no basis on which to conclude that the corresponding services were reasonable. In re Riker Indus., Inc., 122 B.R. 964, 971 (Bankr.N.D.Ohio 1990). Primary among these are notations of telephone calls and conferences where the participants are listed but the conversation topic is not. Time charges for attendance at Court hearings do not disclose what amounts, if any, are attributed solely to travel. Several entries disclose what appear to be clerical functions (e.g., work on a service list, filing of Court documents, etc.) performed by counsel. The latter items are more properly considered to be overhead of a law firm, and are not com-pensable at the rates billed. A number of billed matters clearly fall outside the scope of both § 506(b) and Amended Exhibit A. These include, inter alia, research as to the circumstances under which a debtor may file a lender liability suit, engagement of an outside investment banker, discussions with counsel for a principal of debtor-in-possession, attention to debtor-in-possession’s procurement of an outside letter of credit, and preparation of objections to an extension of the exclusivity period. It is well settled that an oversecured creditor may not use § 506(b) to gain compensation for every action it might choose to take throughout the duration of a debtor’s bankruptcy case. In re Huhn, 145 B.R. 872, 877 (W.D.Mich.1992), In re Riker Indus., Inc., 122 B.R. at 973. Because of ambiguity in many of the individual entries, however, it is impossible to precisely ascertain which charges are directly related to the protection of Society’s lien interests. Compounding that problem is the overwhelming number" }, { "docid": "18512236", "title": "", "text": "fair market value of the company at the time the petition was filed. . Petitioning Creditors’ Objections filed January 16, 1996, will be identified hereafter as \"Objections.” . Rule 46 of the General Rules of the United States District Court for the District of New Jersey provides in pertinent part: Compensation for Services Rendered and Reimbursement of Expenses A. In all actions in which a counsel fee is allowed by the Court or permitted by statute, an attorney seeking compensation for services or reimbursement of necessary expenses shall file with the Court an affidavit within 30 days of the entry of judgment or order, unless extended by the Court, setting forth the following: 1. the nature of the services rendered, the amount of the estate or fund in court, if any, the responsibility assumed, the results obtained, any particular novelty or difficulty about the matter, and other factors pertinent to the evaluation of the services rendered; 2. a record of the dates of services rendered; 3. a description of the services rendered on each of such dates by each person of that firm including the identity of the person rendering the service and a brief description of that person's professional experience; 4. the time spent in the rendering of each of such services; and 5. the normal billing rate for each of said persons for the type of work performed. The time spent by each individual performing services shall be totaled at the end of the affidavit. Computerized time sheets, to the extent that they reflect the above, may be utilized and attached to any such affidavit showing the time units expended. Reimbursement for actual, not estimated, expenses may be granted if properly itemized. B. Applications for the allowance of counsel fees shall include an affidavit describing all fee agreements and set forth both the amount billed to the client for fees and disbursements and the amount paid. C. In appropriate circumstances, including but not limited to those where counsel fees are sought as sanctions in connection with discovery and other pretrial motions, the Judge or Magistrate to whom the" }, { "docid": "10213192", "title": "", "text": "of Thompson, Hine & Flory entries attributable to intra-firm status conferences, telephone discussions, progress reports, and strategy meetings. Billings for 21 separate Thompson, Hine & Flory professionals appear in the two Applications. While Society is free to utilize whatever size cadre of lawyers it prefers, the costs attributable to “overlawyering” should be borne by the creditor rather than by Debtor-in-Possession. In re Gillette Assocs., Ltd., 101 B.R. 866, 880 (Bankr. N.D.Ohio 1989), Clark Screw Mach. Prods. Co. v. Clark Grind & Polish, Inc. (In re Clark Grind & Polish, Inc.), 137 B.R. 172, 175-76 (Bankr.W.D.Pa.1992). The number of billed conferences between Thompson, Hine & Flory professionals and representatives of Society likewise exceeds a level that this Court would find appropriate. From the information provided, the Court concludes that many of these conferences and meetings were of no value in protecting the lien rights of Society and represent unreasonable charges for § 506(b) purposes. However, the impossibility of readily divining which entries, or, in some examples, which portions of an entry, are truly related to protection of Society’s lien interests rules out a line-by-line fee allowance. In such a case, a court must rely on its own knowledge and experience in arriving at a proper fee award. Hensley v. Eckerhart, 461 U.S. 424, 433-34, 103 S.Ct. 1933, 1939-40, 76 L.Ed.2d 40 (1983); Norman v. Housing Auth. of the City of Montgomery, 836 F.2d 1292, 1303 (11th Cir.1988). Courts thus often reach a final dollar figure via a proportional adjustment to the total of fees requested. See, e.g., In re Villa Capri of Ga. Assocs., Ltd., 141 B.R. 257, 264 (Bankr.N.D.Ga.1992) (approximately 70% of fee disallowed); In re Wire Cloth Prods., Inc., 130 B.R. 798, 813-16 (Bankr.N.D.Ill.1991) (percentages vary; aggregate 50% disallowed); In re Court-land Estates Corp., 144 B.R. 5, 11 (Bankr. D.Mass.1992) (15% reduction appropriate). In assessing the complexity and scope of the issues presented in this case, the fee charges for counsel for Debtor-in-Possession, though not dispositive, are helpful. The fee total, exclusive of expenses, requested by two separate law firms for representation of Davidson Metals during the time period" }, { "docid": "18634432", "title": "", "text": "prove counsels’ fees. See Horn & Hardart Baking Co., 30 B.R. at 944; Hotel Associates, Inc., 15 B.R. at 488. Accordingly, the court concludes that MBL did not meet its burden of proof as to the reasonableness of the Kansas City firm’s attorneys’ fees. For this reason, the court denies total reimbursement of the Kansas City counsel’s fees and expenses in the amount of $23,740.03. SUPPLEMENTAL MOTION The time records supplied by Chicago counsel, Kansas City counsel and the second Kansas City local counsel in support of the Supplemental Motion have been set forth with much more clarity than those filed in support of the Original Motion. However, there were still a number of entries that did not conform to the specificity and content requirements of §§ 506(b) and 330(a)(1). MBL therefore failed to sustain its burden of proof as to these entries and fees relating to these entries will be disallowed. These fees include entries where the purpose of a telephone call, letter or conference was not stated; entries in which lumping of more than one service occurred if the court could not determine that the total amount charged was reasonable; entries where no work occurred on this matter; entries involving routine tasks or the monitoring of proceedings and entries involving work on counsels’ fee applications, including the appeal of the Original Order. Additionally, Respondents objected to payment of any fees in connection with MBL’s attempts to recover its prepayment premium. Respondents argue that MBL received the entire amount of its principal, prepetition interest and postpetition interest and that the recovery of those sums are the only reasonable fees allowable as necessary to the protection of MBL’s lien on the property. The court agrees. Additionally, it is also unreasonable to charge this estate attorneys’ fees for a claim disallowed by the court. Again, the request amounts to overreaching. Accordingly, the court concludes that fees relating to the prepayment premium should be disallowed as unreasonable pursuant to § 506(b). The court must then determine the allowable amount for time spent in work performed on the Original Motion. In addition to" }, { "docid": "5466809", "title": "", "text": "the first mortgage holder. The Mortgage expressly authorizes Citicorp to make such payments. Citicorp has provided a copy of a canceled check reflecting payment of $10,387.28 to the first mortgagee and an Affidavit from a Citicorp employee as to an additional payment in the amount of $1,342.05. The Debtor has not denied that such payments were made. We find that such payments are reimbursable. The amount of the request for attorney’s fees is more troublesome. The amount requested has varied throughout this proceeding. The present request is for $12,-582.69. Citicorp originally engaged the law firm of Fried and Fishman in 1992 at about the time the Debtor filed one of his prior bankruptcies in Florida. Fried and Fishman pursued a motion for relief from the automatic stay in the Florida bankruptcy and then proceeded with a foreclosure action which apparently was stayed upon the filing of the present bankruptcy. Fried and Fishman charged Ci-ticorp $1,906.35 for their efforts which apparently ceased in December, 1993. Included in Fried and Fishman’s billings are expenses for filing fees, advertising costs, and other charges which total approximately $900. The actual attorney’s fee charged by Fried and Fishman is approximately $1,000. We find that such amounts are reasonable. In January, 1994, Citicoip engaged Becket & Watkins as “local counsel” in Pennsylvania. Although referred to as “local counsel,” Becket & Watkins is located in Malvern, Pennsylvania, a long distance from Erie. Becket & Watkins’ time records reflect numerous entries which indicate that they are not “local” in nature, which include a motion to appear pro hac vice, entries for review of the Local Rules, and calls to the Clerk to determine hearing dates for motions (which are published regularly in the local legal journal). It makes little sense for an out of state firm to hire as local counsel another firm far removed from this area and who is not familiar with the local practices. Becket & Watkins pursued a Motion for Relief from Stay, was involved in objections to confirmation, filed objections to the Debt- or’s Motion for Authority to Pay Claim, and filed a" }, { "docid": "16872834", "title": "", "text": "and costs expended, does reflect that the hearings scheduled and continued were unusually large for a Complaint seeking simply relief from stay and protection of a secured creditor whose claim was substantially overse-cured and never questioned as to its validity. Many of the entries reflect telephone conversations between the attorney and a representative of the Bank, without any indication as to the necessity therefor or the substance thereof.... ... 11 U.S.C. § 506 directs this Court to fix only a fee for creditor’s counsel which is “reasonable”.... Therefore, a reasonable fee under these guidelines ' fixed by the court does not necessarily mean the fees charged between the attorney and his client. As between the attorney and client, the fee is a contractual matter between the two parties. Such fee may be subject to a variation where a reasonable standard is applied in cases where creditors’ and debtors’ funds in these estates are being disbursed to the payment of secured creditors’ claims. Harman, 44 B.R. at 920-921. In In re Oliver, 183 B.R. 87 (Bankr.W.D.Pa.1995), the court reduced some categories of requested fees and required an evidentiary hearing on others where the issue was delinquency of mortgage payments. In doing so, the court reasoned that [w]hen the nature of time entries or individual portions of the time entries make it impossible to determine which items were reasonably necessary for the protection of the creditor’s interests, the Court must rely on its own knowledge and experience in arriving at the proper fee award. [Citation omitted.] Oliver, 183 B.R. at 87. In re Danise, 112 B.R. 492 (Bankr.D.Conn.1990), and In re Gwyn, 150 B.R. 150 (Bankr.M.D.N.C.1993), confirm that the burden of proof to show reasonableness of attorney fees falls on the applicant/oversecured creditor. Gwyn, 150 B.R. at 153, also explains that the court has “very broad discretion in determining the amount of attorneys’ fees and expenses to be awarded.” Although none of these cases is controlling authority for us, we find them well-reasoned. To the extent that the facts here are similar, we will adopt a similar approach. Attempting to meet its" }, { "docid": "9565143", "title": "", "text": "thirty (30) days in which to file an amended application for the entries which have been disallowed for lack of specificity. F. PREPARATION OF FEE APPLICATION We have stated on numerous occasions in the past that time spent by attorneys or paralegals in researching attorneys’ fee issues and preparing fee applications is not compensable from the debtor’s estate. In re Horn & Hardart Baking Co., 30 B.R. 938 (Bankr.E.D.Pa.1983); In re Absco, Inc., 23 B.R. 250 (Bankr.E.D.Pa.1982); In re Hotel Associates, Inc., 15 B.R. 487 (Bankr.E.D.Pa.1981). In deciding these cases, we relied upon the guidelines set forth by the Third Circuit Court of Appeals in Lindy Bros. Builders, Inc. v. American Radiator & Standard Sanitary Corp., 540 F.2d 102, 111 (3d Cir.1976), which held that services rendered in connection with a fee application were not compensable from a common fund. However, if the estate is solvent and all creditors’ claims have been satisfied in full, reasonable compensation will be allowed to counsel for preparation of fee applications because there is no competing interest between the claims of creditors and the request for attorneys’ fees from the estate. Bible Deliverance, 39 B.R. at 772. Upon examination of the fee application before the Court, we note that there are several entries which claim compensation for services rendered in connection with attorneys’ fees. Since there is no indication that this debtor-in-possession is solvent or that all creditors’ claims have been paid in full, these entries have been disallowed. G. REIMBURSEMENT OF EXPENSES Finally, we note that the fee application for this period requests reimbursement of expenses, pursuant to section 330(a)(2), in the amount of $7,911.59. Very little information is provided in the application regarding the nature of these expenditures. Only a breakdown by category is given. We stated in American International Airways, 47 B.R. at 725, that detail must be provided to substantiate the actual and necessary nature of expenditures. For example, when requesting reimbursement for telephone calls, counsel should specify the date of the call, the person to whom the call was made, the subject matter of the call, and the amount" }, { "docid": "5466812", "title": "", "text": "engaged the Miami, Florida firm of Blackwell & Walker as “general counsel” in the case. Blackwell & Walker’s time entries commenced on March 15, 1994. Citicorp seeks reimbursement for Blackwell & Walker’s fees in the amount of $2,227.16. Blackwell & Walker’s services consist almost entirely of conferences and correspondence with Pennsylvania counsel, and the review of Pennsylvania counsel’s work. We find such activities unnecessary and unreasonable. The remaining fee request of $725.42 is for various amounts ranging from $12 to $240 with dates beginning in 1988. Although Citicorp asserts that these amounts are for attorney’s fees, a review of the documentation indicates that they are actually for appraisals, property searches, and demand letters. Citicorp had appraisals of the Property done in May, 1988, October, 1990, September, 1992, and March, 1994. We have already indicated that we will allow the $795 for expenses as requested. We will disallow this additional amount requested for “attorney’s fees” as not reasonable or necessary. In conclusion, we find that Citicorp is entitled to reimbursement for attorney’s fees, expenses, costs and charges in the total amount of $17,664.78, provided that the Property has a value which will support such an allowance. III. Evidentiary Hearing to Determine Value § 506(b) permits a secured creditor to recover reasonable fees, costs, or charges provided for under the agreement under which such claim arose up to the point where the aggregate claim equals the value of the security. In re Foertsch, 167 B.R. 555 (Bankr.D.N.D.1994). The creditor carries the burden of proof of showing that it is oversecured. Id. We have determined that Citicorp has expended reasonable fees, and other costs in the amount of $17,664.78. The remaining issue is whether the value of the Property supports payment of that amount. The Debtor would have us make the calculation as follows and have us find that there is no value to support Citicorp’s claim: Value of property $ 85,000.00 Less: first mortgage prior principal to Citicorp prior interest to Citicorp condo fees (29,436.84) (43,382.45) (16,856.25) ( 5,625.00) Balance available for Citicorp’s fees and costs $(10,300.54) The Debtor acknowledges that some" } ]

[ { "docid": "15412506", "title": "", "text": "216, 88 S. Ct. 1472, 20 L.Ed.2d 538 (1968). At most, the suspicion provided a reason for continuing the inspection at the parking lot. United States v. Lipscomb, 435 F.2d 795 (5th Cir. 1970), cert. denied, 401 U.S. 980, 91 S.Ct. 1213, 28 L. Ed.2d 331 (1971); United States v. Polk, 433 F.2d 644 (5th Cir. 1970); United States v. Johnson, 413 F.2d 1396 (5th Cir. 1969), aff’d en banc, 431 F.2d 441 (5th Cir. 1970); United States v. Graham, 391 F.2d 439 (6th Cir.), cert. denied, 393 U.S. 941, 89 S.Ct. 307, 21 L. Ed.2d 278 (1968); Cotton v. United States, 371 F.2d 385 (9th Cir. 1967); United States v. Powers, 439 F.2d 373 (4th Cir.), cert. denied, 402 U.S. 1011, 91 S.Ct. 2198, 29 L.Ed.2d 434 (1971). Had they continued the inspection at the parking lot and ascertained that the CVIN did not correspond to the VIN and the number on the registration certificate, they would have had probable cause to believe that the Cadillac had been stolen. Instead of continuing the inspection, Detective Gebbia directed appellant to furnish the keys, and drove the Cadillac to the police station. While circumstances amounting to less than probable cause may justify the minimal intrusion involved in an on-the-scene inspection of the VIN or CVIN, the greater intrusion involved in impounding or seizing a vehicle cannot be justified without probable cause. See Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). Since Detective Gebbia had no probable cause to believe that the Cadillac had been stolen, the only other basis for taking the Cadillac to the police station would have been to protect it. See United States v. Lipscomb, supra; United States v. Polk, supra; United States v. Cotton, supra; People v. Manzi, 21 A. D.2d 57, 248 N.Y.S.2d 306 (1st Dept. 1964) (Breitel, J.). However, since the Cadillac was parked in the parking lot behind the apartment house in which appellant lived, which was an appropriate place for it to be, and" } ]

[ { "docid": "8424208", "title": "", "text": "also err by exaggerating both the ingenuity of criminal accused and the legitimate fears of policemen. Such judicial timidity leads to ivory tower speculations entirely unrelated to the actions or experience of the officers in the field. II. The Automobile Search Though the panel places its primary reliance on the Chimel exception to the warrant requirement, the Government in its brief before this Court concentrated largely on the so called “car exception” to the search warrant requirement first recognized in Carroll v. United States, 1925, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, and most recently explicated by the Supreme Court in Coolidge v. New Hampshire, 1971, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564. The majority’s emphasis on the “mobile” nature of Frick’s car and the citation to Chambers v. Maroney, 1970, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419, a decision which relied heavily on Carroll, indicate that at at least some support was drawn from this argument. At the outset it should be noted that any holding in favor of the applicability of the Carroll exception only takes the Government over the first hurdle — it justifies the removal of the briefcase from Frick’s car. The subsequent warrantless inspection of the contents of the closed briefcase requires independent analysis. There are two general requirements for the application of Carroll and the consequent warrantless search of a motor vehicle. First, the officers must have probable cause to believe that the car contains contraband or other evidence. Second, certain exigent circumstances must exist such that “it is not practicable to secure a warrant.” Coolidge v. New Hampshire, 402 U.S. at 460, 91 S.Ct. at 2034, quoting Carroll v. United States, 267 U.S. at 153, 45 S.Ct. 280. The facts of this case fail to demonstrate either of these essential elements. A. Probable Cause I concur without reservation in the conclusion of my brothers that no proba ble cause existed to support a search warrant for Frick’s briefcase prior to the day of the arrest. The panel opinion, however, purports to find the missing elements of probable" }, { "docid": "8282067", "title": "", "text": "probable cause to conduct a search but argue that exigent circumstances were lacking to justify a warrantless search and seizure, and that it was not a lawful search incident to a lawful arrest. In approaching the question, we start from the premise that notwithstanding the existence of probable cause, warrantless searches are per se unreasonable absent exigent circumstances or some recognized exception to the warrant requirement. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) As noted above (see n. 12), it is clear that the agents had probable cause to search. However, the defendants first contend that the anonymous phone call at 3:30 in the afternoon of March 20 provided probable cause to search Kulp’s home. We disagree and, had had the police gotten a warrant based merely on this phone call, we doubt whether the warrant would have been valid. Indeed, the agents followed the prudent course and continued to investigate the tip. The investigation corroborated the tip in every respect. The final block in the building of probable cause occurred when the agents saw the suitcases that matched the description of those stolen in Dallas and recognized jeweler Dougherty as the driver. Thus, the probable cause consisted of the tip, corroboration of the tip, the independent evidence obtained from the agents’ surveillance, and the presence of incriminating evidence in plain view in the back seat of the car. See United States v. McNally, 473 F.2d 934 (3d Cir. 1973); United States v. Moody, 485 F.2d 531 (3d Cir. 1973). In an earlier opinion, United States ex rel. Johnson v. Johnson, 340 F.Supp. 1368 (E.D.Pa.1972), we analyzed warrantless automobile searches in light of Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), and Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). In Johnson, we concluded that the result in Coolidge was merely the fruition of the warning in Chambers that exigent circumstances do not in every instance accompany the" }, { "docid": "3211321", "title": "", "text": "it clear in Preston that whether a search and seizure is unreasonable within the meaning of the Fourth Amendment depends upon the facts and circumstances of each case and pointed out, in particular, that searches of cars that are constantly movable may make the search of a car without a warrant a reasonable one although the result might be the opposite in a search of a home, a store, or other fixed piece of property.” Again in Dyke v. Taylor Implement Mfg. Co., 1968, 391 U.S. 216, at page 221, 88 S.Ct. 1472, at page 1475, 20 L.Ed.2d 538, the Supreme Court, through Mr. Justice White, said: “Automobiles, because of their mobility, may be searched without a warrant upon facts not justifying a warrantless search of a residence or office. Brinegar v. United States, 338 U.S. 160, [69 S.Ct. 1302, 93 L.Ed. 1879] (1949); Carroll v. United States, 267 U.S. 132, [45 S.Ct. 280, 69 L.Ed. 543] (1925). The cases so holding have, however, always insisted that the officers conducting the search have ‘reasonable or probable cause’ to believe that they will find the instrumentality of a crime or evidence pertaining to a crime before they begin their warrantless search.” See, also, Chambers v. Maroney, 1970, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419; Johnson v. United States, 1948, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436; Agnello v. United States, 1925, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145; Carroll v. United States, 1925, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543; White v. United States, 8 Cir., 1971, 448 F.2d 250 per. Despite the different standards applied, a warrantless search of a motor vehicle must still meet the requirements of probable cause and reasonableness. The search must not be remote in time or place when the securing of a warrant would be practicable. Coolidge v. New Hampshire, 1971, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564; Preston v. United States, 1964, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777. Nor will the search be sustained if the arrest for a traffic violation" }, { "docid": "8370266", "title": "", "text": "court the government placed great dependence upon the “border search” doctrine as justification for Clements’ warrantless search. This contention is not pressed on appeal. Rather the government relies on the “exigent circumstances” exception to the warrant requirement announced in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925) and refined in Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), and United States v. Menke, supra. This exception to the warrant requirement, authorized for certain automobile searches, is premised on the theory that the mobility of the automobile presents a danger that contraband will move or disappear. Justice White put it succinctly: “But when there are exigent circumstances, and probable cause, then the search may be made without a warrant, reasonably.” Chimel v. California, 395 U.S. 752, 773, 89 S. Ct. 2034, 2046, 23 L.Ed.2d 685 (1969) (dissenting). The “exigent circumstances” exception is not a per se rule to be applied indiscriminately to every automobile containing contraband, nor should it be applied to every object that has the capacity for movement. Rather, its application should depend upon an evaluation of attendant circumstances. At a very minimum there must be probable cause to make a search for contraband. In United States v. Menke, supra, 468 F.2d at 23, we noted that a critical “distinction [exists] between the holding in Coolidge with respect to non-contraband goods, and the holding in Carroll that ‘contraband goods concealed and transported in an automobile or other vehicle may be searched for without a warrant.’ 267 U.S. at 153, 45 S.Ct. at 285.” A further consideration is the reasonable possibility of the agent’s loss of dominion and control over the object to be searched and the consequential loss of the contraband contained therein. “Carroll, supra, holds a search warrant unnecessary where there is probable cause to search an automobile stopped on the highway; the car is movable, the occupants are alerted, and the car’s contents may never be found again if a warrant must" }, { "docid": "13022876", "title": "", "text": "and seizure. Since no warrant had been issued for the search of the Cessna 421, No. N421L, the burden is upon the Government to demonstrate that the search in question fell within one of the exceptions to the warrant requirement of the Fourth Amendment. United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951). The Government’s justifications for the warrantless search are: A. Probable cause with exigent circumstances; and B. Consent by the airplane pilot. A. Probable Cause With Exigent Circumstances. The United States Supreme Court has frequently held that an automobile search, under certain circum stances, can be carried out without a warrant. Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974); Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); see also Schneckloth v. Bustamonte, 412 U.S. 218, 228 n.10, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). The rule for a warrantless automobile search may be stated as follows: -A vehicle may be searched without a warrant provided there are exigent circumstances and there is probable cause to believe that the automobile will yield contraband or evidence useful for the prosecution of a crime. Coolidge v. New Hampshire, supra; United States ex rel. Johnson v. Johnson, 340 F.Supp. 1368 (E.D.Pa.1972); Note, Warrantless Searches and Seizures of Automobiles, 87 Harv.L.Rev. 835 (1974). The Government asks that the Court apply this “automobile” exception to the facts of the instant case contending there exists both probable cause to search and exigent circumstances. The reasoning of the cases which employ this exception to the warrant requirement would appear to support its extension to airplanes since airplanes fit the general requirement of vehicles capable of removal which is the touchstone of these cases. United States v. Ciovallo, 384 F.Supp. 1385 (D.Mass.1974). Accordingly, we will treat the search of the airplane" }, { "docid": "12159097", "title": "", "text": "was insufficient exigency to justify the failure to obtain a warrant. Treating exigency as “basically ... a factual question,” the panel decided that the District Court’s ruling was not “clearly erroneous.” But the facts here are not in dispute; there is no question of credibility of witnesses, and the issue is a legal one of constitutional dimension, whether these facts present a situation that the law considers “exigent” so as to dispense with the warrant requirement. The burden is on the Government to support the legality of a warrantless search. “ ‘[Sjearches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.’ ” Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564 (1971). Furthermore “[t]he exceptions are ‘jealously and carefully drawn,’ and there must be ‘a showing by those who seek exemption . . . that the exigencies of the situation made that course imperative.’ ” 403 U.S. at 455, 91 S.Ct. at 2032. The term “exigent” has become the legal designation for a set of emergency law enforcement situations excepted from the warrant requirement. These situations, in turn, are generally analyzed in terms. of the various component circumstances which contribute to the need for immediate action. III. The Government begins with reference to the long-established “automobile exception” to the warrant requirement where exigency is premised on mobility. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). Appellee argues that application of Carroll and its progeny to this case would make the automobile “exception” the rule, and turn the word “automobile” into the “talisman” it is not supposed to be. See Coolidge v. New Hampshire, 403 U.S. 443, 461-62, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). The Government admits that the mere fact that an automobile is involved does not dispense with the warrant, but insists it remains a significant factor. The very term “exigency”" }, { "docid": "1974049", "title": "", "text": "of the information of an unknown informant, but here the information was obtained from the police and the robbery victim. II. A Note in 87 Harv.L.Rev. 835, 837, traces the history of the automobile search exception starting with Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). It is based upon and continues through Chambers v. Maroney, 399 U.S. 42, 52, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419, 428 (1970), to Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), which points up the reasons constituting exigency, the main factor of which is the mobility of the automobile and the hazard of loss of the contraband. Brinegar v. United States, supra, recognizes the difference between searching an automobile and searching a home. The public interest in searching an automobile generally outweighs the interest of the individual in going on his way at least until he has been checked out. Our case is similar to the situation which is found in Chambers, supra, except that in the case at bar a warrant was obtained for the actual search, whereas in Chambers a search took place after the defendant was under arrest and it was conducted without benefit of a warrant; yet the search was upheld. Considering, then, that the Kansas officers and the Oklahoma officers did not act on suspicion but rather obtained as much information as possible, and considering that the situation was one of exigency, we are of the opinion that' the arrest was valid and that there was probable cause for the issuance of a warrant. The Supreme Court has recognized that the standards applicable to the determination of probable cause in a search case are substantially similar to the standards which are applied to the arrest of the person. Both derive from the Fourth Amendment and about the same quantum of evidence is required in order to constitute probable cause. Cf. Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). The affidavit used to obtain the search warrant recited all of the facts" }, { "docid": "3777463", "title": "", "text": "advance knowledge and planning of the search over such a prolonged time period. Essentially, the government’s contention is the existence of per se exigency for a warrantless search whenever an automobile is involved, regardless of the attendant circumstances. To uphold this search under the automobile exception would entail a radical expansion of that theory’s scope contrary to the underlying rationale for allowing the original deviation from the constitutional rule. Carroll v. United States, 1925, 267 U.S. 132, 153, 45 S.Ct. 280, 69 L.Ed. 543. In the absence of the compelling facts of exigency, reason for the exception fails. As the Supreme Court has reiterated, “The rationale of Chambers is that given a justified initial intrusion, there is little difference between a search on the open highway and a later search at the station. Here, we deal with the prior question of whether the initial intrusion is justified.” Coolidge v. New Hampshire, 1971, 403 U.S. 443, 463 n. 20, 91 S.Ct. 2022, 2036, 29 L.Ed.2d 564. See also Cardwell v. Lewis, 1974, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325. In. Chambers, a warrantless search of a car securely held in government custody was nevertheless reasonable only because the initial seizure had been proper due to exigent circumstances. Chambers, supra, 399 U.S. at 51—52, 90 S.Ct. 1975. See Note, Warrantless Searches and Seizures of Automobile, 87 Harv.L.Rev. 835, 843-844 (1974); Miles and Wefing, The Automobile Search and the Fourth Amendment — A Troubled Relationship, 4 Seton Hall L.Rev. 105, 130-132 (1972). The vehicle’s potential instant mobility has always been the crucial factor rendering the prior procurement of a search warrant impractical. Thus effective law enforcement requires immediate action because “the opportunity [for the] search is fleeting.” Chambers, supra at 51, 90 S.Ct. at 1981. But there is no per se exemption from the warrant requirement for automobiles. “The word ‘automobile’ is not a talismen in whose presence the Fourth Amendment fades away and disappears.” Coolidge, supra, 403 U.S. at 461-62, 91 S.Ct. at 2035. In the instant case the exigency factor is missing. There were no time constraints. On the" }, { "docid": "2347066", "title": "", "text": "it is also clear that the Supreme Court, in terms of the circumstances justifying a warrantless search, has long distinguished between an automobile and a home or office. Carroll v. United States, 267 U.S. 132, 153, 45 S.Ct. 280, 285, 69 L.Ed. 453 (1925); Chambers v. Maroney, 399 U.S. 42, 48, 90 S.Ct. 1975, 1979, 26 L.Ed.2d 419 (1970), reh. den., 400 U.S. 856, 91 S.Ct. 23, 35 L.Ed.2d 297 (1970). This distinction is premised on the rationale of Carroll that there is: a necessary difference between a search of a store, dwelling house, or other structure in respect of which a proper official warrant readily may be obtained and a search of a ship, motor boat, wagon or automobile for contraband goods, where it is not practicable to secure a warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought. 267 U.S. at 153, 45 S.Ct. at 285. For the automobile exception to apply, the arresting officer must have probable cause to believe that the vehicle contains contraband or the fruits or instrumentalities of crime, and exigent circumstances must exist which would make the securing of a warrant impracticable. Carroll v. United States, supra; Coolidge v. New Hampshire, supra. Undoubtedly, both elements must exist for the exception to apply. As stated in Coolidge v. New Hampshire, 403 U.S. at 468, 91 S.Ct. at 2039, no amount of probable cause can justify a warrantless search and seizure absent exigent circumstances. Furthermore, as noted by the Supreme Court in Almeida-Sanchez v. United States, 413 U.S. 266, 269, 93 S.Ct. 2535, 2537-38, 37 L.Ed.2d 596 (1973), “the Carroll doctrine does not declare a field day for police in searching automobiles. Automobile or no automobile, there must be probable cause for the search.” In the present matter, both elements required under the automobile exception are present. The Court has previously found that probable cause existed under the facts and circumstances of this case. What remains to be determined, therefore, is whether the circumstances attending the arrest and search displayed the required exigent" }, { "docid": "8429744", "title": "", "text": "the agents approached the stopped vehicle, they again smelled the odor of marijuana emanating from the open door. The vehicle was searched immediately, without warrant, and 217 kilos of marijuana were seized. Church contends that, even if the agents had probable cause to search the automobile at the time when it was finally stopped, the circumstances did not justify a search without a warrant. He bases his contention on four grounds: (a) that the search cannot be justified under the automobile exception of Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), and Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); (b) that the search cannot be classified as a “border search” under Al-meida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973); (c) that the “plain view” doctrine, as expounded in Coolidge v. New Hampshire, supra, is inapplicable; and (d) that the search cannot be justified as a “search incident to an arrest” under Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1968). Because this ease is controlled by our prior holdings in United States v. Cohn, 472 F.2d 290 (9th Cir., 1970), only the first issue is reached. As in Cohn, supra, there were “exigent circumstances” at the time the agents first approached the parked vehicle and therefore a search without a warrant would have been justified at that time. Coolidge v. New Hampshire, supra, Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Carroll v. United States, supra. Although unoccupied, the automobile was parked on a public street, was known to have just come from an area having a high incidence of marijuana smuggling, and was subject to being moved again at any time and driven outside the jurisdiction. These factors, coupled with the early hour at which the vehicle was initially observed, the agents’ discovery of a kilo brick of marijuana in plain view inside the automobile and their detection of the odor of marijuana, provided more than ample justification for a warrantless" }, { "docid": "893550", "title": "", "text": "and warrant requirements still have force in the context of such a search. There is no case which establishes the proposition that law enforcement officers in “every conceivable circumstance” may dispense with the warrant requirement in the context of an automobile search. Chambers v. Maroney, 399 U.S. 42, 50, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). “The word ‘automobile’ is not a talisman in whose presence the Fourth Amendment fades away and disappears.” Coolidge v. New Hampshire, 403 U.S. 443, 461-62, 91 S.Ct. 2022, 2035, 29 L.Ed.2d 564 (1971). Indeed, the Government concedes as much. Appellant’s Brief at 9. Nevertheless, the Fourth Amendment requirements have been relaxed somewhat in the specific situation where the police have probable cause to search a stopped automobile and circumstances make securing a warrant impracticable. The Court has endorsed this more permissive approach on two grounds. First, the cases delineate an “exigent circumstances” exception to the warrant requirement founded upon judicial awareness of an automobile’s mobility and the often “fleeting” opportunity to conduct a search once probable cause has been obtained. Carroll v. United States, 267 U.S. 132, 153, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Dyke v. Taylor Implement Co., 391 U.S. 216, 221, 88 S.Ct. 1472, 20 L.Ed.2d 538 (1968); Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). This Court has also recognized that it would often be unduly burdensome and unreasonably restrictive to require the police to post a guard and repair to the courthouse for a warrant once they have probable cause to search. United States v. Free, 141 U.S.App.D.C. 198, 437 F.2d 631, 635 (1970). Hence, when obtainment of a warrant would unreasonably impair police efficiency by precluding the seizing of the “fleeting instant” or else unreasonably burden effective law enforcement by requiring the expenditure of valuable resources in immobilizing and watching a vehicle, the Fourth Amendment countenances an exception to the warrant requirement. Second, a different standard for automobiles has also been rationalized on the ground that individuals have a lessened expectation of privacy when traveling in autos — a car travels in" }, { "docid": "15036881", "title": "", "text": "followed, on the basis of marijuana found in the motor home. A warrantless search is “per se unreasonable, unless the police can show that it falls within one of a carefully defined set of exceptions based on the presence of ‘exigent’ circumstances.” Coolidge v. New Hampshire, 1971, 403 U.S. 443, 474-475, 91 S.Ct. 2022, 2042, 29 L.Ed.2d 564. An exception exists as to the search of a moving vehicle, when probable cause exists for such a search. The seminal case as to warrantless searches of vehicles is Carroll v. United States, 1925, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 453, where the Court held: “ . . . that the guaranty of freedom from unreasonable searches and seizures by the Fourth Amendment has been construed, practically since the beginning of the government, as recognizing a necessary difference between a search of a store, dwelling house, or other structure in respect of which a proper official warrant readily may be obtained and a search of a ship, motor boat, wagon, or automobile for contraband goods, where it is not practicable to secure a warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought. “Having thus established that contraband goods concealed and illegally transported in an automobile or other vehicle may be searched for without a warrant, we come now to consider under what circumstances such search may be made. * * * * * * The measure of legality of such a seizure is . that the seizing officer shall have reasonable or probable cause for believing that the automobile which he stops and seizes had contraband liquor therein which is being illegally transported.” 267 U.S. at 153, 155-156, 45 S.Ct. at 285-286. See Almeida-Sanchez v. United States, 1973, 413 U.S. 266, 269, 93 S.Ct. 2535, 2537, 37 L.Ed.2d 596; Chambers v. Maroney, 1970, 399 U.S. 42, 49, 90 S.Ct. 1975,1980, 26 L.Ed.2d 419; Potter v. United States, 5 Cir. 1966, 362 F.2d 493, 497. Thus, to justify the stop and search without a warrant of the vehicle driven" }, { "docid": "16641979", "title": "", "text": "to suppress was made in the case charging Muhammad with the second robbery, the government had given Muhammad notice of its intention also to use the evidence at the trial for the first robbery. Therefore, the single suppression hearing controlled both trials. MURNAGHAN, Circuit Judge, dissenting: I respectfully dissent. It is true that the FBI agents had probable cause to search immediately following Muhammad’s arrest; indeed, Muhammad concedes as ' much. Probable cause alone, however, is not sufficient to authorize a search, Walter v. United States, 447 U.S. 649, 657-58 n.10, 100 S.Ct. 2395, 2401-2402 n.10, 65 L.Ed.2d 410 (1980); there must also be a warrant for the search, or exceptional circumstances which excuse the failure to obtain a warrant. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967); McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 193, 93 L.Ed. 153 (1948). No such circumstances existed here; consequently, the warrantless search by FBI agents of the trunk of Muhammad’s car violated the Fourth Amendment, and the evidence seized during the course of that search should have been suppressed. “The word ‘automobile’ is not a talisman in whose presence the Fourth Amendment fades away.” Coolidge v. New Hampshire, 403 U.S. 443, 461-62, 91 S.Ct. 2022, 2035-2036, 29 L.Ed.2d 564 (1971); rather, the so-called “automobile exception” to the Fourth Amendment’s warrant requirement is a subset of the exigent circumstances exception to the Fourth Amendment. Coolidge v. New Hampshire, supra, 403 U.S. at 460-62, 91 S.Ct. at 2034-2035; Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). That is, the fact that the subject of the search is an automobile, which often is possessed of great mobility, is a factor to be considered in assessing whether the circumstances are exigent so as to excuse the failure to obtain a warrant, but is not dispositive; there must still be exigency. There was no exigency here. At approximately 10:30 a. m., within a short time after the robbery of a bank, FBI agents proceeded to the residence of a person" }, { "docid": "4481943", "title": "", "text": "States, 389 U.S. 347, 357 [88 S.Ct. 507, 514, 19 L.Ed.2d 576]; Coolidge v. New Hampshire, 403 U.S. 443, 454-455 [91 S.Ct. 2022, 2031-2032, 29 L.Ed. 2d 564]; Chambers v. Maroney, 399 U.S. 42, 51 [90 S.Ct. 1975, 1981, 26 L.Ed.2d 419].” Schneckloth v. Busta-monte, 412 U.S. 217, 218, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973). One of these exceptions concerns automobiles. Thus, under Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), an unconsented search of an automobile may be conducted without a warrant and without probable cause for arrest, where the police have probable cause to believe it is carrying contraband. However, “the Carroll doctrine does not declare a field day for the police in searching automobiles. Automobiles or no automobiles, there must be probable cause for the search.” Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973). Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974), extended the Carroll mobile vehicle exception to the warrant-less seizure of an immobile and unoccupied automobile and examination of its exterior in an impoundment area. Card-well did not, however, eliminate the re quirement of probable cause. Id. 589-590, 94 S.Ct. 2464. The case before us now, however, does not involve the search of an automobile. The evidence is uncontroverted that the gun became visible to the police only after Cupps was ordered out of the automobile. If the police were rightfully in the position from which they observed the weapon, the plain view exception would have been applicable and they could have seized the gun without a warrant. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968). The question which is presented, then, is whether, in ordering Cupps out of the car, the police exceeded what we assume, arguendo, was their lawful authority to stop him for the purpose of examining his driver’s license. In the absence of consent, this action was a seizure under the Fourth Amendment. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)." }, { "docid": "15200818", "title": "", "text": "defendants other than the victim of the search or seizure are outweighed by the “further encroachment upon the public interest in prosecuting those accused of crime and having them acquitted or convicted on the basis of all the evidence which exposes the truth.” Alderman v. United States, supra, 394 U.S. at 174-175 [89 S.Ct. 961]. (Footnote omitted.) Id.,--U.S. at -, 96 S.Ct. at 3049. Consideration must also be given to another very recent case of the Supreme Court, namely, South Dakota v. Opperman, -U.S.-, 96 S.Ct. 3092, 48 L.Ed.2d - (1976) (44 L.W. 5294 decided July 6, 1976) in which the warrantless inventory search of the vehicle was approved. Chief Justice Burger, writing for the Court, said: This Court has traditionally drawn a distinction between automobiles and homes or offices in relation to the Fourth Amendment. Although automobiles are “effects” and thus within the reach of the Fourth Amendment, Cady v. Dombrowski, 413 U.S. 433, 439 [93 S.Ct. 2523, 37 L.Ed.2d 706] (1973), warrant- less examinations of automobiles have been upheld in circumstances in which a search of a home or office would not. Cardwell v. Lewis, 417 U.S. 583, 589 [94 S.Ct. 2464, 41 L.Ed.2d 325] (1974); Cady v. Dombrowski, 413 U.S., at 439-440 [93 S.Ct. 2523]; Chambers v. Maroney, 399 U.S. 42, 48 [90 S.Ct. 1975, 26 L.Ed.2d 419] (1970). The reason for this well-settled distinction is twofold. First, the inherent mobility of automobiles creates circumstances of such exigency that, as a practical necessity, rigorous enforcement of the warrant requirement is impossible. Carroll v. United States, 267 U.S. 132, 153-154 [45 S.Ct. 280, 69 L.Ed. 543] (1925); Coolidge v. New Hampshire, 403 U.S. 443, 459-460 [91 S.Ct. 2022, 29 L.Ed.2d 564] (1971). But the Court has also upheld warrantless searches where no immediate danger was presented that the car would be removed from the jurisdiction. Chambers v. Maroney, 399 U.S., at 51-52 [90 S.Ct. 1975]; Cooper v. California, 386 U.S. 58 [87 S.Ct. 788, 17 L.Ed.2d 730] (1967). Besides the element of mobility, less rigorous warrant requirements govern because the expectation of privacy with respect to one’s automobile" }, { "docid": "2575026", "title": "", "text": "U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576, 585 (1967), quoted in Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 2031, 29 L.Ed.2d 564, 575 (1971); United States v. Watson, 423 U.S. 411, 425, 96 S.Ct. 820, 828, 46 L.Ed.2d 598, 599, 44 U.S.L.W. 4112, 4116, 4117 (1976) (Powell, J., concurring). The burden, moreover, “is on those seeking the exemption to show the need for it.” United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 95, 96 L.Ed. 59, 64 (1951). At the first suppression hearing, the Government sought to justify the war-rantless search of the footlocker under the so-called automobile exception. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); see Texas v. White, 423 U.S. 67, 96 S.Ct. 304, 46 L.Ed.2d 209 (1975). It argued that as the vehicle itself could have been searched without a warrant, so also could the footlocker, as part of its contents. See United States v. Tramunti, 513 F.2d 1087, 1104-05 (2d Cir. 1975); United States v. Soriano, 497 F.2d 147 (5th Cir. 1974) (en banc). But the district court, quoting Coolidge v. New Hampshire, supra, 403 U.S. at 461-62, 91 S.Ct. at 2035, 29 L.Ed.2d at 580 (Stewart, J.), to the effect that “[t]he word ‘automobile’ is not a talisman in whose presence the Fourth Amendment fades away and disappears,” held that “there was no nexus between the search and the automobile, merely a coincidence.” It pointed out that the agents had monitored the progress of the porter and defendants as they moved the footlocker from the station to the vehicle. The arrest and seizure occurred just after the footlocker had been deposited in the parked car’s trunk. The trunk lid was still open, the driver was not yet at the wheel, and the motor had not yet been started. “Under the circumstances,” said the court, “the floor of the automobile trunk was nothing more than a platform or resting place for the footlocker.” We agree. No" }, { "docid": "2347065", "title": "", "text": "under the facts and circumstances of the present case, wherein exigent circumstances exist affecting the commanding officer’s interest in maintaining the security, order and discipline of his post that the search was properly and duly authorized and was reasonable within the meaning of the Fourth Amendment. AUTOMOBILE EXCEPTION The Court also finds that the search and seizure which occurred in this case is valid under the so-called “automobile exception” to the warrant requirement of the Fourth Amendment. It is well established that searches conducted outside the judicial process are per se unreasonable under the Fourth Amendment — subject only to a few specially established and well delineated exceptions. Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S. Ct. 2022, 2032, 29 L.Ed.2d 564, citing Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). While it is equally well established under Coolidge that “[t]he word ‘automobile’ is not a talisman in whose presence the Fourth Amendment fades away and disappears,” 403 U.S. at 461-62, 91 S.Ct. at 2035, it is also clear that the Supreme Court, in terms of the circumstances justifying a warrantless search, has long distinguished between an automobile and a home or office. Carroll v. United States, 267 U.S. 132, 153, 45 S.Ct. 280, 285, 69 L.Ed. 453 (1925); Chambers v. Maroney, 399 U.S. 42, 48, 90 S.Ct. 1975, 1979, 26 L.Ed.2d 419 (1970), reh. den., 400 U.S. 856, 91 S.Ct. 23, 35 L.Ed.2d 297 (1970). This distinction is premised on the rationale of Carroll that there is: a necessary difference between a search of a store, dwelling house, or other structure in respect of which a proper official warrant readily may be obtained and a search of a ship, motor boat, wagon or automobile for contraband goods, where it is not practicable to secure a warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought. 267 U.S. at 153, 45 S.Ct. at 285. For the automobile exception to apply, the arresting officer must have probable cause to believe" }, { "docid": "16374313", "title": "", "text": "argument Swanson argues that the seizure of his car was without any legal justification, as the agents did not have probable cause. He argues that at the time of the seizure, the agents did not have any information that Rick (the target of the agents’ arrest warrant) had been in the car for over a month, and had no information that there was evidence of a crime inside the car. We review the district court’s decision on Swanson’s motion to suppress under “two complementary standards. First, the district court’s findings of fact are upheld unless clearly erroneous. Second, the court’s legal conclusion as to the existence of probable cause is reviewed de novo.” United States v. Leake, 998 F.2d 1359, 1362 (6th Cir.1993) (citations omitted). A warrantless seizure of an automobile is reasonable if there is “probable cause that an automobile contains evidence or fruits of a crime plus ‘exigent circumstances.’ ” United States v. Beck, 511 F.2d 997, 1001 (6th Cir.1975). The government urges us to hold that the “automobile exception” to the warrant requirement justified the seizure and subsequent search of Swanson’s car. However, the question requires more than a mere invocation of the automobile exception. The Supreme Court in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), stated that “[t]he word ‘automobile’ is not a talisman in whose presence the Fourth Amendment fades away and disappears.” Id. at 461, 91 S.Ct. at 2035. The Court in Coolidge distinguished between the seizure of an automobile parked in the defendant’s driveway and one that the po lice have stopped and is readily mobile. Id. at 461 n. 8, 91 S.Ct. at 2036. The Supreme Court’s holding in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), extended only to warrantless searches of automobiles where the searching officer had probable cause and the car was stopped on the highway. Id. at 156, 45 S.Ct. at 286. In Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), the Court held that if a warrantless search is" }, { "docid": "16374314", "title": "", "text": "requirement justified the seizure and subsequent search of Swanson’s car. However, the question requires more than a mere invocation of the automobile exception. The Supreme Court in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), stated that “[t]he word ‘automobile’ is not a talisman in whose presence the Fourth Amendment fades away and disappears.” Id. at 461, 91 S.Ct. at 2035. The Court in Coolidge distinguished between the seizure of an automobile parked in the defendant’s driveway and one that the po lice have stopped and is readily mobile. Id. at 461 n. 8, 91 S.Ct. at 2036. The Supreme Court’s holding in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), extended only to warrantless searches of automobiles where the searching officer had probable cause and the car was stopped on the highway. Id. at 156, 45 S.Ct. at 286. In Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), the Court held that if a warrantless search is justified under Carroll, the police may seize the car and search it at the station house without a warrant. Id. at 52, 90 S.Ct. 1975. In Coolidge, the Court stated that the automobile exception to the warrant requirement extended only to circumstances in which “it is not practicable to secure a warrant.” Coolidge, 403 U.S. at 462, 91 S.Ct. at 2036 (quoting Carroll, 267 U.S. at 153, 45 S.Ct. at 285). It held that Carroll would not have justified a warrantless search of Coolidge’s car at the time of his arrest, and thus, the subsequent search at the station house was also illegal. Id. at 463, 91 S.Ct. at 2036. The reasons the Court ultimately concluded that a warrantless search of Coolidge’s car would not have been justified by the automobile exception are instructive in the analysis of the present case. The Court stated that what distinguished the seizure of Coolidge’s car from the search in Carroll was that there was “no alerted criminal bent on flight, no fleeting opportunity on an open highway after" }, { "docid": "893549", "title": "", "text": "with a dangerous weapon, and Robinson was additionally charged with two counts of carrying a dangerous weapon. Subsequently, on May 17, 1974, Robinson filed a motion to suppress the fruits of the automobile search. On the basis of the facts just recounted, the District Court, after hearings held on June 21 and 24, 1974, granted Robinson’s motion to suppress the evidence. While finding probable cause to search, it nevertheless held the Government had failed to prove sufficient exigency to justify the failure of the police to obtain a search warrant and suppressed the fruits of the automobile search. II. We start from the premise that law enforcement officers in order to obtain legal validation of their efforts must still comply with the requirements of the Fourth Amendment when conducting a search of an automobile. While the Supreme Court has permitted a relaxation of certain Fourth Amendment standards in the context of automobile searches and seizures, see Cardwell v. Lewis, 417 U.S. 583, 589-90, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974), the probable cause, neutral magistrate and warrant requirements still have force in the context of such a search. There is no case which establishes the proposition that law enforcement officers in “every conceivable circumstance” may dispense with the warrant requirement in the context of an automobile search. Chambers v. Maroney, 399 U.S. 42, 50, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). “The word ‘automobile’ is not a talisman in whose presence the Fourth Amendment fades away and disappears.” Coolidge v. New Hampshire, 403 U.S. 443, 461-62, 91 S.Ct. 2022, 2035, 29 L.Ed.2d 564 (1971). Indeed, the Government concedes as much. Appellant’s Brief at 9. Nevertheless, the Fourth Amendment requirements have been relaxed somewhat in the specific situation where the police have probable cause to search a stopped automobile and circumstances make securing a warrant impracticable. The Court has endorsed this more permissive approach on two grounds. First, the cases delineate an “exigent circumstances” exception to the warrant requirement founded upon judicial awareness of an automobile’s mobility and the often “fleeting” opportunity to conduct a search once probable cause has been" } ]

[ { "docid": "19652777", "title": "", "text": "EDITH H. JONES, Chief Judge: Agustín Pineda-Arrellano (“Pineda”) appeals his guilty plea conviction and sentence for illegal reentry. Pineda argues that the felony and aggravated felony provisions of 8 U.S.C. § 1326(b)(1) and (b)(2) are unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because the courts treat a defendant’s prior felony conviction as a statutory ground for a sentencing enhancement rather than as an element of the offense, which, pursuant to the Sixth Amendment, should be presented to the jury. Pineda’s case is one of hundreds, if not thousands, in this circuit in which counsel have raised this constitutional challenge. We take this opportunity to state that this issue no longer serves as a legitimate basis for appeal. Pineda makes the familiar contention that Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), was incorrectly decided and that a majority of the Supreme Court would overrule it in light of the subsequent decision in Apprendi. We have repeatedly rejected such arguments on the basis that Almendarez-Torres remains binding precedent until and unless it is officially overruled by the Supreme Court. See, e.g., United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.2005). Pineda properly concedes that his argument is foreclosed by Almendarez-Torres and circuit precedent, but he nevertheless raised it as his sole appellate issue to preserve it for Supreme Court review. This court has patiently entertained the identical argument in countless cases. Now, however, a majority of the Supreme Court has reaffirmed Almendarez-Torres in James v. United States, - U.S. -, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007), stating that “we have held that prior convictions need not be treated as an element of the offense for Sixth Amendment purposes.” Id. at 1600 n. 8 (citing Almendarez-Torres ). Because the Supreme Court treats Almendarez-Torres as binding precedent, Pineda’s argument is fully foreclosed from further debate. That James interpreted the Armed Career Criminal Act is not a distinguishing feature from the illegal reentry statute under which this appellant was convicted, because both statutes enhance" } ]

[ { "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": "6938530", "title": "", "text": "committed against the same victim (but the victims were closely related to each other and had a relationship with the defendant), they were the identical offense, were committed at the identical geographic location, and were barely separated in time — literally by a matter of minutes. Emphasizing temporal proximity but in pari materia with all other pertinent facts, we are firmly convinced that the cases are “related” for purposes of § 4A1.2. Failure to treat the two cases as related in calculating Moreno’s Criminal History Category produced an erroneously high sentencing range. Moreno’s criminal history score should have been increased by only three points, not six, because his sentence resulted from related cases. We therefore vacate Moreno’s sentence and remand for resentencing within a sentencing range of 57-71 months, the range produced when a criminal history score of 7 rather than 10 is used to reach a Criminal History Category of IV, and is applied in conjunction with his offense level of 21. SENTENCE VACATED; REMANDED FOR RESENTENCING. . 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). . Moreno expressly acknowledges that he raises the Almendarez-Torres claim solely to preserve it for further review on the basis of the Supreme Court's opinion in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) which expressed doubt about the correctness of its Almendarez-Torres decision. .U.S. Sentencing Guidelines Manual § 4A1.2(a)(2), cmt. n.3 (2000). . 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). . 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). . Almendarez-Torres, 523 U.S. at 235, 118 S.Ct 1219. . See United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.2000)(per curiam). . United States v. Huskey, 137 F.3d 283, 285 (5th Cir. 1998). . United States v. Fitzhugh, 984 F.2d 143, 146-47 (5th Cir.1993), 'cert denied, 510 U.S. 895, 114 S.Ct. 259, 126 L.Ed.2d 211 (citing United States v. Garcia, 962 F.2d 479 (5th Cir. 1992)) (noting absence of express holding on this subject and opting for de novo review). . U.S. Sentencing Guidelines Manual § 4A1.2, cmt." }, { "docid": "12847396", "title": "", "text": "the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” The crime of illegal reentry after deportation provides a 2-year maximum sentence pursuant to § 1326(a) for an alien who reenters the United States after having been deported. That maximum sentence is increased to 10 years pursuant to § 1326(b)(1) if the alien had a prior felony conviction, and to 20 years pursuant to § 1326(b)(2) if the alien had a prior aggravated felony conviction. While a finding that the prior felony conviction qualifies as “aggravated” is a fact that can increase the defendant’s sentence beyond the initially prescribed maximum sentence, the plain language of Apprendi excepts the fact of prior convictions from its holding. Therefore, there can be no Apprendi error in this case. The Court in Apprendi did not overrule its decision in Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), which upheld the validity of the aggravated felony enhancement of § 1326(b)(2). United States v. Raya-Ramirez, 244 F.3d 976, 977 (8th Cir.), cert. denied, — U.S. -, 122 S.Ct. 223, 151 L.Ed.2d 160 (2001). The Almendarez-Torres Court held that in § 1326(b)(2), “Congress intended to set forth a sentencing factor ... and not a separate criminal offense.” 523 U.S. at 235, 118 S.Ct. 1219. The Court reasoned in part that recidivism is a traditional basis for increasing an offender’s sentence, id. at 243, 118 S.Ct. 1219, and that making the jury aware that the defendant’s prior felonies were “aggravated” carries a risk of unfair prejudice to the defendant that Congress would not have wanted to create, id. at 235, 118 S.Ct. 1219. The Court in Ap-prendi expressly refused to revisit the Almendarez-Torres case. 530 U.S. at 489-90, 120 S.Ct. 2348. Instead, the Court treated recidivism as a narrow exception to the general rule announced in the Ap-prendi decision. Id. at 490, 120 S.Ct. 2348; see also United States v. Aguayo-Delgado, 220 F.3d 926, 932 n. 4 (8th Cir.) (“The Court in Apprendi ... retained an exception for recidivism.”)," }, { "docid": "23492974", "title": "", "text": "felony. RodriguezMontelongo asserts that § 1326(b)(2) creates a separate offense and that an element of this separate offense is a prior aggravated-felony conviction. Because the indictment did not allege a prior aggravated-felony conviction, Rodriguez-Montelongo argues that the only offense charged was that under § 1326(a). Therefore, he contends that because § 1326(a) has a maximum 2-year sentence, the district court exceeded the statutory maximum by sentencing Rodriguez-Montelongo to 41 months in prison. Rodriguez-Montelongo recognizes that in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), the Supreme Court rejected an argument identical to the one he is making here. See id. at 235, 118 S.Ct. 1219. He contends, however, that in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the Supreme Court “cast serious doubt” on Almenda-rez-Torres ’s validity. See id. at 489, 120 S.Ct. 2348 (stating that “it is arguable that Almendarez-Torres was incorrectly decided”). Rodriguez-Montelongo asserts that he raises this issue here only to preserve it for possible Supreme Court review. In Almendarez-Torres, the Supreme Court held that the enhanced penalties in § 1326(b) were sentencing factors, rather than elements of separate offenses. See 523 U.S. at 235, 118 S.Ct. 1219 (“In sum, we believe that Congress intended to set forth a sentencing factor in subsection (b)(2) and not a separate criminal offense.”). The Court concluded specifically that a prior conviction need not be treated as an element of the offense, even if it increases the statutory maximum. See id. at 239-47,118 S.Ct. 1219. Although Rodriguez-Montelongo is correct that Apprendi cast doubt on the continued validity of Almendarez-Torres, it did not overrule that decision. See Ap-prendi 530 U.S. at 489-90, 120 S.Ct. 2348 (footnote omitted) (“Even though it is arguable that Almendarez-Torres was incorrectly decided, and that a logical application of our reasoning today should apply if the recidivist issue were contested, Ap-prendi does not contest the decision’s validity[,] and we need not revisit it for purposes of our decision today to treat the case as a narrow exception to the general rule we recalled at the" }, { "docid": "22703750", "title": "", "text": "any case law or reliable empirical evidence to support his position. Rodriguez cannot establish a violation of his equal protection rights because he has not overcome the strong presumption of the validity of non-application of a fast-track program. VI. In light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Rodriguez challenges the constitutionality of § 1326(b)’s treatment of prior felony and aggravated felony convictions as sentencing factors rather than elements of the offense that must be found by a jury. Blue brief, 43-52. This argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). United States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir.2007), cert. denied,— U.S.-, 128 S.Ct. 872, 169 L.Ed.2d 737 (2008). VII. For the foregoing reasons, Rodriguez’s sentence is AFFIRMED. . Each of these factual and legal bases for a different sentence were also presented to the district court either in argument or in the PSR. Accordingly, we apply the ordinary standard of review to this issue." }, { "docid": "22306371", "title": "", "text": "PER CURIAM: Defendant Hector Mario Latorre Bena-vides (“Latorre”) appeals from a judgment of conviction entered in the United States District Court for the Eastern District of New York, Sterling Johnson, Jr., Judge, following his plea of guilty to unlawfully reentering the United States without the permission of the United States Attorney General, after having been deported following conviction of an aggravated felony, in violation of 8 U.S.C. § 1326. Pursuant to § 1326(b), Latorre was sentenced principally to 46 months’ imprisonment. On appeal, he contends that under the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), § 1326(b), which authorizes a prison term of up to 20 years for a person whose deportation was subsequent to a conviction for commission of an aggravated felony, must be construed as setting out an offense distinct from that set out in § 1326(a), which does not mention prior convictions and limits the term of imprisonment to two years. Latorre argues that because the indictment did not allege his prior conviction, it set forth only the elements of § 1326(a), and the maximum prison term that could lawfully have been imposed on him was thus two years. Although the judgment of conviction requires a clerical correction, we reject La-torre’s contentions and affirm. Latorre expressly recognizes that the Supreme Court’s decision in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), “forecloses [ ]his argument” (La-torre brief on appeal at 3), and that the Supreme Court in Apprendi “declined] to overrule Almendarez-Torres ” (Latorre brief on appeal at 10); Latorre states that he has pursued this appeal simply in order to preserve his argument for review by the Supreme Court (see Latorre brief on appeal at 3). We agree that the issue raised by Latorre is squarely governed by Al-mendarez-Torres and is foreclosed. Al-mendarez-Torres held that § 1326(b) does not set out a separate offense but rather is a penalty provision with respect to a violation of § 1326(a) and merely increases the authorized prison term for an unlawfully reentering" }, { "docid": "23084532", "title": "", "text": "imprisonment, for an alien to reenter the country without permission after having previously been removed; Section 1326(b)(l)-(2) provides that aliens whose prior removal followed a conviction of certain crimes may be imprisoned for substantially longer terms. In Almendarez-Torres v. United States, the Supreme Court held that § 1326(b) set forth sen- tenting factors rather than separate offenses, and that the statute was constitutional. See 523 U.S. 224, 235, 247, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Raising an objection that was not raised below, Sarmiento-Funes contends that 8 U.S.C. § 1326(b) is unconstitutional, on its face and as applied, in light of Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), in which the Supreme Court held that facts that increase a sentence beyond the statutory maximum must as. a general matter be found by a jury. But Apprendi explicitly refrained from overruling Almendarez-Torres, and this circuit has consistently rejected Sarmiento-Funes’s position, stating that it is for the Supreme Court to overrule Almendarez-Torres. See, e.g., United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.2000). Sarmiento-Funes concedes that the issue is foreclosed by circuit precedent, and he presents the issue solely to preserve it for possible further review. III.' CONCLUSION For the foregoing reasons, the defendant’s conviction is AFFIRMED and his sentence is VACATED. The case is REMANDED to the district court for resen-tencing. . The record in this case includes a state court criminal information, but the information only tracks the language of the statute. This case accordingly does not involve the question of the extent to which the sentencing court can use charging papers to narrow down a broad statute in order to determine more precisely the nature of the conduct of which the defendant was convicted. See, e.g., Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990); United States v. Calderon-Pena, 339 F.3d 320 (5th Cir.2003), vacated & reh’g granted, 362 F.3d 293 (5th Cir.2004). Further, although the Presentence Investigation Report (PSR) contains some additional details possibly gleaned from a police report (although their provenance" }, { "docid": "22703749", "title": "", "text": "1278, 1280 (11th Cir.2006) (holding that the fast-track program is rationally related to the legitimate government interest of conserving prosecutorial and judicial resources as well as easing congestion in judicial districts with a high volume of immigration cases); United States v. Marcial-Santiago, 447 F.3d 715, 718-19 (9th Cir.2006) (holding that fast-track programs are justified by the benefits gained by the Government when defendants plead early in criminal proceedings and noting that Congress authorized early disposition programs without revising the terms of § 3553(a)(6); thus, necessarily providing that any resulting sentencing disparities were warranted); and Melendez-Torres, 420 F.3d at 52 (holding that no equal protection violation exists where the U.S. Attorney General and the U.S. Attorney for the district of Maine were best able to evaluate whether local conditions warranted a fast-track program or whether other reasonably conceivable objectives such as swifter adjudication, greater deterrence, and harsher sentences were more preferable). Rodriguez’s arguments are conclusory in nature. He does not show that this issue involves either a suspect class or fundamental rights, and does not provide any case law or reliable empirical evidence to support his position. Rodriguez cannot establish a violation of his equal protection rights because he has not overcome the strong presumption of the validity of non-application of a fast-track program. VI. In light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Rodriguez challenges the constitutionality of § 1326(b)’s treatment of prior felony and aggravated felony convictions as sentencing factors rather than elements of the offense that must be found by a jury. Blue brief, 43-52. This argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). United States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir.2007), cert. denied,— U.S.-, 128 S.Ct. 872, 169 L.Ed.2d 737 (2008). VII. For the foregoing reasons, Rodriguez’s sentence is AFFIRMED. . Each of these factual and legal bases for a different sentence were also presented to the district court either in argument or in the PSR. Accordingly, we apply the ordinary standard of review to this" }, { "docid": "6043205", "title": "", "text": "Molina, 172 F.3d 1048, 1058 (8th Cir.1999); United States v. Elliott, 89 F.3d 1360, 1370 (8th Cir.1996). Campbell argues that because the enhanced penalty under § 924(e)(1) increased his sentence to one greater than the statutory maximum proscribed for the base offense of being a felon in possession of a firearm, the Supreme Court decision in Apprendi requires the nature of those felonies to be pled in the indictment and proven to a jury if he is to be sentenced thereunder. Campbell contends that postApprendi, 18 U.S.C. § 924(e) is a substantive offense, distinct from the offense set out in § 922(g)(1). We hold this is a misreading of the Court’s decision in Apprendi. In Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), the defendant had been convicted of illegally reentering the United States after having been previously deported following conviction of aggravated felonies pursuant to 8 U.S.C. § 1326(b)(2). Almen-darez-Torres objected to his sentence of eighty-five months imprisonment, arguing that his indictment had not mentioned his earlier aggravated felony convictions. Therefore, he claimed that he could not be sentenced to more than two years imprisonment, which was the sentence applicable for one convicted of the same crime without the underlying previous convictions. See 8 U.S.C. § 1326(a) (describing the substantive offense and authorizing a sentence of up to two years imprisonment). The Fifth Circuit rejected this argument. United States v. Almendarez-Torres, 113 F.3d 515 (5th Cir.1996). The Supreme Court granted certiorari to resolve a conflict between the prevailing view of the circuit courts represented by the Fifth Circuit and a contrary position taken by the Ninth Circuit in United States v. Gonzalez-Medina, 976 F.2d 570 (9th Cir.1992) (holding that subsection (b)(2) constituted an offense distinct from that in subsection (a)). The Supreme Court affirmed the Fifth Circuit, holding “that Congress intended to set forth a sentencing factor in subsection (b)(2) and not a separate criminal offense.” Almendarez-Torres, 523 U.S. at 235, 118 S.Ct. 1219. More generally, the Court made clear that it found recidivism statutes “as typical a sentencing factor as one might" }, { "docid": "23473622", "title": "", "text": "but he asserts that he is raising the issue to preserve it for further review. Garcia-Mendez considered the Texas burglary of a habitation statute and held that “ ‘burglary of a habitation’ is equivalent to the enumerated [crime of violence] offense of ‘burglary of a dwelling.’ ” Id. Thus, as Valdez concedes, under the existing precedent of this court, the district court did not err in determining that Valdez’s prior burglary offense was a crime of violence. Valdez’s constitutional challenge to 8 U.S.C. § 1326(b) is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Although Valdez contends that Almendarez-Torres was incorrectly decided and that a majority of the Supreme Court would overrule Almendarez-Torres in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), we have repeatedly rejected such arguments on the basis that AlmendarezTorres remains binding. See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied, — U.S. -, 126 S.Ct. 298, 163 L.Ed.2d 260 (2005). Valdez properly concedes that his argument is foreclosed in light of Almendarez-Torres and circuit precedent, but he raises it here to preserve it for further review. AFFIRMED." }, { "docid": "22306372", "title": "", "text": "prior conviction, it set forth only the elements of § 1326(a), and the maximum prison term that could lawfully have been imposed on him was thus two years. Although the judgment of conviction requires a clerical correction, we reject La-torre’s contentions and affirm. Latorre expressly recognizes that the Supreme Court’s decision in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), “forecloses [ ]his argument” (La-torre brief on appeal at 3), and that the Supreme Court in Apprendi “declined] to overrule Almendarez-Torres ” (Latorre brief on appeal at 10); Latorre states that he has pursued this appeal simply in order to preserve his argument for review by the Supreme Court (see Latorre brief on appeal at 3). We agree that the issue raised by Latorre is squarely governed by Al-mendarez-Torres and is foreclosed. Al-mendarez-Torres held that § 1326(b) does not set out a separate offense but rather is a penalty provision with respect to a violation of § 1326(a) and merely increases the authorized prison term for an unlawfully reentering alien based on his predeportation conviction for an aggravated felony. See 523 U.S. at 235, 118 S.Ct. 1219. The Apprendi Court, in stating 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,” 120 S.Ct. at 2362-63, carved out an exception that is applicable to violations of § 1326 by stating that the Apprendi requirement is applicable to facts “[ojther than the fact of a prior conviction,” id. at 2362. Accordingly, we affirm Latorre’s conviction on the basis of Almendarez-Torres v. United States. We note that the judgment in this case contains a typographical error, stating that the statutory provision violated by Latorre was “ § 1236(a).” On remand, the district court should correct the judgment to refer instead to § 1326(a). We have considered all of Latorre’s contentions on this appeal and have found in them no basis for reversal. The conviction is affirmed, and the matter is remanded for correction of the judgment." }, { "docid": "16406246", "title": "", "text": "4A1.2(c)(l); United States v. Moore, 997 F.2d 30, 33 (5th Cir.1993). Alfaro only received a sentence of ten days imprisonment for his evading arrest conviction. Thus, the district court erred in assigning a criminal history point for this offense. Because we vacate Alfa-ro’s sentence based on the sixteen-level enhancement, however, we need not address whether the court’s erroneous imposition of the criminal history point is plain error requiring reversal. C. The Constitutionality of 8 U.S.C. § 1326(b) Finally, Alfaro argues that the “felony” and “aggravated felony” provisions of 8 U.S.C. §§ 1326(b)(1) and (2) are unconstitutional. While Alfaro notes that this argument appears to be foreclosed by the Supreme' Court’s decision in Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), he contends that Almendarez-Torres was wrongly decided. In support of his argument, he claims that Justice Thomas, who provided a critical fifth vote in Almendarez-Torres, now appears to have repudiated his position in Almendarez-Torres. Thus, Alfaro concludes that five members of the Supreme Court now appear to be of the view that Almendarez-Torres was incorrectly decided. Because Alfaro made no objection to the alleged constitutional error below, we review his claim for plain error. Olano, 507 U.S. at 732-37, 113 S.Ct. 1770; Knowles, 29 F.3d at 951. In this circuit, “[i]t is self-evident that basing a conviction on an unconstitutional statute is both ‘plain’ and ‘error’ .... ” Knowles, 29 F.3d at 951. Alfaro’s argument that §§ 1326(b)(1) and (2) are unconstitutional, however, fails in light of Almendarez-Torres and Fifth Circuit precedent. As Alfaro recognizes, in Almendarez-Torres, the Supreme Court effectively rejected his argument. See Almendarez-Torres, 523 U.S. at 235, 118 S.Ct. 1219. Almendarez-Torres has not been overruled and is still good law. Additionally, this court has repeatedly rejected arguments like the one made by Alfaro as being foreclosed by Almendarez-Torres. See, e.g., United States v. Mendez-Villa, 346 F.3d 568, 570-71 (5th Cir.2003) (per curiam) (holding that Almendarez-Torres remains binding despite Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)); United States v. Delgado-Nunez, 295 F.3d 494, 498" }, { "docid": "22847301", "title": "", "text": "the now-advisory Sentencing Guidelines was in effect when Fernandez-Cusco was sentenced in February 2005 for his illegal-reentry conviction. His base offense level of 8 was increased by 16 levels, pursuant to Sentencing Guideline § 2L1.2(b)(l)(A)(ii), the district court adopting the recommendation in the Presentence Investigation Report (PSR) that Fernandez^Cusco’s previous Minnesota sexual-conduct crime was a “crime of violence”. After a three-level aceeptance-of-responsibility reduction, his total offense level was 21, with an advisory guideline range of 46 to 57 months. Fernandez-Cusco was sentenced to 46 months in prison, followed by a two-year supervised release. II. As described, Fernandez-Cusco raises three issues. The principle issue concerns the erime-of-violence ruling. He concedes the other two issues are foreclosed by our precedent. A. Concerning his conviction and sentence, Fernandez-Cusco contends the “felony” and “aggravated felony” provisions of 8 U.S.C. § 1326(b) are unconstitutional. This issue is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Although Fernandez-Cusco maintains Al-mendarez-Torres was incorrectly decided and that a majority of the Supreme Court would overrule it in the light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), our court has repeatedly rejected this contention on the basis that Almendarez-Torres remains binding. See United States v. Garzcu-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied, — U.S.-, 126 S.Ct. 298, 163 L.Ed.2d 260 (2005). Fernandez-Cusco concedes this claim is foreclosed; he raises it only to preserve it for further review. B. Fernandez-Cusco was sentenced a few weeks after the Sentencing Guidelines were held in January 2005 to be only advisory. United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Nevertheless, post-Booker, district courts must still consider, and properly apply, the Guidelines. E.g., United States v. Villegas, 404 F.3d 355, 359 (5th Cir.2005); United States v. Mares, 402 F.3d 511, 518 (5th Cir.), cert. denied, — U.S. -, 126 S.Ct. 43, 163 L.Ed.2d 76 (2005). Fernandez-Cusco claims his prior guilty-plea conviction for criminal sexual conduct is not a crime of violence under the 2004 Guideline § 2L1.2(b)(l)(A)(ii). He did" }, { "docid": "23592819", "title": "", "text": "that by then.* nature were not testimonial. Id. Accordingly, we held that the introduction into evidence of the immigration file did not run afoul of Crawford and that the district court properly relied on official, non-testimonial public records admissible under the Federal Rules of Evidence, in determining that the defendant was a previously deported alien found in the United States without permission. Id. at 734. Although Gutierrez-Gonzales is an unpublished opinion and is not prece-dential, it is persuasive authority, see 5th CiR. R. 47.5.4, and we adopt its reasoning and holding. The CNR admitted into evidence in this case, reflecting the absence of a record that Rueda-Rivera had received consent to re-enter the United States, does not fall into the specific categories of testimonial statements referred to in Crawford. We decline to extend Crawford to reach such a document. We therefore hold that the district court properly admitted the CNR into evidence. B Rueda-Rivera argues that 8 U.S.C. §§ 1326(b)(1) and (b)(2) are unconstitutional in the light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because the fact of his prior conviction is an element of the offense, rather than a sentencing enhancement. As Rueda-Rivera acknowledges, this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). See United States v. Rivera, 265 F.3d 310, 312 (5th Cir.2001) (“Apprendi did not overrule Almendarez-Torres.”)', Apprendi, 120 S.Ct. 2348, 530 U.S. at 489-90. III For the foregoing reasons, the judgment of the district court is AFFIRMED." }, { "docid": "6833012", "title": "", "text": "penalty enhancement. The district court also rejected Reyes-Maya’s PSR objection and assigned one criminal history point based on his criminal mischief conviction. The district court sentenced Appellant using a total offense level of 21 and a criminal history category of V. The guideline range of imprisonment was 70 to 87 months, and the district court sentenced Appellant to 70 months’ imprisonment. Reyes-Maya now appeals his sentence. II. Reyes-Maya argues that the felony conviction that resulted in his increased sentence under 8 U.S.C. § 1326(a)(b)(2) was an offense element that should have been charged in the indictment. Reyes-Maya 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 seeks to preserve the issue for Supreme Court review in light of the decision in Apprendi. See Bousley v. United States, 523 U.S. 614, 622-23, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998)(noting that the futility of an argument at the time it should have been made is not “cause” for defaulting claim). The Court in Apprendi, while acknowledging that Almendarez-Torres may be logically inconsistent with that case, and therefore incorrectly decided, chose not to overrule that decision. Apprendi 530 U.S. at 489-90, 120 S.Ct. 2348; see also United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.2000), cert. denied, 531 U.S. 1202, 121 S.Ct. 1214, 149 L.Ed.2d 126 (2001). Ac cordingly this court remains bound by Almendarez-Torres, see Rodriguez de Quijas v. Shearson/American Express, 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1991) (stating precedent is controlling where it “has direct application in a case” even if “it appears to rest on reasons rejected in some other line of decisions.”)) and relief is denied on this ground. III. We review a district court’s inter.pretation of the Sentencing Guidelines de novo. United States v. Gadison, 8 F.3d 186,193 (5th Cir.1993). Generally, sentences for misdemeanor and petty offenses are counted in the calculation of a defendant’s criminal history score. U.S.S.G. § 4A1.2(e). However, certain offenses or offenses similar to them are excluded unless the sentence was" }, { "docid": "16942479", "title": "", "text": "requires the court to resolve disputed issues of fact before sentencing, the court can adopt facts contained in the PSR without inquiry as long as the “facts had an adequate evidentiary basis and the defendant does not present rebuttal, evidence.” United States v. Puig-Infante, 19 F.3d 929, 943 (5th Cir.1994). Rebuttal evidence must consist of more than a defendant’s objection; it requires a demonstration that the information is “materially untrue, inaccurate or unreliable.” Huerta, 182 F.3d at 364 (citations omitted). Although Tampico objected to a number of factual issues in the PSR, he did not introduce any rebuttal evidence. Thus, the district court did not err in accepting the PSR as evidence. III For the reasons stated above, Tampico’s conviction and sentence are AFFIRMED. Circuit Judge of the Eleventh Circuit, sitting by designation. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . For the purpose of Supreme Court review, Tampico also contends that the district court erred in enhancing his sentence under 18 U.S.C. § 2252A(b)(1) for a prior conviction relating to sexual abuse, because the prior conviction was not alleged in the indictment. Tampico claims that this is unconstitutional after the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), which found that sentencing factors must be proved beyond a reasonable doubt. Tampico recognizes, however, that this issue is foreclosed by the Supreme Court’s decision in Almendarez-Torres v. United States, 523 U.S. 224, 247, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). . Pattern of activity involving the sexual abuse or exploitation of a minor is defined as any combination of two or more separate instances of the sexual abuse or sexual exploitation of a minor by the defendant, whether or not the abuse or exploitation (A) occurred during the course of the offense; (B) involved the same or different victims; or (C) resulted in a conviction for such conduct. U.S.S.G. § 2G2.2, cmt. n.1. ." }, { "docid": "22666701", "title": "", "text": "8 U.S.C. §§ 1326(b)(1) and (2) are unconstitutional on their face and as applied in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). According to Garza-Lopez, the “felony” and - “aggravated felony” provisions found in these sections are essential elements of the offense that must be pled in the indictment and proved beyond a reasonable doubt, not sentencing enhancement factors that a judge should determine. He notes that in Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), the Supreme Court rejected this argument, holding that “Congress intended to set forth a sentencing factor in subsection (b)(2) [of 8 U.S.C. § 1326] and not a separate criminal offense.” Nevertheless, he argues that in light of Apprendi, there is reason to think that Almendarez-Torres was wrongly decided. While Garza-Lopez thinks there is reason to believe Almendarez-Torres was wrongly decided, he admits in his brief that his argument that 8 U.S.C. §§ 1326(b)(1) and (2) are unconstitutional is foreclosed in this circuit by Almendarez-Torres. He then states that he is simply raising this argument on appeal to preserve it for possible review by the Supreme Court. Because Garza-Lopez made no objection to the alleged constitutional error below, we review it for plain error. United States v. Knowles, 29 F.3d 947, 951 (5th Cir.1994). This court has held that “[i]t is self-evident that basing a conviction on an unconstitutional statute is both ‘plain’ and ‘error’ ....” Id. at 951. Garza-Lopez’s argument that §§ 1326(b)(1) and (2) are unconstitutional after Apprendi fails in light of Almendarez-Torres and Fifth Circuit precedent. As Garza-Lopez readily admits, in Almendarez-Torres, the Supreme Court effectively rejected his argument. See Almendarez-Torres, 523 U.S. at 235, 118 S.Ct. 1219. Furthermore, Apprendi did not overrule Almendarez-Torres. Instead, the Supreme Court stated in Apprendi that “we need not revisit [Almendarez-Torres] for purposes of our decision today to tréat the case as a narrow exception to the general rule we recalled at the outset.” Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. This court has repeatedly rejected arguments like the" }, { "docid": "22703613", "title": "", "text": "the sentences imposed are AFFIRMED. . 480 F.3d 713, 723 (5th Cir.2007). We note that the Supreme Court has granted certiorari on a similar question in United States v. Irizarry, 458 F.3d 1208 (11th Cir.2006), cert. granted - U.S. -, 128 S.Ct. 828, 169 L.Ed.2d 625 (2008). Absent an intervening Supreme Court case overruling prior precedent, we remain bound to follow our precedent even when the Supreme Court grants certiorari on an issue. United States v. Short, 181 F.3d 620, 624 (5th Cir.1999); Ellis v. Collins, 956 F.2d 76, 79 (5th Cir.1992). . Lopez also claims, in a point heading, that his due process rights were violated, but he fails completely to develop this argument in the body of his brief. Arguments inadequately briefed on appeal are waived. United States v. Freeman, 434 F.3d 369, 374 (5th Cir.2005). .Finally, Lopez contends that in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) the enhancement provisions in 8 U.S.C. § 1326(b) are unconstitutional. He acknowledges this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), but raises the issue only to preserve it for Supreme Court Review. See United States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir.2007), cert. denied - U.S. -, 128 S.Ct. 872, 169 L.Ed.2d 737 (2008)." }, { "docid": "22890765", "title": "", "text": "in Luna-Herrera. We therefore reaffirm our holding in Luna-Herrera. We also reject Garcia-Cardenas’s argument that the district court failed to ad dress his objection to section 2L1.2(b). The district court in fact addressed this objection, explaining that it was not inclined to fundamentally alter the way in which this provision has been applied. Because the district court was bound by our precedent, its explanation was sufficient. See Rita, 127 S.Ct. at 2469 (“[When] the record makes clear that the sentencing judge considered the evidence and arguments, we do not believe the law requires the judge to write more extensively.”). III. Garcia-Cardenas contends that, because the facts of his prior conviction were neither alleged in the indictment nor admitted by him, the district court violated Apprendi by increasing the statutory maximum under § 1326(b)(2). As Garcia Cardenas properly concedes, this argument is foreclosed by our precedent and that of the Supreme Court. In Almendarez-Torres v. United States, 523 U.S. 224, 226-27, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), the Supreme Court held that the fact of a prior conviction does not have to be determined by a jury before a sentencing court may use the conviction as the basis for an enhancement under § 1326. Garcia-Cardenas argues that we should limit Almendarez-Torres to its facts under the doctrine of constitutional doubt; that Almendarez-Torres has been overruled; and that § 1326(b) is unconstitutional. We have repeatedly rejected these arguments. See United States v. Salazar-Lopez, 506 F.3d 748, 751 n. 3 (9th Cir.2007), cert. denied, — U.S.-, 128 S.Ct. 2523, 171 L.Ed.2d 803 (2008); United States v. Beng-Salazar, 452 F.3d 1088, 1091 (9th Cir.2006); United States v. Covian-Sandoval, 462 F.3d 1090, 1096-97 (9th Cir.2006). Moreover, the Supreme Court continues to treat Almendarez-Torres as binding precedent. See James v. United States, 550 U.S. 192, 127 S.Ct. 1586, 1600 n. 8, 167 L.Edüd 532 (2007) (“[W]e have held that prior convictions need not be treated as an element of the offense for Sixth Amendment purposes.” (citing Almendarez-Torres, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350)). Accordingly, we are bound to reject Garcia-Cardenas’s arguments. IV." }, { "docid": "1911465", "title": "", "text": "of the Sentencing Guidelines, are reviewed de novo. E.g., United States v. Norris, 217 F.3d 262, 273 (5th Cir.2000) (Sentencing Guidelines); United States v. Rasco, 123 F.3d 222, 226 (5th Cir.1997), cert. denied, 522 U.S. 1083, 118 S.Ct. 868, 139 L.Ed.2d 765 (1998) (statutory interpretation). Contrary to Nava-Perez’s interpretation of § 1231(a)(5), it does not treat the alien’s removal as effective “from its original date”. Instead, it provides: “the prior order of removal is reinstated from its original date”. 8 U.S.C. 1231(a)(5) (emphasis added). It authorizes removal under the prior order “at any time after the reentry”. Id. (emphasis added). In short, the statute plainly contemplates, after the reentry, a second removal, under the reinstated prior order. Nava-Perez confuses reinstatement of the “order of removal” with his actual removal under that reinstated order. He was removed twice: once in 1997, and again in 1999, after his 1998 aggravated felony conviction. Although both removals are based on the same 1997 order, with the second being based on the order’s reinstatement, they are, nevertheless, separate removals. Because the 1999 removal was subsequent to 1998, when Nava-Perez committed an aggravated felony, he was subject to the enhanced penalty pursuant to the plain, unambiguous language of § 1326(b)(2) and U.S.S.G. § 2L1.2(b)(l)(A). B. Nava-Perez contends that, under Ap-prendi, his sentence violated due process because it exceeded the two-year maximum punishment for the offense charged. He concedes this contention is foreclosed by Almendarez-Toires v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) (8 U.S.C. § 1326(b)(2) is penalty provision and does not define separate crime; therefore, prior conviction supporting sentence enhancement does not have to be charged in indictment), but maintains Apprendi has cast Almendarez-Torres into serious doubt. As Nava-Perez recognizes, we cannot overrule Supreme Court precedent. Instead, he raises the issue to preserve it for possible review by the Supreme Court. III. For the foregoing reasons, the judgment is AFFIRMED." } ]

[ { "docid": "12701718", "title": "", "text": "PER CURIAM. This action arises under the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4321 et seq., and presents the issue of whether or not an Environmental Impact Statement (EIS) filed under section 102 of NEPA is adequate to meet the requirements of that statute. The district court held that the EIS was adequate and refused to give the plaintiffs the injunctive relief they sought. We affirm that decision. This litigation centers around the Harry S. Truman Dam and Reservoir Project being built by the U. S. Army Corps of Engineers (Corps) on the Osage River in west central Missouri. Originally the plaintiffs brought an action in the District Court for the Western District of Missouri seeking a declaration that an EIS was required for the project under NEPA and also seeking to enjoin all activities on the project until one was properly filed. District Judge John W. Oliver agreed that an EIS should be filed but refused to enjoin all ongoing activities related to the project. Environmental Defense Fund, Inc. v. Froehlke, 348 F.Supp. 338 (W.D.Mo.1972). Plaintiffs appealed to this Court, claiming that an injunction against all ongoing activities should have been issued. This Court affirmed Judge Oliver’s decision. Environmental Defense Fund, Inc. v. Froehlke, 477 F.2d 1033, 1037 (8th Cir. 1973). In the course of that earlier opinion we noted that the district court had retained jurisdiction of the matter and would have an opportunity to rule on the sufficiency of the EIS and “to review, under the arbitrary and capricious test, the decision made by the defendants with respect to proceeding with the project.” Id. at 1037. After the final EIS was completed the plaintiffs renewed their plea to have the EIS declared inadequate by the court and again asked for blanket injunctive relief until such time as an adequate statement was filed. Plaintiffs also sought review of the decision to continue with the project, claiming that the Corps had acted arbitrarily and capriciously. In a lengthy Memorandum Opinion Judge Oliver rejected the plaintiffs’ claims and refused to grant an injunction. Environmental Defense Fund," } ]

[ { "docid": "15754519", "title": "", "text": "To ensure the agency’s understanding of the statutory standards and its adequate consideration of the problem, we deem it important that the agency state its reasons for not preparing an EIS. Asphalt Roofing Ass’n v. ICC, 186 U.S.App.D.C. 1, 12, 567 F.2d 994, 1005 (1977); Maryland-Nat’l Capitol Park & Planning Comm’n v. United States Postal Serv., supra note 41, 159 U.S.App.D.C. at 168-169, 487 F.2d at 1039-1040; Arizona Pub. Serv. Co. v. FPC, 157 U.S.App.D.C. 272, 279, 483 F.2d 1275, 1282 (1973); Scientists’ Inst, for Public Information, Inc. v. Atomic Energy Comm’n, supra note 39, 156 U.S.App.D.C. at 410-411, 481 F.2d at 1094-1095; Hanly v. Kleindienst, supra note 40, 471 F.2d at 835-836. Here we find the information provided by GSA in its Environmental Analysis sufficient to meet this demand. . A revision or expansion of an agency program in a manner constituting major action significantly affecting the quality of human environment must be accompanied by an EIS. Andrus v. Sierra Club, supra note 45, - U.S. at -, 99 S.Ct. at 2343-2344, 60 L.Ed.2d at 955; S.Rep.No.296, 91st Cong., 1st Sess. 20 (1969). . See note 45 supra. The President has recently taken steps to eliminate free or subsidized parking for federal employees. See 15 Weekly Compilation of Presidential Documents 613 (Apr. 5, 1979). These actions are not yet effective, and even if they were, would not moot appellants’ claim that an EIS should be prepared whenever space in federal parking facilities is leased to federal employees. . Vermont Yankee Nuclear Power Corp. v. National Resources Defense Council, supra note 40, 435 U.S. at 551, 98 S.Ct. at 1215-1216, 55 L.Ed.2d at 484; Scientists’ Inst, for Public Information, Inc. v. Atomic Energy Comm’n, supra note 39, 156 U.S.App.D.C. at 407-408, 481 F.2d at 1091-1093; Environmental Defense Fund v. Corps of Engineers, 492 F.2d 1123, 1131 (5th Cir. 1974); Iowa Citizens for Environmental Quality v. Volpe, 487 F.2d 849, 852 (8th Cir. 1973); Trout Unlimited v. Morton, 509 F.2d 1276, 1283, 1286 (9th Cir. 1974). . See text supra at notes 3-4. . The employees pay the parking management firm" }, { "docid": "11120647", "title": "", "text": "argue that tardiness should bar relief which in any event should have been unnecessary. See generally Minnesota Public Interest Research Group v. Butz, 498 F.2d 1314, 1324 (8th Cir. 1974) (in banc); Environmental Defense Fund v. Tennessee Valley Authority, 468 F.2d 1164, 1182-83 (6th Cir. 1972). Similarly, it is appropriate to consider the extent to which the delay in filing suit may have been attributable to the agency’s failure to make available information which it is required to publicize. B. Prejudice. Unlike private interest litigation, when NEPA has been violated, considerations of administrative inconvenience, cost or delay which may be presented in answering a tardy suit are not appropriate considerations upon which to justify withholding equitable relief. The central consideration is whether interruption of the MASAQHE which is in progress would severely prejudice the public interest which the agency action is serving; however, “[d]elay and concomitant cost increases [in completing the project] would not alone justify noncompliance with the Act.” Conservation Society of Southern Vermont, Inc. v. Brine- gar, 508 F.2d 927, 937 (2d Cir. 1974) (Adams, J., sitting by designation), vacated and remanded on other grounds sub nom. Coleman v. Conservation Society of Southern Vermont, Inc., 423 U.S. 809, 96 S.Ct. 19, 46 L.Ed.2d 29 (1975) (mem). C. Environmental Policy Considerations. NEPA specifically contemplates that the administrative decisionmaking process will be burdened by the procedural requirements of § 102(2)(C), and that the “product” which the agency delivers will be diminished somewhat in order to accommodate environmental goals. Therefore, as long as some environmental harm can still be ameliorated, compliance with NEPA will generally be ordered. When, however, the irreversible commitment of resources has already produced most of the environmental harm which an EIS would have anticipated, the costs-benefits matrix facing the decisionmaker is significantly altered, and the marginal utility (in environmental benefit) of enjoining the project may be substantially lessened. See generally Arlington Coalition of Transportation v. Volpe, 458 F.2d 1323, 1329-30 (4th Cir.), cert. denied, 409 U.S. 1000, 93 S.Ct. 312, 34 L.Ed.2d 261 (1972). This is more likely when the district court finds that although the agency" }, { "docid": "23097113", "title": "", "text": "and analyzed by government geophysical personnel and that this data will be available prior to sale to support both pre- and post-sale lease management activities. . A sample matrix for one tract looks like this: . The importance scale ranges from 0 (no adverse effect) to 100 (complete destruction), while the proximity scale ranges from 0.0 (a tract beyond 10 miles) to 1.0 (a tract containing a valuable resource). The resulting environmental impact factor is a number derived by multiplying importance (IM) by proximity (PR). . Natural Resources Defense Council, Inc. v. Morton, 148 U.S.App.D.C. 5, 458 F.2d 827 (1972), which involved the sale of oil and gas leases on some 80 tracts of submerged lands, primarily off eastern Louisiana, referred without criticism, to that impact statement’s use of a matrix system very similar to the one utilized in this case. . These areas are used for such activities as testing guns, rockets, bombs, guided munitions, and other arms and conducting gunnery practice, electronic counter-measure activities, and acoustic and electronic-mine neutralizing operations. . Sierra Club v. Froehlke, 359 F.Supp. 1289, 1341 (S.D.Tex.1973), rev’d on other grounds, 499 F.2d 982 (5th Cir. 1974). . Natural Resources Defense Council, Inc. v. Morton, 337 F.Supp. 170, 172 (D.D.C.1972). . This practice was rejected in San Antonio Conservation Soc’y v. Texas Highway Dep’t, 446 F.2d 1013, 1023-24 (5th Cir. 1971), cert. denied, 406 U.S. 933, 92 S.Ct. 1775, 32 L.Ed.2d 136 (1972). . Section 102(2)(C). . Section 102(2)(F). . Natural Resources Defense Council, Inc. v. Grant, 355 F.Supp. 280 (E.D.N.C.1973). . 40 C.F.R. 1500 6(a). . 36 Fed.Reg. 19343. . 37 Fed.Reg. 15018. . E. g., Scientists’ Institute for Public Information, Inc. v. AEC, 156 U.S.App.D.C. 395, 481 F.2d 1079, 1086-87 (1973); Jones v. Lynn, 477 F.2d 885, 891 (1st Cir. 1973). . Calvert Cliffs’ Coordinating Comm., Inc. v. AEC, supra, 449 F.2d 1109, at 1114; Trout Unlimited v. Morton, supra, 509 F.2d at 1282, (9th Cir., 1974). . EDF v. Corps of Engineers (Tombigbee), supra, 492 F.2d 1123, at 1135. . Alternatives considered were: (1) modify the sale; (2) withdraw the sale with" }, { "docid": "7720374", "title": "", "text": "Engineers of the United States Army, 325 F.Supp. 749 (E.D.Ark.1971), dismissed, 342 F.Supp. 1211, aff’d 470 F.2d 289 (8th Cir. 1972), cert. denied, 412 U.S. 931, 93 S.Ct. 2749, 37 L.Ed.2d 160 (1973) where several expert witnesses commented at trial on the need for studies on stream life found in the Cossatot River proposed to be dammed. The studies were estimated to take several years in total to complete. The District Judge found that it was sufficient if the opinions alone as to the need for the study were made part of the EIS. “The decisionmakers can then determine whether to proceed without such a study or to postpone the project while such a study is being undertaken.” Id. at 760. Similar notice to the decisionmakers has been given here. . See Flood Control Act of 1938, Ch. 795, § 4, 52 Stat. 1218. . H.R.Doc.No.525, 89th Cong., 2d Session (1966). . Act of Nov. 7, 1966, Ch. 789, § 201 et. seq., 80 Stat. 1418. . The testimony before the District Court on this point was that the Congress, in providing for the Meramec Park Lake construction, “was endeavoring to satisfy the needs of the Basin for Flood control, recreation, water supply, low flow augmentation in the Meramec River, the lower Meramec River in the interest of water quality, fish and wildlife enhancement, some navigation and area redevelopment.” Testimony of Mr. Leo T. Briece, Head of the Meramec Basin Section and Project Coordinator, United States Army Engineer District, St. Louis, Missouri. . See e. g., Jones v. Lynn, 477 F.2d 885, 890 (1st Cir. 1973); Conservation Society of Southern Vermont, Inc. v. Secretary of Transportation, 508 F.2d 927, 934 (2d Cir. 1974), cert. granted, judgment vacated & remanded sub nom. Coleman v. Conservation Society of Southern Vermont, Inc., 423 U.S. 809, 96 S.Ct. 19, 46 L.Ed.2d 29, 44 U.S.L.W. 3199 (1975); Scientists’ Institute for Public Information, Inc. v. AEC, 156 U.S.App.D.C. 395, 481 F.2d 1079 (1973); Trout Unlimited v. Morton, 509 F.2d 1276, 1285 (9th Cir. 1974). . 382 F.Supp. at 622. . Cf. Judge Oliver in Environmental Defense" }, { "docid": "10068949", "title": "", "text": "(10th Cir. 1973), cert. denied, 416 U.S. 936, 94 S.Ct. 1935, 40 L.Ed.2d 286 (1974). Nevertheless the court placed considerable weight on Conservation Society of Southern Vermont, Inc. v. Sec’y of Transportation, 508 F.2d 927 (2d Cir. 1974) which held that the FHWA cannot delegate EIS preparation. During the pendency of the present appeal, however, this decision was vacated by the Supreme Court for reconsideration in light of Pub.L. No. 94-83 which added a new section 102(2)(D) to NEPA. On remand the second circuit reversed its previous decision and held that “[ujnder the law as amended the state agency may prepare the EIS provided the federal agency ‘furnishes guidance and participates in such preparation’ and provided ‘the responsible Federal official independently evaluates such statement prior to its approval and adoption.’ ” Conservation Society of Southern Vermont, Inc. v. Sec’y of Transportation, 531 F.2d 637, 639 (2d Cir. 1976). We agree that under such circumstances the federal agency’s obligation to prepare the EIS may be delegated to the state. With regard to the reliance on the efforts of Fay, Spofford and Thorndike, we do not think the EIS was necessarily fatally undermined by their direct participation. See Sierra Club v. Lynn, supra at 59. As the district court noted, private consulting firms that are involved in a construction project have been permitted to participate in drafting the EIS on the same project. Life of the Land v. Brinegar, supra at 467-68; see Sierra Club v. Lynn, supra at 59-60. But see Greene County Planning Bd. v. Federal Power Comm’n, 455 F.2d 412 (2d Cir.), cert. denied, 409 U.S. 849, 93 S.Ct. 56, 34 L.Ed.2d 90 (1972); Committee to Stop Route 7 v. Volpe, 346 F.Supp. 731, 741 (D.Conn.1972), aff’d sub nom., Citizens for Balanced Environment and Transportation v. Volpe, 503 F.2d 601 (2d Cir. 1974), cert. denied, 423 U.S. 870, 96 S.Ct. 135, 46 L.Ed.2d 100, 44 U.S.L.W. 3205 (1975). We must stress that when project consultants are also used in preparation of the EIS considerable caution should be exercised by the federal agency. The agency clearly may not substitute a" }, { "docid": "5982837", "title": "", "text": "possible under its other statutory obligations — consider alternatives to its actions which would reduce environmental damages. That principle establishes that consideration of environmental matters must be more than a pro forma ritual.” Calvert Cliffs’, supra, 449 F.2d at 1128 (emphasis in original). Cf. Nat’l Helium Corp. v. Morton, 486 F.2d 995, 1001-1002 (10th Cir. 1973); Conservation Society of Southern Vermont v. Secretary of Transportation, supra, 362 F.Supp. at 632-636. Although the Second Circuit has yet to pas's on this exact issue, it appears that if the EIS survives this strict scrutiny, the reviewing court cannot extend its strict scrutiny to the agency’s substantive decision to proceed with the project despite the impacts considered in the proeedurally adequate EIS. Under both the Administrative Procedure Act, as explicated in Overton Park, and section 101 of NEPA, as explicated in Calvert Cliffs’, an agency’s decision to proceed with a project may be set aside upon review of its merits only when the decision is arbitrary or capricious or an abuse of discretion, as when the decision displays such callous disregard of the environmental considerations expressed in the EIS as to support an inference of bad faith on the part of the agency in deciding nonetheless to proceed with the project. See, e. g., Sierra Club v. Froehlke, 486 F.2d 946, 951-953 (7th Cir. 1973); Silva v. Lynn, 482 F.2d 1282, 1283 (1st Cir. 1973); Conservation Council of North Carolina v. Froehlke, 473 F.2d 664, 665 (4th Cir. 1973); Jicarilla Apache Tribe of Indians v. Morton, 471 F.2d 1275, 1281 (9th Cir. 1973); Environmental Defense Fund v. Corps of Engineers, 470 F.2d 289, 298-300 (8th Cir. 1972), injunction denied, 409 U.S. 1072, 93 S.Ct. 1072, 34 L.Ed.2d 661; Sierra Club v. Froehlke, 359 F.Supp. 1289, 1332-1334 (S.D.Tex. 1973); City of New York v. United States, supra, 344 F.Supp. at 939-940. Cf. Scenic Hudson Preserv. Conf. v. Federal Power Commission, 453 F.2d 463, 468, 481 (2d Cir. 1971), cert. denied, 407 U.S. 926, 92 S.Ct. 2453, 32 L.Ed.2d 813 (1971). IV. DEFENDANTS’ COMPLIANCE WITH NEPA Plaintiff has attacked defendants’ compliance with NEPA on many" }, { "docid": "16513586", "title": "", "text": "Inc. v. Coleman, 515 F.2d 860 (5th Cir.1975); Conservation Society of Southern Vermont, Inc. v. Secretary of Transportation, 508 F.2d 927 (2d Cir.1974), vacated and remanded, 423 U.S. 809, 96 S.Ct. 19, 46 L.Ed.2d 29 (1975), on remand, 531 F.2d 637 (2d Cir.1976); Sierra Club v. Stamm, 507 F.2d 788, 793 (10th Cir.1974); Citizens for Balanced Environment & Transportation, Inc. v. Volpe, 503 F.2d 601 (2d Cir.1974), cert. denied, 423 U.S. 870, 96 S.Ct. 135, 46 L.Ed.2d 100 (1975); Sierra Club v. Callaway, 499 F.2d 982, 990 (5th Cir.1974); Indian Lookout Alliance v. Volpe, 484 F.2d 11, 19 (8th Cir.1973); Jones v. Lynn, 477 F.2d 885 (1st Cir.1973); Named Individual Members of San Antonio Conservation Society v. Texas High way Department, 446 F.2d 1013 (5th Cir.1971), cert. denied, 406 U.S. 933, 92 S.Ct. 1775, 32 L.Ed.2d 136 (1972); Appalachian Mountain Club v. Brinegar, 394 F.Supp. 105, 115 (D.N.H.1975); Atchison, Topeka & Santa Fe Railway Co. v. Callaway, 382 F.Supp. 610 (D.D.C.1974); Movement Against Destruction v. Volpe, 361 F.Supp. 1360, 1384 (D.Md.1973), aff'd per curiam, 500 F.2d 29 (4th Cir.1974); James River v. Richmond Metropolitan Authority, 359 F.Supp. 611, 635 (E.D.Va.1973), aff'd, 481 F.2d 1280 (4th Cir.1973); Committee to Stop Route 7 v. Volpe, 346 F.Supp. 731, 740 (D.Conn.1972). However, none of these cases present a situation where, as here, a Final EIS has already been prepared and approved. Instead, the cases cited by appellants all concern the appropriate scope of an initial EIS; the cases stand only for the proposition that a single project cannot be artificially subdivided into a number of separate projects for which separate EIS’s may be prepared. In this case, appellees have not attempted to segment the H-3 project into separate projects. Rather, appellees acknowledge that the H-3 project as a whole required approval of a Pinal EIS before construction could commence. They argue, correctly, that the 1982 EIS fulfilled this function. We hold that the district court correctly determined that FHWA's decision to prepare a Third Supplemental EIS did not deprive the 1982 EIS of its status as a Final EIS. Because the district court’s" }, { "docid": "23673170", "title": "", "text": "intended that agencies apply its standards to the decision to introduce a new technology as well as to the decision to license related activity; see 42 U.S.C. § 4331(a) (1970); S.Rep. No. 91-296, 91st Cong., 1st Sess., 20 (1969). The fact that the environmental effects of such a decision about a new technology will not emerge for years does not mean that the program does not effect the environment or that an impact statement is unnecessary; see Scientists' Institute, supra, 481 F.2d 1079, 1089-90 (discussing the technology of the uranium breeder reactor). In numerous cases involving the commercial introduction of a new technology, as well as in cases where the agency has undertaken isolated activity which the courts found to be in actuality part of a larger program, the courts have not hesitated to identify major federal action on the broader scale and to require the preparation of a regional or generic impact statement before allowing major federal action to proceed. See Sierra Club v. Morton, 169 U.S.App.D.C. 20, 514 F.2d 856 (1975), cert. granted, 423 U.S. 1047, 96 S.Ct. 772, 46 L.Ed.2d 635, 44 U.S.L.W. 3397 (1976) (requiring a regional impact statement for coal mining in the Northern Great Plains area); Conservation Society of Southern Vermont, Inc. v. Secretary of Transportation, (Conservation Society I), 508 F.2d 927 (2d Cir. 1974), vacated and remanded, 423 U.S. 809, 96 S.Ct. 19, 46 L.Ed.2d 29, 44 U.S.L.W. 3199 (1975); Scientists’ Institute, supra (declaratory judgment that the AEC must prepare a generic impact statement for the new technology of the breeder reactor); see also Indian Lookout Alliance v. Volpe, 484 F.2d 11 (8th Cir. 1973). Such broad-scale impact statements may be required for a series of major federal actions, even though individual impact statements are to be prepared for each isolated project; see Sierra Club, supra, at 871; Scientists’ Institute, supra. Otherwise, agencies could take an approach “akin to equating an appraisal of each tree to one of the forest.” Jones v. Lynn, 477 F.2d 885, 891 (1st Cir. 1973). In both Sierra Club and Scientists’ Institute, supra, the Court of Appeals for" }, { "docid": "23417573", "title": "", "text": "Institute for Public Information v. Atomic Energy Commission, 156 U.S.App.D.C. 395, 481 F.2d 1079, 1086-87 (1973); Conservation Society of South Vermont, Inc. v. Secretary of Transportation, 343 F.Supp. 761 (D.Vt. 1972), aff’d, 508 F.2d 927 (2nd Cir. 1973), judgment vacated and remanded on other grounds, 423 U.S. 809, 96 S.Ct. 19, 46 L.Ed.2d 29 (1975), rev’d on other grounds upon remand, 531 F.2d 637 (2nd Cir. 1976). The guidelines of the Council on Environmental Quality make it clear that the statutory term “major Federal actions” must be assessed “with a view to the overall, cumulative impact of the action proposed, related Federal action and projects in the area, and further actions contemplated.” 40 C.F.R. § 1500.6(a) (1975). The transfer decision is plainly a consequential, if not an inseparable, feature of the construction project. Appellants therefore have standing in this case. II. NEPA. A study labeled “Environmental Impact Assessment” (EIA) was prepared by the Postal Service consulting architects, but this study was not released to the general public and public input was not received. The EIA dealt only with the environmental effects of the construction and operation of the new HMF; no consideration whatever was given to the environmental effects associated with the contemplated abandonment in whole or in large part of the MPO and the attendant transfer of some 1,400 employees therefrom to the Henrietta facility. While the Postal Service concedes that the proposed construction is a “major Federal action,” the Service has concluded, in reliance on the EIA, that the construction does not “significantly affec[t] the quality of the human environment.” 42 U.S.C. § 4332(2)(C). We disagree. There are a multiplicity of factors, some of which were mentioned in the EIA and several of which were not, which indicate that substantial environmental degradation may result from the challenged project. The EIA, note 7 supra, falls short of the type of reasoned elaboration which must be required to support an administrative determination of non-substantiality under the EPA. See, e. g., Silva v. Lynn, 482 F.2d 1282 (1st Cir. 1973); Monroe County Conservation Council, Inc. v. Volpe, 472 F.2d 693, 697" }, { "docid": "16513585", "title": "", "text": "discuss certain “new and significant” information which had arisen following circulation of the draft 1980 EIS. Stop H-3 Ass’n v. Lewis, 538 F.Supp. at 183-84. This court affirmed that determination in 1984. Stop H-3 Ass’n v. Dole, 740 F.2d at 1465. Appellees accordingly prepared a Second SEIS discussing the new information; FHWA approved the Second SEIS in September 1982. Appellants have never challenged the adequacy of the SEIS ordered by the district court in 1982. The district court, therefore, could correctly find that the 1982 EIS constituted a “final” and “adequate” EIS for the H-3 project, notwithstanding appellees’ decision to prepare a Third SEIS. Moreover, there is no authority for the proposition that the decision to prepare a Supplemental EIS after a Final EIS has been approved requires that work outside the area affected by the Supplemental EIS be halted. Appellants cite in their brief a number of cases which, they argue, constitute such authority. See Conservation Society of Southern Vermont, Inc. v. Secretary of Transportation, 531 F.2d 637 (2d Cir.1976); Ecology Center of Louisiana, Inc. v. Coleman, 515 F.2d 860 (5th Cir.1975); Conservation Society of Southern Vermont, Inc. v. Secretary of Transportation, 508 F.2d 927 (2d Cir.1974), vacated and remanded, 423 U.S. 809, 96 S.Ct. 19, 46 L.Ed.2d 29 (1975), on remand, 531 F.2d 637 (2d Cir.1976); Sierra Club v. Stamm, 507 F.2d 788, 793 (10th Cir.1974); Citizens for Balanced Environment & Transportation, Inc. v. Volpe, 503 F.2d 601 (2d Cir.1974), cert. denied, 423 U.S. 870, 96 S.Ct. 135, 46 L.Ed.2d 100 (1975); Sierra Club v. Callaway, 499 F.2d 982, 990 (5th Cir.1974); Indian Lookout Alliance v. Volpe, 484 F.2d 11, 19 (8th Cir.1973); Jones v. Lynn, 477 F.2d 885 (1st Cir.1973); Named Individual Members of San Antonio Conservation Society v. Texas High way Department, 446 F.2d 1013 (5th Cir.1971), cert. denied, 406 U.S. 933, 92 S.Ct. 1775, 32 L.Ed.2d 136 (1972); Appalachian Mountain Club v. Brinegar, 394 F.Supp. 105, 115 (D.N.H.1975); Atchison, Topeka & Santa Fe Railway Co. v. Callaway, 382 F.Supp. 610 (D.D.C.1974); Movement Against Destruction v. Volpe, 361 F.Supp. 1360, 1384 (D.Md.1973), aff'd per curiam, 500" }, { "docid": "22427936", "title": "", "text": "below, 502 F.2d 852, 854 (6th Cir. 1974); Environmental Defense Fund v. TVA, 371 F.Supp. 1004, 1007-14 (E.D. Tenn. 1973), aff'd on opinion below, 492 F.2d 466, 468 (6th Cir. 1974); Sierra Club v. Froehlke, 534 F.2d 1289, 1291, 1295, 1303 (8th Cir. 1976); Iowa Citizens for Environmental Quality, Inc. v. Volpe, 487 F.2d 849, 850 (8th Cir. 1973); Cady v. Morton, 527 F.2d 786, 796 (9th Cir. 1975); Friends of the Earth v. Coleman, 513 F.2d 295, 300 & n.6 (9th Cir. 1975); Trout Unlimited v. Norton, 509 F.2d 1276, 1281, 1284 (9th Cir. 1974); Life of the Land v. Brinegar, 485 F.2d 460, 463, 469-73 (9th Cir. 1973), cert. denied, 416 U.S. 961, 94 S.Ct. 1979, 40 L.Ed.2d 312 (1974); Sierra Club v. Stamm, 507 F.2d 788, 789 (10th Cir. 1974); Natural Resources Defense Council, Inc. v. Morton, 148 U.S.App.D.C. 5, 458 F.2d 827, 830 (1972). . See, e.g., Massachusetts Air Pollution & Noise Abatement Committee v. Brinegar, 499 F.2d 125, 126 (1st Cir. 1974); Conservation Society of Southern Vermont, Inc. v. Volpe, 343 F.Supp. 761, 763 (D. Vt. 1972), aff'd 508 F.2d 927 (2d Cir. 1974), vacated on other grounds, 423 U.S. 809, 96 S.Ct. 19, 46 L.Ed.2d 29 (1975); Rucker v. Willis, 484 F.2d 158, 162 & n.6, 163 n.7 (4th Cir. 1973); Nucleus of Chicago Homeowners Association v. Lynn, 524 F.2d 225, 229, 231 (7th Cir. 1975), cert. denied, 424 U.S. 967, 96 S.Ct. 1462, 47 L.Ed.2d 734 (1976); Minnesota Public Interest Research Group v. Butz, 358 F.Supp. 584 passim (D. Minn. 1973), aff'd 498 F.2d 1314, 1322 (8th Cir. 1974) (en banc); Fund for Animals v. Frizzel, 174 U.S.App.D.C. 130, 530 F.2d 982, 987 & n.11 (1975). . Most comments received by the Department were reprinted verbatim in Volume III of the EIS. . The $1,750,000 per mile figure, moreover, was based on a submission to the FPC of a pipeline between offshore areas within a field, whereas the EIS $1 million per mile figure was based on a field-to-shore pipeline. . Any such estimates of future pipeline costs must of necessity engage in" }, { "docid": "23673171", "title": "", "text": "423 U.S. 1047, 96 S.Ct. 772, 46 L.Ed.2d 635, 44 U.S.L.W. 3397 (1976) (requiring a regional impact statement for coal mining in the Northern Great Plains area); Conservation Society of Southern Vermont, Inc. v. Secretary of Transportation, (Conservation Society I), 508 F.2d 927 (2d Cir. 1974), vacated and remanded, 423 U.S. 809, 96 S.Ct. 19, 46 L.Ed.2d 29, 44 U.S.L.W. 3199 (1975); Scientists’ Institute, supra (declaratory judgment that the AEC must prepare a generic impact statement for the new technology of the breeder reactor); see also Indian Lookout Alliance v. Volpe, 484 F.2d 11 (8th Cir. 1973). Such broad-scale impact statements may be required for a series of major federal actions, even though individual impact statements are to be prepared for each isolated project; see Sierra Club, supra, at 871; Scientists’ Institute, supra. Otherwise, agencies could take an approach “akin to equating an appraisal of each tree to one of the forest.” Jones v. Lynn, 477 F.2d 885, 891 (1st Cir. 1973). In both Sierra Club and Scientists’ Institute, supra, the Court of Appeals for the District of Columbia Circuit employed a four-prong test to determine whether the action under review required a broad-scale impact statement. That test is as follows: “[1] How likely is the program to come to fruition, and how soon will that occur? “[2] To what extent is meaningful information presently available on the effects of implementation of the program, and of alternatives and their effects? “[3] To what extent are irretrievable commitments being made and options precluded as refinement of the proposal progresses? “[4] How severe will be the environmental effects if the proposal is implemented?” (Sierra Club, supra, at 880.) Under these guidelines, the Commission’s decision to initiate the GESMO study was a decision clearly mandated by NEPA. The growth of plutonium-related activities in recent years makes it clear that the nuclear power industry as a whole is steadily progressing towards the launching of a new era of commercial nuclear technology. Important environmental questions are involved in the utilization of plutonium recycle. These questions are common to the industry and transcend issues relative to" }, { "docid": "10290853", "title": "", "text": "'requirements of Section 4(f). Conservation Society of Southern Vermont, Inc. v. Secretary of Transportation, 362 F.Supp. 627, 638-39 (D.Vt.1973), aff’d, 508 F.2d 927 (2d Cir. 1974), affirmance vacated & remanded sub nom., Coleman v. Conservation Society of Southern Vermont, Inc., 423 U.S. 809, 96 S.Ct. 19, 46 L.Ed.2d 29 (1975), rev’d, 531 F.2d 637 (2d Cir. 1976). Appeals followed culminating in the reversal of that portion of the July 27, 1973, decision dealing with Vermont Highway Department preparation of the NEPA-required EIS and the necessity of a regional EIS. The propriety of the Section 4(f) determination was not considered in any of the subsequent proceedings. Nor was the propriety of the court’s rulings that approval of the NEPA EIS was limited to two-lane construction only and that the EIS was “insufficient to support four-lane construction, within the reasonably foreseeable future since no present need therefor is demonstrated.” 362 F.Supp. at 635. In an order of June 7, 1977, this court held that its injunction of October 26, 1972, had not been dissolved in full by the court of appeals’ reversal, 531 F.2d 637, but remained binding on defendants with regard to Section 4(f) compliance, Conservation Society of Southern Vermont, Inc. v. Secretary of Transportation, No. 6598, at 2-3 (D.Vt. June 7, 1977), as well as with respect to the two-lane limitation. Section 4(f) was originally implicated because Project 9 is to border what in 1973 was known as the Lye Brook Backwoods area. That area consists of approximately 11,000 acres, constituting a substantial portion of the Green Mountain National Forest. At the time of this court’s July 27, 1973, opinion legislation had been introduced in Congress to declare Lye Brook a wilderness area, and it had been placed by the United States Forest Service in a “no development” status. Since then, by act of Congress, it has become the Lye Brook Wilderness area. Pub.L. No. 93-622, § 3(a)(ll), 88 Stat. 2097 (1975). Both in the opinion of this court, Conservation Society of Southern Vermont, Inc. v. Secretary of Transportation, supra, 362 F.Supp. at 639, and by designation of the Forest" }, { "docid": "10290852", "title": "", "text": "Department of Transportation, proposed a four-lane highway project involving U.S. Route 7. A new highway extending from Bennington, Vermont, to Manchester, Vermont, was contemplated. It has been referred to throughout the litigation in terms of its three component projects, F 019-1(8) (Project 8), F 019-1(9) (Project 9), and F 019-1(10) (Project 10). Project 9 is the subject of the current proceedings. On October 26, 1972, this court enjoined the defendants from proceeding with the project until a final environmental impact statement (EIS) required by the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4332(2)(C), was filed, and the requirements of Section 4(f) of the Department of Transportation Act of 1966, 49 U.S.C. § 1653(f), and of Section 138 of the Federal-Aid Highway Act of 1968, 23 U.S.C. § 138, were met. See Conservation Society of Southern Vermont, Inc. v. Voipe, supra, 343 F.Supp. at 766, 768. After the EIS was filed, on July 27,1973, this court refused to dissolve the injunction on a number of grounds, including defendants’ failure to comply with the 'requirements of Section 4(f). Conservation Society of Southern Vermont, Inc. v. Secretary of Transportation, 362 F.Supp. 627, 638-39 (D.Vt.1973), aff’d, 508 F.2d 927 (2d Cir. 1974), affirmance vacated & remanded sub nom., Coleman v. Conservation Society of Southern Vermont, Inc., 423 U.S. 809, 96 S.Ct. 19, 46 L.Ed.2d 29 (1975), rev’d, 531 F.2d 637 (2d Cir. 1976). Appeals followed culminating in the reversal of that portion of the July 27, 1973, decision dealing with Vermont Highway Department preparation of the NEPA-required EIS and the necessity of a regional EIS. The propriety of the Section 4(f) determination was not considered in any of the subsequent proceedings. Nor was the propriety of the court’s rulings that approval of the NEPA EIS was limited to two-lane construction only and that the EIS was “insufficient to support four-lane construction, within the reasonably foreseeable future since no present need therefor is demonstrated.” 362 F.Supp. at 635. In an order of June 7, 1977, this court held that its injunction of October 26, 1972, had not been dissolved in full by" }, { "docid": "921822", "title": "", "text": "was a separate viable entity and not a mere component, increment, or first segment of larger project and has been treated as such by Congress]; Environmental Defense Fund, Inc. v. Armstrong, 352 F.Supp. 50 (N.D.Cal.1972) , supplemental opinion, 356 F.Supp. 131 (N.D.Cal.1973), aff'd, 487 F.2d 814 (9th Cir. 1973) [so long as each major federal action— here, construction of New Melones Dam — was undertaken individually and not as indivisible part of integrated statewide system, EIS with respect to dam was sufficient and construction could continue in the absence of comprehensive study of area water project]; Indian Lookout Alliance v. Volpe, 484 F.2d 11 (8th Cir. 1973) [as a practical matter it is necessary to permit the division of a state highway plan into segments for EIS purposes; court, however, will not consider as an appropriate segment for EIS one which has no independent utility.] . That the BIA considered a “segmented” method of EIS preparation sufficient need not weigh heavily in our assessment of the demands of this situation, since “[a]n agency decision concerning NEPA requirements is not one committed to the agency’s discretion by law within the meaning of the APA . . . ”. Minnesota PIRG v. Butz, 498 F.2d 1314, 1320 (8th Cir. 1974). . See, e. g., Conservation Society of Southern Vermont, Inc. v. Sec’y. of Transportation, 508 F.2d 927 (2d Cir. 1974); Scientists’ Institute for Public Information v. Atomic Energy Comm’n., 156 U.S.App.D.C. 395, 481 F.2d 1079 (1973). In Conservation Society the Second Circuit upheld a lower court order requiring that within six months from the issuance by the Federal Highway Administration of a project EIS — dealing with the construction of twenty miles of highway — the agency was required to prepare a statement covering the development of the entire 280-mile corridor which might embrace the smaller stretch. The court agreed that the broader EIS should be prepared even though the ultimate construction of a superhighway of which the segment would be a part could be characterized only as a “long-range goal” or “expectation” and even though no actual plans for its construction" }, { "docid": "17249294", "title": "", "text": "would lack standing to raise the claim that is here made. The original petition to intervene argues that additional transmission corridors and lines in the county will be inconsistent with the historic, social and economic and cultural qualities of Greene County, and will cause environmental damage therein. It also objects that a piecemeal approach is employed by PASNY and the Commission which will deprive concerned parties of the opportunity for an overall evaluation. Cf. Conservation Society of Southern Vermont, Inc. v. Secretary of Transportation, 508 F.2d 927, 934-35 (2d Cir. 1974), vacated and remanded, 423 U.S. 809, 96 S.Ct. 19, 46 L.Ed.2d 29 (1975) (in light of Pub.L. No. 94-83 and Aberdeen & Rockfish Railroad v. SCRAP, 422 U.S. 289, 95 S.Ct. 2336, 45 L.Ed.2d 191 (1975)); Scientists’ Institute for Public Information, Inc. v. AEC, 156 U.S.App.D.C. 395, 481 F.2d 1079, 1085-92 (1973). While it may be true that any number of other persons who live in assorted other areas of New York State could claim standing similar to those of Greene County, the Supreme Court has made it clear that standing is not to be denied because many people suffer the same injury. United States v. SCRAP, 412 U.S. 669, 686-87, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973). “To deny standing to persons who are in fact injured simply because many others are also injured, would mean that the most injurious and widespread Government actions could be questioned by nobody.” Id. at 688, 93 S.Ct. at 2416. See also id. at 689 n. 14, 93 S.Ct. 2405. The Greene County Planning Board is surely as greatly aggrieved as the Scenic Hudson Preservation Conference was in the original Storm King case, even though the threat here is one somewhat further in the future. See Scenic Hudson Preservation Conference v. FPC, 354 F.2d 608, 616 (2d Cir. 1965) (injury to aesthetic, conservational and recreational interests alleged), cert. denied, Consolidated Edison Co. of New York v. Scenic Hudson Preservation Conference, 384 U.S. 941, 86 S.Ct. 1462, 16 L.Ed.2d 540 (1966); Wilderness Society v. Morton, 150 U.S.App.D.C. 170, 463 F.2d 1261 (1972). We" }, { "docid": "23097114", "title": "", "text": "v. Froehlke, 359 F.Supp. 1289, 1341 (S.D.Tex.1973), rev’d on other grounds, 499 F.2d 982 (5th Cir. 1974). . Natural Resources Defense Council, Inc. v. Morton, 337 F.Supp. 170, 172 (D.D.C.1972). . This practice was rejected in San Antonio Conservation Soc’y v. Texas Highway Dep’t, 446 F.2d 1013, 1023-24 (5th Cir. 1971), cert. denied, 406 U.S. 933, 92 S.Ct. 1775, 32 L.Ed.2d 136 (1972). . Section 102(2)(C). . Section 102(2)(F). . Natural Resources Defense Council, Inc. v. Grant, 355 F.Supp. 280 (E.D.N.C.1973). . 40 C.F.R. 1500 6(a). . 36 Fed.Reg. 19343. . 37 Fed.Reg. 15018. . E. g., Scientists’ Institute for Public Information, Inc. v. AEC, 156 U.S.App.D.C. 395, 481 F.2d 1079, 1086-87 (1973); Jones v. Lynn, 477 F.2d 885, 891 (1st Cir. 1973). . Calvert Cliffs’ Coordinating Comm., Inc. v. AEC, supra, 449 F.2d 1109, at 1114; Trout Unlimited v. Morton, supra, 509 F.2d at 1282, (9th Cir., 1974). . EDF v. Corps of Engineers (Tombigbee), supra, 492 F.2d 1123, at 1135. . Alternatives considered were: (1) modify the sale; (2) withdraw the sale with needed energy to be replaced by (a) conservation, (b) conventional oil and gas supplies, (c) coal, (d) synthetic sources of gas and oil, (e) hydroelectric power, (f) nuclear power, (g) energy imports, (h) other energy sources, (i) combination of alternatives; or (3) delay the sale until new technology is developed and/or until pending environmental studies are completed. . One of their attorneys did talk with Interi- or officials prior to trial concerning whether the feasibility of federal exploration had been considered. . Calvert Cliffs’ Coordinating Comm., Inc. v. AEC, supra, 449 F.2d 1109, at 1128. . NRDC v. Morton, supra, 458 F.2d 827, at 836. . Plaintiffs offered no evidence concerning the relative possibilities. . The frontier area of the Eastern Gulf also was chosen for exploration with the hope of insuring that Outer Continental Shelf production is maintained at least at its present rate. Interior contends that lead time is essential to the Department for a full evaluation of frontier area and for lessees to explore and begin production in such areas if these" }, { "docid": "7720376", "title": "", "text": "Fund, Inc. v. Froehlke, 368 F.Supp. 231 (W.D. Mo.1973), aff’d sub nom. Environmental Defense Fund, Inc. v. Callaway, 497 F.2d 1340 (8th Cir. 1974). . The procedure followed and steps taken by the defendants in this matter are clearly indicative of good faith. The original EIS for Meramec Park Lake was filed with the Council on Environmental Quality (CEQ) on February 23, 1971. That statement was the product of comprehensive coordination between federal, state, and local agencies. In addition, numerous public hearings and meetings were held before this statement was filed, at which the environmental effects of Meramec Park Lake were discussed. (The dates and subjects of those meetings are found in the revised EIS at EIGHT-1-9.) The original EIS was then circulated among interested local, state, and federal agencies for comments. The Public Opinion Survey Unit, Business and Public Administrative Research Center, University of Missouri, Columbia also conducted a survey of public attitudes on the Meramec Park Lake and Union Lake in July and August, 1972 in Franklin, Washington, and Crawford Counties, the counties which would contain those lakes. The results of the agencies’ comments and public attitudes were utilized in a draft revised and supplemented EIS filed with the CEQ in June 1973. That statement was sent to appropriate government agencies and private organizations in April 1973 for review purposes. We note that the Ozark Chapter of Sierra Club was invited to comment on this revised and supplemented EIS but failed to respond. The final EIS filed with the CEQ on September 27, 1973 contains detailed responses to the comments received. Where appropriate, the final EIS was changed to accommodate those comments. (Footnote ours.) . Sierra Club v. Morton, 510 F.2d 813, 818 (5th Cir. 1975). Sierra Club v. Callaway, 499 F.2d 982, 992 (5th Cir. 1974); Environmental Defense Fund, Inc. v. Corps of Engineers of the United States Army, 492 F.2d 1123, 1131 (5th Cir. 1974). [Plaintiff] also attacks generally the sufficiency and completeness of the statement. However, although the statement, like most of its fellows, can be improved by hindsight and sophisticated editing, we believe that" }, { "docid": "7720375", "title": "", "text": "point was that the Congress, in providing for the Meramec Park Lake construction, “was endeavoring to satisfy the needs of the Basin for Flood control, recreation, water supply, low flow augmentation in the Meramec River, the lower Meramec River in the interest of water quality, fish and wildlife enhancement, some navigation and area redevelopment.” Testimony of Mr. Leo T. Briece, Head of the Meramec Basin Section and Project Coordinator, United States Army Engineer District, St. Louis, Missouri. . See e. g., Jones v. Lynn, 477 F.2d 885, 890 (1st Cir. 1973); Conservation Society of Southern Vermont, Inc. v. Secretary of Transportation, 508 F.2d 927, 934 (2d Cir. 1974), cert. granted, judgment vacated & remanded sub nom. Coleman v. Conservation Society of Southern Vermont, Inc., 423 U.S. 809, 96 S.Ct. 19, 46 L.Ed.2d 29, 44 U.S.L.W. 3199 (1975); Scientists’ Institute for Public Information, Inc. v. AEC, 156 U.S.App.D.C. 395, 481 F.2d 1079 (1973); Trout Unlimited v. Morton, 509 F.2d 1276, 1285 (9th Cir. 1974). . 382 F.Supp. at 622. . Cf. Judge Oliver in Environmental Defense Fund, Inc. v. Froehlke, 368 F.Supp. 231 (W.D. Mo.1973), aff’d sub nom. Environmental Defense Fund, Inc. v. Callaway, 497 F.2d 1340 (8th Cir. 1974). . The procedure followed and steps taken by the defendants in this matter are clearly indicative of good faith. The original EIS for Meramec Park Lake was filed with the Council on Environmental Quality (CEQ) on February 23, 1971. That statement was the product of comprehensive coordination between federal, state, and local agencies. In addition, numerous public hearings and meetings were held before this statement was filed, at which the environmental effects of Meramec Park Lake were discussed. (The dates and subjects of those meetings are found in the revised EIS at EIGHT-1-9.) The original EIS was then circulated among interested local, state, and federal agencies for comments. The Public Opinion Survey Unit, Business and Public Administrative Research Center, University of Missouri, Columbia also conducted a survey of public attitudes on the Meramec Park Lake and Union Lake in July and August, 1972 in Franklin, Washington, and Crawford Counties, the counties" }, { "docid": "22427935", "title": "", "text": "the failure of an EIS to note problems or data elsewhere in the record may be probative of the extent to which the EIS has been compiled in objective good faith. What constitutes part of the administrative record may be very unclear in a NEPA case, where there is no formal factfinding process. At the very least, however, the record should include all relevant studies or data used or published by the agency compiling the statement. . See, e.g., Natural Resources Defense Council, Inc. v. Callaway, 389 F.Supp. 1263 passim (D. Conn. 1974), rev’d, 524 F.2d 79, 82, 94 n.14 (2d Cir. 1975); Cape Henry Bird Club v. Laird, 359 F.Supp. 404, 415-16 (W.D. Va. 1973), aff'd on opinion below, 484 F.2d 453 (4th Cir. 1973); Sierra Club v. Lynn, 502 F.2d 43, 51 (5th Cir. 1974), cert. denied, 421 U.S. 994, 95 S.Ct. 2001, 44 L.Ed.2d 484, 422 U.S. 1049, 95 S.Ct. 2668, 45 L.Ed.2d 701 (1975); Natural Resources Defense Fund, Inc. v. TVA, 367 F.Supp. 128, 133 (E.D. Tenn. 1973), affd on opinion below, 502 F.2d 852, 854 (6th Cir. 1974); Environmental Defense Fund v. TVA, 371 F.Supp. 1004, 1007-14 (E.D. Tenn. 1973), aff'd on opinion below, 492 F.2d 466, 468 (6th Cir. 1974); Sierra Club v. Froehlke, 534 F.2d 1289, 1291, 1295, 1303 (8th Cir. 1976); Iowa Citizens for Environmental Quality, Inc. v. Volpe, 487 F.2d 849, 850 (8th Cir. 1973); Cady v. Morton, 527 F.2d 786, 796 (9th Cir. 1975); Friends of the Earth v. Coleman, 513 F.2d 295, 300 & n.6 (9th Cir. 1975); Trout Unlimited v. Norton, 509 F.2d 1276, 1281, 1284 (9th Cir. 1974); Life of the Land v. Brinegar, 485 F.2d 460, 463, 469-73 (9th Cir. 1973), cert. denied, 416 U.S. 961, 94 S.Ct. 1979, 40 L.Ed.2d 312 (1974); Sierra Club v. Stamm, 507 F.2d 788, 789 (10th Cir. 1974); Natural Resources Defense Council, Inc. v. Morton, 148 U.S.App.D.C. 5, 458 F.2d 827, 830 (1972). . See, e.g., Massachusetts Air Pollution & Noise Abatement Committee v. Brinegar, 499 F.2d 125, 126 (1st Cir. 1974); Conservation Society of Southern Vermont, Inc. v. Volpe," } ]

[ { "docid": "3298843", "title": "", "text": "required in order to present to the jury certain legal theories that were potentially dispositive of the verdict. The NFL argues that the court’s failure to give the instructions was prejudicial error requiring a new trial. Determining whether the failure to give proffered jury instructions is error depends on whether the instructions actually given to the jury, taken as a whole, adequately explained the law or whether they tended to confuse or mislead the jury on the controlling issues of the case. Davet v. Maccarone, 973 F.2d 22, 26 (1st Cir.1992); Transnational Corp. v. Rodio & Ursillo, Ltd., 920 F.2d 1066, 1070 (1st Cir.1990); see also L.A. Coliseum, 726 F.2d at 1398 (“The question, then, is whether, viewing the jury instructions as a whole, the trial judge gave adequate instructions on each element of the case to insure that the jury fully understood the issues.”). We must also consider whether the NFL’s proposed instructions are accurate or misleading. Shane v. Shane, 891 F.2d 976, 987 (1st Cir.1989). “As long as the judge’s instruction properly apprises the jury of the applicable law, failure to give the exact instruction requested does not prejudice the objecting party.” Brown v. Trustees of Boston Univ., 891 F.2d 337, 354 (1st Cir.1989), cert. denied, 496 U.S. 937, 110 S.Ct. 3217, 110 L.Ed.2d 664 (1990) (internal quotations omitted). A party, however, is entitled to have its legal theories on controlling issues, which are supported by the law and by the evidence, presented to the jury. Jerlyn Yacht Sales, Inc. v. Roman Yacht Brokerage, 950 F.2d 60, 68 (1st Cir.1991); L.A. Coliseum, 726 F.2d at 1398. An error in the jury instructions will warrant the reversal of the judgment and a new trial only if, upon review of the record as a whole, the error is determined to be prejudicial. Davet, 973 F.2d at 26; Jerlyn Yacht Sales, 950 at 69; Transnational Corp., 920 F.2d at 1070. In this case, we find that the failure to give certain instructions was prejudicial error and we therefore vacate the judgment and order a new trial. A. Equal Involvement Defense The" } ]

[ { "docid": "12520647", "title": "", "text": "of burden of proof is reversible error if harmful to losing party); Loeb v. Textron, Inc., 600 F.2d 1003, 1012 (1st Cir.1979) (similar); Barr Rubber Prods. Co. v. Sun Rubber Co., 425 F.2d 1114, 1120-21 (2d Cir.) (similar), cert. denied, 400 U.S. 878, 91 S.Ct. 118, 27 L.Ed.2d 115 (1970); see generally Allen v. Chance Mfg. Co., 873 F.2d 465, 469 (1st Cir.1989) (an erroneous jury instruction necessitates a new trial “if the error could have affected the result of the jury’s deliberations”); cf. Mix v. Neff, 99 A.D.2d 180, 473 N.Y.S.2d 31, 34 (1984) (new trial not necessary on deceit claim where jury was erroneously instructed to decide issue on “fair preponderance” rather than “clear and convincing” quantum of proof because error favored appellant and was, therefore, harmless). So here. Whether or not intent to deceive was a necessary element of Pateman’s nondisclosure claim against Frenkel, New York law,, properly construed, required Pateman to prove all the elements of the tort by clear and convincing evidence. In sum, the district court erred in charging the jury on the quantum of proof applicable to Pateman’s tort claim against Frenkel. A preserved instructional error requires a new trial if, on the record as a whole, a reviewing court cannot say with fair assurance that the judgment was likely unaffected. See Gardner, 643 F.2d at 1137; see also Jerlyn Yacht Sales, Inc. v. Roman Yacht Brokerage, 950 F.2d 60, 69 (1st Cir.1991) (applying standard). Here, the error had more than a merely theoretical impact. The case was hotly contested and, until the jury spoke, the outcome was problematic. Thus, the failure of the district court to instruct the jury on the proper quantum of proof may well have swayed the outcome. The error, then, was not harmless. Frenkel, having requested a more befitting instruction and taken a timeous objection to the charge as framed, has standing to complain. Accordingly, the judgment against Frenkel cannot stand. V. CONCLUSION In this bitterly disputed case, the parties’ relentless pursuit of gold (or its cash equivalent) has taken the district court, and this court, through a" }, { "docid": "18651947", "title": "", "text": "where the error is determined to be prejudicial based on a whole-record review. Davet, 973 F.2d at 26; Shane v. Shane, 891 F.2d 976, 987 (1st Cir.1989). An error is prejudicial if it could have affected the result of the jury’s deliberations. Allen v. Chance Mfg. Co. 873 F.2d 465, 469 (1st Cir.1989). At trial Honda adduced ample evidence that the ATV ridden by plaintiff was in poor condition on the day of the accident. Most significant is the undisputed fact that the ATVs front brakes did not work. In addition, the evidence was sufficient for the jury to have found that, at the time of the accident, the ATV had bent front forks, severely maladjusted rear brakes, unequally inflated rear tires, and pulled to the right. [1] [Tlhe Honda defendants shall not be held liable for product liability damages where a substantial cause of the accident was a subsequent alteration or modification of the all terrain vehicle. [2] [Fjailure to properly maintain the braking system, steering system and other safety related items can constitute alteration or modification of the all terrain vehicle. [3] [I]f you find that certain safety related items on the all terrain vehicle were improperly maintained and this improper maintenance created a danger that was a substantial cause of Mr. LaPlante's injuries ... then you must find the Honda defendants are not liable for plaintiff’s injuries. Appellants’ Second Supplemental Jury Instructions at 1-2. Plaintiff argues that the above request was defective because Honda did not label it as an affirmative defense. Assuming plaintiff is correct, the judge still had a duty to submit the statutory defense to the jury. See Jerlyn Yacht Sales v. Roman Yacht Brokerage, 950 F.2d 60, 69 n. 16 (1st Cir.1991). A rational jury, presented with Honda’s subsequent alteration defense, could have found that any or all of the alleged alterations or modifications “substantially caused” plaintiffs injuries. Consequently, the court’s instructional error could have changed the outcome of the trial. Honda was not only entitled to have the jury instructed on this defense, but it is evident that the court’s failure to" }, { "docid": "10041799", "title": "", "text": "calculated. The court understood necessary that the jury confine themselves to the contours of such detailed instruction. Moreover, the requirement being that the computation of damages be based on the evidence presented at trial, the jury instruction is more than sufficient to establish such obligation. In addition, as stated in the previous section of this opinion, the award of damages was supported by the evidence; thus the instruction needed no supplemental explanation. Finally, it is noteworthy that had the jury not followed the instruction, it might have awarded $4,410,000, the amount actually prayed for in the amended complaint. (See Docket No. 44.) 2. Remaining Jtw'y Instructions Kmart contends that the court erred in failing to give the following instruction: “There is no duty to protect the visitor from risks that are known or that are so apparent that it can be reasonably expected that he can discover then [sic] and protect himself.” (Docket No. 116, at 38.); see Goose v. Hilton Hotels Int’l, Inc., 79 D.P.R. 523 (1956). Defendant similarly claims that the court erred in not giving its proposed jury instructions on pre-existing conditions and mitigation of damages. The first of these instructions requested that the jury be instructed that if Mr. Torres’ pain was caused by “any other physical” condition, that they had to find for the defendant. Kmart further requested that the jury be instructed to consider such pre-existing condition in the computation of damages. The other request made by defendant was that the jury be instructed on whether the defendant failed to mitigate his damages. It has been noted that to determine if a failure to give a proffered instruction is error depends on whether the instructions given adequately explained the law or whether they tended to confuse or mislead the jury on the controlling issues of the case. Sullivan v. National Football League, 34 F.3d 1091, 1106-07 (1st Cir.1994), cert. denied, 513 U.S. 1190, 115 S.Ct. 1252, 131 L.Ed.2d 133 (1995). The question is whether the instructions taken as a whole gave adequate guidance on the elements of the case to insure that the jury" }, { "docid": "7386409", "title": "", "text": "which M & M Chicago contends was fabricated by Sekulovski — militated a new trial, especially in light of the other excluded evidence. We will consider this challenge in our separate discussion of his post-trial motions. B. Jury Instructions In his second salvo, Sekulovski contends that he is entitled to a new trial because the district court improperly instructed the jury on two points of law. We review challenged instructions to determine whether “the instructions as a whole were sufficient to inform the jury of the applicable law,” and reverse “only if an instruction so misled the jury that the deficiency prejudiced the defendants.” Fox v. Hayes, 600 F.3d 819, 843 (7th Cir.2010). First, Sekulovski asserts that the court gave erroneous instructions regarding the jury’s calculations of fraud damages. He argues that the district court should have instructed the jury to discount from any damage award the amount M & M Chicago would have been required to pay Luttner had the fraud not occurred. He also argues that the court should not have precluded him from introducing evidence of those hypothetical amounts. He reasons that, because they would not have been legally retained by M & M Chicago, those amounts should not have been considered as a part of M & M Chicago’s loss. Under Illinois law, “damage awards for fraud are based upon the plaintiffs loss (rather than the defendant’s gain).” LM Ins. Corp. v. Spaulding Enters. Inc., 533 F.3d 542, 554 (7th Cir.2008). The Illinois Supreme Court has explained that the “plaintiffs loss” shorthand for damages computation is “based on the rationale that the defrauded party is entitled to be placed in the same financial position he would have occupied had the misrepresentations in fact been true.” Price v. Philip Morris, Inc., 219 Ill.2d 182, 302 Ill.Dec. 1, 848 N.E.2d 1, 56 (2005). Yet the Illinois cases giving rise to the “plaintiffs loss” aphorism generally involved consumer fraud, not the kind of misrepresentation involved in the present case. See Giammanco v. Giammanco, 253 Ill.App.3d 750, 192 Ill.Dec. 835, 625 N.E.2d 990, 998 (1993) (“The ... rule best fits" }, { "docid": "23587556", "title": "", "text": "given without objection, or should we order a new trial on damages where the correct standard would be applied? We have found no decision by this Court directly answering that question, but our decisions in cases where district courts have given unclear or confusing jury instructions provide some guidance. Consider, for example, Overseas Private Investment Corp. v. Metropolitan Dade County, 47 F.3d 1111 (11th Cir.1995), where a jury found two defendants liable under breach of contract, negligence, and strict liability theories for supplying toxic fertilizer to a farming operation. Id. at 1115-16. Although the same damages should have been awarded under each theory, the jury returned a different damages verdict on the strict liability theory. Id. at 1115. After reviewing the verdicts, special interrogatories, and jury instructions, we concluded that “the jury instructions ... were confusing and unclear, resulting in confusing damage awards.” Id. at 1116. As is the case here, though, “the liability issues were properly and clearly decided by the jury.” Id. Where liability was properly decided by the factfinder but an erroneous damages verdict was returned, we held that “the remedy ... [was] to remand the case to the district court for a new trial on the amount of damages only.” Id. Similarly, in King v. Exxon Co., 618 F.2d 1111 (5th Cir.1980), we concluded that the district court gave the jury an incorrect instruction for determining the period for which the plaintiff was entitled to damages under an employment contract. Id. at 1118-19. Because the correct instruction would have required the jury to determine an inherently fact-based question that it had not decided, we refused to order a remittitur. Id. at 1119. Instead, we remanded for a new trial on the damages question, directing the district court to properly instruct the jury about how to calculate the damages period. Id. In both OPIC and King, we concluded that a remittitur was not an appropriate way to remedy the erroneous damages verdict because the jury’s calculations had come after erroneous instructions. As in those cases, the jury’s verdict in this one is excessive when measured against the" }, { "docid": "22137614", "title": "", "text": "to confirm the district court’s ruling that a false arrest had occurred. Given these facts, even if we considered the court’s refusal to give a punitive damages instruction to be error, the error would be harmless, since it did “not affect the substantial rights of the parties.” Fed.R.Civ.P. 61; see Kotler v. American Tobacco Co., 926 F.2d 1217, 1229 (1st Cir.1990) (“[I]f the instructions that the jury should have received on breach of warranty were materially equivalent to, or subsumed by, the instructions actually received on negligence, then the failure to submit the warranty count to the jury was rendered harless by the verdict on the negligence count.”); Allen v. Chance Mfg. Co., 873 F.2d 465, 469 (1st Cir.1989) (erroneous jury instruction will “necessitate[] a new trial only if the error could have affected the result of the jury deliberations”). B. Motion for Judgment as a Matter of Law and/or New Trial After trial, and again on appeal, plaintiff argues that he is entitled, in the alternative, to have the' court either set aside the jury’s damages verdict, to order a new trial, or to sua sponte award damages. He bases his entitlement on the evidence adduced at trial of. the mental suffering and humiliation he experienced as a result of his arrest and. overnight incarceration. Here, plaintiff challenges the weight and the sufficiency of the evidence adduced at trial with respect to damages. As such, our review of the district court’s denial of the post-trial motions is “severely circumscribed.” Conway v. Electro Switch Corp., 825 F.2d 593, 598 (1st Cir.1987). In order to grant a judgment as a matter of law, the evidence must be such that a reasonable person could be led to only one conclusion, that the moving party is entitled to judgment. Luson International Distributors, Inc. v. Fabricating and Production Machinery, Inc., 966 F.2d 9 (1st Cir.1992); Putnam Resources v. Pateman, 958 F.2d 448, 459 (1st Cir.1992); Hendricks & Assoc., Inc. v. Daewoo Corp., 923 F.2d 209, 214 (1st Cir.1991) (and cases cited therein); Fed.R.Civ.P. 50(b). Like the trial court, we may not assess the credibility" }, { "docid": "10514456", "title": "", "text": "cure itself. Jerlyn Yacht Sales, Inc. v. Wayne R. Roman Yacht Brokerage, 950 F.2d 60, 69 (1st Cir.1991). But the breadth of the partnership instruction dampened this tendency; and, as will become clear, vicarious liability on other theories is at best a close call. We are also doubtful whether there was an adequate evidentiary basis for instructing on civil conspiracy, although this is a closer question. To oversimplify slightly, the civil conspiracy charge required proof that two or more of the individuals on the defense side had agreed to the use of lies or culpable omissions about MMI’s post-sale prospects. Aetna Cas. Sur. Co. v. P & B Autobody, 43 F.3d 1546, 1564 (1st Cir.1994); Ferguson v. Omnimedia, Inc., 469 F.2d 194, 197 (1st Cir.1972). The companies, of course, could also be conspirators, but only if individuals acting for the companies made such agreements. No direct proof of such an agreement was offered, but in conspiracy cases proof by inference is common, and such proof may suggest either that there was a formal (but concealed) agreement or that there was a working understanding that amounted to an implicit agreement. See United States v. Moran, 984 F.2d 1299, 1303 (1st Cir.1993). In certain situations, circumstantial proof to this end may be compelling: if a gang of drug dealers were caught in the middle of a sale, it would be a very small step to infer a prior agreement. Here, however, the central activity — the sale of MMI — was entirely lawful and of necessity involved some consultation among the owners. The limited misrepresentations alleged to have occurred were sporadic, oral comments of a few individuals (Hill, Gunner, Axelrod, and Levy). Each one had independent reasons to make the sale succeed and, assuming the plaintiffs’ version of events, each made varying statements that a jury could find to be culpable. To infer an agreement to lie or conceal is another matter entirely. We need not resolve the issue since a retrial is needed on account of the partnership instruction. The conspiracy issue has not been thoroughly briefed, the evidence on retrial" }, { "docid": "14692492", "title": "", "text": "Pinkham next asserts error in the trial court’s failure to specifically instruct the jury on its obligation to award damages for permanent impairment. The district court judge instructed the jury as follows: [U]nder the ELA the Plaintiff, if he has sustained his burden of proof, may recover for: 9)c * * % $ 3. Pain, suffering and mental anguish and impairment, if any, as you may reasonably find he is likely to endure in the future as a result of the injury. (Tr. Vol. II at 296). Pinkham claims that failure to include the word “permanent” in these instructions resulted in the undervaluing of the finding of damages in this case. In reviewing jury instructions on appeal, the question is not whether the instructions were faultless in every respect but whether the jury, concerning the instruction as a whole, was misled. Aubin v. Fudala, 782 F.2d 280, 284 (1st Cir.1983). Here, the trial court clearly advised the jury that it could award damages for such impairment as it might reasonably find Pinkham likely to endure in the future on an indefinite and unspecified basis. There is no indication that the jury was confused or misled by these clear instructions, and, indeed, it must be presumed that the jurors understood the instructions, followed them correctly, and based their verdict on the instructions. Pittman v. Littlefield, 438 F.2d 659, 662 (1st Cir.1971). Moreover, Pinkham’s trial counsel failed to object to the instructions as given. Therefore, reversal in this case would be warranted only if the instructions as given amount to plain error. Almonte v. Nat. Union Fire Ins. Co., 787 F.2d 763, 767 (1st Cir.1986). There is no indication in the record as a whole that the instruction as given was prejudicial in the sense of affecting substantial rights of the appellant. Connors v. McNulty, 697 F.2d 18, 20-21 (1st Cir.1983); Fireman’s Fund Am. Ins. v. Almacenes Miramar, 649 F.2d 21, 29 (1st Cir.1981). We therefore find Pinkham’s claim on this matter to be without merit. V. Pinkham’s final claim on appeal asserts error in the trial court’s denial of his motion" }, { "docid": "17109108", "title": "", "text": "CAMPBELL, Circuit Judge. The plaintiffs appeal from the district court’s denial of their motion for a new trial in a diversity action for fraudulent misrepresentation, breach of fiduciary duty, unjust enrichment and violation of Massachusetts G.L. c. 93A. Their strongest argument on appeal is that the district court failed to explain to the jury the duties of a broker, as a fiduciary, not to make secret profits and not to conceal material information from the parties he represents. The case arises from the June 30, 1989 sale of an expensive 55-foot yacht called the “Baroness.” The plaintiffs are the sell er, Jerlyn Yacht Sales, Inc. (Jerlyn), a Massachusetts corporation, and the buyer, Oklahoma Offset, Inc. (Oklahoma), an Oklahoma corporation. The defendants are Wayne R. Roman and his corporation, Wayne R. Roman Yacht Brokerage, Inc. (Roman). Roman is a Florida yacht broker. As the parties are located in different states, the closing was accomplished via fax and mail. The plaintiffs alleged that Roman deliberately and fraudulently concealed from each of them the respective position of the other on the price of the boat, in order to procure a larger commission for himself. After a two day trial, the jury returned a verdict for the defendants on plaintiffs’ claims for fraudulent misrepresentation and breach of fiduciary duty. The district judge ruled for the defendants on plaintiffs’ unjust enrichment and M.G.L. c. 93A claims. Plaintiffs moved for a new trial on the grounds that the verdict was unsupported by legally sufficient evidence, against the weight of the evidence, and based on insufficient jury instructions. The district judge denied the motion without opinion. This appeal followed. The basic facts of the deal were largely undisputed, although there was a sharp difference in the testimony as to what information was conveyed by the defendant broker to the plaintiffs, especially to the seller. Plaintiff Jerlyn, the seller, was represented throughout the transaction by its president, Gerald Giagrando, a man with twenty-eight years of experience in the boat dealership and marina business. Jer-lyn’s business was to buy and sell power and pleasure boats. Giagrando estimated that he" }, { "docid": "14495892", "title": "", "text": "of the Employees’ work at Barber Foods. “As a general rule, a party may not appeal from a favorable judgment simply to obtain review of findings it deems erroneous.” Mathias v. Worldcom Techs., Inc., 535 U.S. 682, 684, 122 S.Ct. 1780, 152 L.Ed.2d 911 (2002) (per curiam). If we were to do as Barber Foods asks and reverse the challenged district court finding, our action would provide no tangible relief to Barber Foods; the company has already received all requested relief. See New York Tel. Co. v. Maltbie, 291 U.S. 645, 54 S.Ct. 443, 78 L.Ed. 1041 (1934). E. Jury Instructions Employees challenge two jury instructions, which “[w]e examine ... to determine whether they adequately explained the law or whether they tended to confuse or mislead the jury on the controlling issues.” Federico v. Order of Saint Benedict, 64 F.3d 1, 4 (1st Cir.1995). We will reverse jury instructions only if the error was prejudicial in light of the entire record. Id. at 3. “An erroneous jury instruction necessitates a new trial only if the error could have affected the result of the jury’s deliberations.” Allen v. Chance Mfg. Co., 873 F.2d 465, 469 (1st Cir.1989). The first challenged jury instruction states the following: I instruct you that any time spent walking between the time clock and a bin or locker is not compensable.... It is only the time spent actually putting on or taking off the item and placing it in a bin or locker which you must determine. After the trial judge gave the instruction, Employees’ counsel objected, arguing that the jurors might believe that they are not to compensate an employee if she is walking while donning or doffing. We find no error in- this instruction. When we look at the instructions in their entirety, we find that the jurors were clearly apprised of their duty, and that the instruction would not have confused or misled the jury about the controlling issues. The second challenge is also without foundation. The challenged instruction states: Now, I instructed you to don an item of clothing, for legal purposes, means" }, { "docid": "8531313", "title": "", "text": "misrepresentation count, the court stated that the plaintiff's theory was that \"upon learning of the absence of the static mixer, it became defendant’s duty to do two things: first, to install it; and secondly, to tell the plaintiff that it wasn’t in.” On the eighth day of trial, which was a Friday, the district court asked counsel whether \"the lack of disclosure or the absence of the static mixer [could] serve as a basis of a misrepresentation and fraud,” and asked them to think about the issue over the weekend. On the ninth day of trial, the court announced its view that a fraudulent nondisclosure theory might be a basis for liability. After having a chance overnight to consider the objections it would lodge against the district court’s theory, Napco lodged basically the same objections it later gave to the supplemental instruction. In light of this record, we do not agree that Napeo’s failure to object should be excused because the fraudulent nondisclosure theory was a surprise. . Jerlyn Yacht Sales, Inc. v. Wayne R. Roman Yacht Brokerage, 950 F.2d 60 (1st Cir.1991), a case upon which Napco places great reliance, is inapplicable. In Jerlyn Yacht Sales there was at least some request that the court include an instruction on the specific issue raised on appeal. Id. at 64. There was no such request here. Despite Napeo’s claims to the contrary, this is a garden variety failure to object situation. . Because Napco cannot, satisfy the discretionary elements of the plain error standard, we need not decide whether the instruction was “plainly” incorrect. Cf. United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 1777, 123 L.Ed.2d 508 (1993) (\"Plain is synonymous with clear or, equivalently, obvious”; the error must be \"clear trader current law” (internal quotation marks omitted)). Napco argues that Massachusetts law is clear that knowledge of materiality is required. According to Napco, under Massachusetts law, \"[a]bsent a showing that the defendant knew that his statement was false, and intended to induce reliance, the tort of intentional misrepresentation simply does not lie.” (Emphases in original.) Napco argues" }, { "docid": "18651948", "title": "", "text": "alteration or modification of the all terrain vehicle. [3] [I]f you find that certain safety related items on the all terrain vehicle were improperly maintained and this improper maintenance created a danger that was a substantial cause of Mr. LaPlante's injuries ... then you must find the Honda defendants are not liable for plaintiff’s injuries. Appellants’ Second Supplemental Jury Instructions at 1-2. Plaintiff argues that the above request was defective because Honda did not label it as an affirmative defense. Assuming plaintiff is correct, the judge still had a duty to submit the statutory defense to the jury. See Jerlyn Yacht Sales v. Roman Yacht Brokerage, 950 F.2d 60, 69 n. 16 (1st Cir.1991). A rational jury, presented with Honda’s subsequent alteration defense, could have found that any or all of the alleged alterations or modifications “substantially caused” plaintiffs injuries. Consequently, the court’s instructional error could have changed the outcome of the trial. Honda was not only entitled to have the jury instructed on this defense, but it is evident that the court’s failure to give the instruction was reversible error. Plaintiff raises one additional argument that warrants brief discussion. He maintains that the district court’s failure to give a subsequent alteration charge, even if reversible error, has no bearing on the negligent failure to warn claim. This argument fails for two reasons. First, § 9-1-32 expressly covers failure to warn claims as well as design defect claims. R.I.Gen.Laws § 9-1 — 32(a)(1) (“product liability damages” includes damages for personal injuries sustained by reason of an alleged defect in a product or an alleged failure to warn against a danger). Second, the case cited by plaintiff as support for this proposition, Witthauer v. Burkhart Roentgen, Inc., 467 N.W.2d 439 (N.D.1991), is clearly distinguishable. In Witthauer the court held that a North Dakota statute similar to § 9-1-32 did not provide manufacturers with a defense to claims of negligent failure to warn consumers of dangers caused by foreseeable alterations or modifications to a product. Here, plaintiffs claim is that Honda failed to warn him of dangers caused by the ATV’s original" }, { "docid": "10514455", "title": "", "text": "uncertain about the proof on conspiracy or agency, could easily have thought that the mere association of the defendants in seeking to sell MMI made each liable for whatever the others did in connection with the sale. That is not the law. Frequently, in civil jury cases with multiple theories, judges use special verdicts or interrogatories to isolate potential problems. See Fed.R.Civ.P. 49. Here, for example, the district court could have asked the jury to say, as to each defendant and each of the two claims, whether it based liability on direct participation, agency, partnership or conspiracy. But the court asked only for separate verdicts against each defendant on the common law and statutory claims. Thus, on each count, liability could easily have been based on partnership — the vicarious liability theory, at least as defined, with the fewest strings attached. Assessing the risk of prejudice from an uncalled-for instruction is no easy matter. If the evidence were overwhelming on alternative theories, we might well treat as harmless an error whose inherent tendency is to cure itself. Jerlyn Yacht Sales, Inc. v. Wayne R. Roman Yacht Brokerage, 950 F.2d 60, 69 (1st Cir.1991). But the breadth of the partnership instruction dampened this tendency; and, as will become clear, vicarious liability on other theories is at best a close call. We are also doubtful whether there was an adequate evidentiary basis for instructing on civil conspiracy, although this is a closer question. To oversimplify slightly, the civil conspiracy charge required proof that two or more of the individuals on the defense side had agreed to the use of lies or culpable omissions about MMI’s post-sale prospects. Aetna Cas. Sur. Co. v. P & B Autobody, 43 F.3d 1546, 1564 (1st Cir.1994); Ferguson v. Omnimedia, Inc., 469 F.2d 194, 197 (1st Cir.1972). The companies, of course, could also be conspirators, but only if individuals acting for the companies made such agreements. No direct proof of such an agreement was offered, but in conspiracy cases proof by inference is common, and such proof may suggest either that there was a formal (but concealed)" }, { "docid": "12520648", "title": "", "text": "the jury on the quantum of proof applicable to Pateman’s tort claim against Frenkel. A preserved instructional error requires a new trial if, on the record as a whole, a reviewing court cannot say with fair assurance that the judgment was likely unaffected. See Gardner, 643 F.2d at 1137; see also Jerlyn Yacht Sales, Inc. v. Roman Yacht Brokerage, 950 F.2d 60, 69 (1st Cir.1991) (applying standard). Here, the error had more than a merely theoretical impact. The case was hotly contested and, until the jury spoke, the outcome was problematic. Thus, the failure of the district court to instruct the jury on the proper quantum of proof may well have swayed the outcome. The error, then, was not harmless. Frenkel, having requested a more befitting instruction and taken a timeous objection to the charge as framed, has standing to complain. Accordingly, the judgment against Frenkel cannot stand. V. CONCLUSION In this bitterly disputed case, the parties’ relentless pursuit of gold (or its cash equivalent) has taken the district court, and this court, through a myriad of issues — some genuine, some inaurate. Happily, having reached this juncture, we need go no further. To sum up, our assay reveals that Putnam’s arguments, though ably made by distinguished appellate counsel, consist more of dross than of gold. As between Putnam and Pateman, the jury verdict was free from cognizable error and was disposi-tive of both the complaint and the counterclaim. Consequently, the judgment entered by the district court was lawful. Frenkel, on the other hand, has mined a more enriching vein. The verdict Pateman obtained against it was seriously tarnished by the incidence of instructional error. Consequently, the judgment entered below in Pateman’s suit against Frenkel must be vacated and the case remanded for a new trial. In No. 91-1307, the appeal is rejected and the underlying judgment is affirmed. In No. 91-1308, the appeal is sustained in relevant part, the underlying judgment is vacated, and the case is remanded to the district court for retrial. Costs in favor of the appellees in No. 91-1307 and the appellant in No. 91-1308." }, { "docid": "23444495", "title": "", "text": "because of any of the remarks complained of, but apparently chose to gamble on the verdict. Since its strategy failed, we will not now entertain Bunge’s argument that Colburn’s trial tactics are grounds for a new trial. Nissho-Iwai Co., 848 F.2d at 619; see Skaggs v. J.H. Rose Truck Line, Inc., 435 F.2d 695 (5th Cir.1970) (failure to object to use of “golden rule” argument during closing argument precludes appellate review). We find no abuse of discretion here. IV. AMOUNT OF THE VERDICT Bunge contends that the jury’s general verdict awarding Colburn $450,000 is excessive, and that jury instructions pertaining to damages impermissibly affected the quantum of the award. Bunge makes several arguments, two of which have merit: 1) no cautionary instruction was given to ameliorate the effect of the “unit of time” argument made by Colburn’s counsel, and 2) the jury was not instructed to discount the future wage loss award to present value. Recognizing that “[assessment of damages is an uncertain art at best, and in the absence of a clear abuse of discretion in either direction, we must abide the jury’s measure,” Ward v. Buehler, 472 F.2d 1170, 1171 (5th Cir.1973) (citation omitted), we aren’t persuaded that the amount of the award is per se excessive. We do, however, find that the jury charge in regard to damages was substantially flawed and resulted in prejudicial error. A. Unit of Time During closing argument, Colburn’s attorneys made a “unit of time” argument, suggesting to the jury that $1.00 per hour for the number of hours in Colburn’s 4714 year remaining life expectancy, for a total of $420,000, would be a satisfactory measure of non-economic damages. Following the initial jury instructions, the trial court invited counsel to object to the charge. Bunge objected to the “unit of time” argument and tendered a proposed cautionary instruction. The trial court refused to give the instruction, stating that “[the instruction] should have been presented to the court at the time that the other instructions were, and to go back now ... would [be unduly] critical of [the plaintiffs argument]. The defendant had" }, { "docid": "15986882", "title": "", "text": "separable amount, and then you deduct that amount or that portion and the Danielson folks get the remainder. The judge’s response to the jury’s hypothetical was inconsistent with two leading cases presenting similar facts, Sheldon, 309 U.S. at 404, 60 S.Ct. 681, and Abend, 863 F.2d at 1478-80. Otherwise, the second charge merely echoed the court’s original error, albeit without some of the intensifying adverbs, and it did nothing to undo the damage. WCP did not need to prove that its noninfringing contributions to the development were “wholly separate” from Danielson’s plans, as the first instruction repeatedly said. It is also wrong to state, as did the second instruction, that apportionment is unavailable where the final product was “enhanced or allowed or un-dergirded by the copyright infringement.” ' In light of these erroneous instructions on apportionment, we must vacate the copyright damages. See Data Gen., 36 F.3d at 1177 (citing Allen v. Chance Mfg. Co., 873 F.2d 465, 470 (1st Cir.1989)). Apportionment is “ultimately a delicate exercise informed by considerations of fairness and public policy, as well as fact.” Data Gen., 36 F.3d at 1176. The instructions here did not fulfill these goals, and the jury’s verdict was distorted as a result. B. Other Damages Issues In addition to profits based on the infringement, Danielson is also entitled to any actual damages it suffered. 17 U.S.C. § 504(b). If, for example, Danielson demonstrated the amount of compensation that it might have obtained from WCP, but had lost because WCP unlawfully copied the drawings instead, that sum would serve as a good measure of actual damages. The district court determined that the jury had added $120,000 to its award of copyright damages and that this amount was overly speculative, and so the court reduced the award commensurately. Danielson appeals this decision. We are concerned that the court’s response may itself have depended on speculation, but by vacating the damages award we have eliminated the need to decide this question. We also vacate the district court’s alternative order of remittur. Danielson may offer evidence to show actual damages in any further proceedings" }, { "docid": "216968", "title": "", "text": "the evidence, of “but for” causation. The erroneous instruction here permitted the jury to impose liability even in the absence of that causal nexus. Therefore, another retrial is necessary. See Allen v. Chance Mfg. Co., 873 F.2d 465, 469 (1st Cir.1989) (“An erroneous jury instruction necessitates a new trial ... if the error could have affected the result of the jury’s deliberations.”). III. We vacate the judgment in Drumgold’s favor and remand this case to the district court for a new trial consistent with this opinion. Each party is to bear its own costs. So ordered. . Drumgold's claims against Murphy were dismissed prior to trial. The claims against Roache and the City of Boston remain pending in the district court. The claims against Walsh went to trial together with those against Callahan, but the jury found that Walsh was not liable. Only Drumgold's claims against Callahan are relevant for the purposes of this appeal. . We summarize the testimony of other prosecution witnesses below. . Drumgold also alleged that Callahan withheld evidence regarding two other prosecution witnesses, Mary Alexander and Tracy Peaks. Those allegations were rejected by the jury in the 2008 civil trial and are not pertinent to this appeal. . There is no indication in the record that Evans was ever criminally charged with perjury. . The jury was also asked whether Drumgold had proven that Callahan intentionally or recklessly obtained false statements or manufactured evidence. The jury answered \"no” to that question. . Callahan's other arguments are that the judge erred in excluding from the 2009 retrial a package of forty-five investigative reports, instructing the retrial jury on the extent of damages for which he could be held liable, failing to remit a portion of the damages award, and awarding excessive attorneys’ fees. . \"Significant possibility” might be a better term than \"reasonable probability” because the latter term \"raises an unjustifiable risk of misleading courts into treating it as akin to the more demanding standard, ‘more likely than not.’” Strickler, 527 U.S. at 298, 119 S.Ct. 1936 (Souter, J., concurring in part and dissenting in part)." }, { "docid": "17109130", "title": "", "text": "clear description of the omitted matter after the supplemental charge. We hold that the court should have instructed on these important concepts and that it was error not to have done so. We also hold that the omissions were errors of “sufficient magnitude to require a new trial.” Allen v. Chance Manufacturing Co., 873 F.2d 465, 469 (1st Cir.1989). On the record as a whole, we cannot say that the jury would have found no breach of fiduciary duty had it been properly instructed on Roman’s affirmative duties as a broker. Given the strong evidence of concealment when Roman told Fleming that Giagrando had rejected Fleming’s initial $800,000 bid, and Roman's failure to inform Giagrando of Fleming’s $850,000 offer before sending the purchase agreement (which bore an $800,000 price) to Giagrando for execution, the jury’s attention should have been focused on the broker’s duty to avoid secret profits and to disclose all material facts to his principals. The court’s charge as given only informed the jury that a broker has a general duty to disclose possible “conflicts of interest” that might make an agent act in his own interest at the expense of his principal. This was an understatement. A fiduciary’s duty goes much farther. Absent an agreement to the contrary, a broker must put his principal’s interest first and refrain from competing with the principal as to the subject matter of the agency. Restatement (Second) of Agency § 393. He must be “up front” with his principal at all times. As the court’s instructions to the jury on the broker’s fiduciary duties were fatally deficient, there must be a new trial on the claim that Roman violated such duties both to Fleming and Giagrando. We also hold that the judgment denying plaintiffs’ fraudulent misrepresentation claim must be vacated leaving that claim open to retrial, as the inadequate jury instructions concerning Roman’s duties as a fiduciary may have misled the jury in deciding that claim. The instructions on that claim required the making of a false statement of material fact. There was no reference to possible fraud where a fiduciary" }, { "docid": "20322923", "title": "", "text": "that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection.” See also Neu v. Grant, 548 F.2d 281, 287 (10th Cir.1977) (“The need for specific objection applies to ... instructing the jury_”). During the trial, Unit raised two specific objections to the jury instructions. Neither objection related to the possibility that the jury would reduce Unit’s award by the cost to Enron of fixing the pipes and separately award Enron the same damages on its claim for a set-off. Unit complained generally that the verdict forms were “extremely difficult to understand.” However, when the trial judge asked Unit to suggest a way to make the forms more understandable, Unit did not provide one. The confusion encountered in the verdict forms could have been cured with an instruction telling the jury that if they reduced Unit’s Form 1 award of damages by the amount it cost Enron to fix the pipes, they should not also award that amount to Enron as a set-off on Form 3. However, Unit sought no such instruction. Where the issue of jury instructions is not preserved for appeal, the court reviews the instructions for plain error. United States v. Zimmerman, 943 F.2d 1204, 1213 (10th Cir.1991). Plain error requires a finding that the instructions were “patently plainly erroneous and prejudicial.” Moe v. Avions Marcel Dassault-Breguet Aviation, 727 F.2d 917, 924 (10th Cir.1984). The instructions given may have led the jury erroneously to award the plaintiff damages under a formula for substantial performance, thus reducing Unit’s damages by the cost to Enron of fixing the pipes, and separately to award Enron the cost of the repairs as a set-off. Alternatively, the instructions may have confused the jury about how to fill out the verdict forms. On the whole, however, the instructions given were a correct statement of the law and the imperfections in them did not rise to the level of plain error. B. Questioning of Jurors Unit next claims that the trial court erred in refusing to ask the jury to clarify" }, { "docid": "22137613", "title": "", "text": "at trial comes nowhere near the level of “willfulness, recklessness, or wickedness amounting to criminality” necessary to trigger entitlement to punitive damages under Rhode Island law. Also, we think that the jury instructions the trial judge did give and the verdicts the jury subsequently returned demonstrate that, even if the court erred in failing to instruct on punitive damages, plaintiff did not suffer sufficient prejudice to require reversal of the judgment. The court directed verdicts finding defendant police officers liable under section 1983 and DiMeo liable for false arrest. The court then instructed the jury on the standards for awarding both compensatory and nominal damages. In instructing on nominal damages, the court charged that even if the jury were to find that Davet suffered no actual damages, the jury could still return a verdict in a nominal amount, thus confirming their recognition that a false arrest had occurred. Plaintiff made no objection to these instructions. The jury returned a verdict finding no damages. Presumably, by refusing to find even nominal damages, the jury decided not to confirm the district court’s ruling that a false arrest had occurred. Given these facts, even if we considered the court’s refusal to give a punitive damages instruction to be error, the error would be harmless, since it did “not affect the substantial rights of the parties.” Fed.R.Civ.P. 61; see Kotler v. American Tobacco Co., 926 F.2d 1217, 1229 (1st Cir.1990) (“[I]f the instructions that the jury should have received on breach of warranty were materially equivalent to, or subsumed by, the instructions actually received on negligence, then the failure to submit the warranty count to the jury was rendered harless by the verdict on the negligence count.”); Allen v. Chance Mfg. Co., 873 F.2d 465, 469 (1st Cir.1989) (erroneous jury instruction will “necessitate[] a new trial only if the error could have affected the result of the jury deliberations”). B. Motion for Judgment as a Matter of Law and/or New Trial After trial, and again on appeal, plaintiff argues that he is entitled, in the alternative, to have the' court either set aside the" } ]

[ { "docid": "22643123", "title": "", "text": "creates rights enforceable against States under § 1983. The House and Senate Reports are replete with indications that Congress intended that States actually adopt rates that are “reasonable and adequate.” The Conference Committee Report explains that “the conferees intend that State hospital reimbursement policies should meet the costs that must be incurred by efficiently-administered hospitals in providing covered care and services to medicaid eligibles as well as the costs required to provide care in conformity with State and Federal requirements.” H. R. Conf. Rep. No. 97-208, p. 962 (1981); see S. Rep. No. 97-139, p. 478 (1981) (amendment requires “States to reimburse hospitals at rates . . . that are reasonable and adequate to meet the costs which must be in curred by efficiently and economically operated facilities”); H. R. Rep. No. 97-158, Vol. 2, pp. 293-294 (1981) (“In permitting States greater flexibility in reimbursement system design, the Committee intends the States to ensure that such alternative systems provide fair and adequate compensation for services to Medicaid beneficiaries. . . . The Committee believes that hospitals should be paid for the cost of their care to Medicaid patients in the most economical manner”); see also Medicaid and Medicare Amendments: Hearings on H. R. 4000 before the Subcommittee on Health and the Environment of the House Committee on Interstate and Foreign Commerce, 96th Cong., 1st Sess., 845 (1979) (statement of Sen. Boren) (amendment “places responsibility squarely on the States to establish adequate payments”); 126 Cong. Rec. 17885 (1980) (the “amendment . . . achieves the present law’s objective of assuring high-quality care” and “differs from the present law with respect to the methods States may employ in determining reasonable and adequate rates”) (colloquy between Sen. Pryor and Sen. Boren). See, e. g., Alabama Nursing Home Assn. v. Harris, 617 F. 2d 388, 395-396 (CA5 1980); California Hospital Assn. v. Obledo, 602 F. 2d 1357, 1363 (CA9 1979); Minnesota Assn. of Health Care Facilities v. Minnesota Dept. of Public Welfare, 602 F. 2d 150, 154 (CA8 1979); Hospital Assn. of New York State, Inc. v. Toia, 577 F. 2d 790 (CA2 1978);" } ]

[ { "docid": "12340191", "title": "", "text": "97-158, Vol. 2, p. 292-93 (1981)). Since the Boren Amendment was enacted, most States have abandoned retrospective reimbursement plans that paid providers for the reasonable cost of the services actually provided, and have adopted plans that are prospective in nature, paying hospitals in accordance with the State’s determination of what Medicaid care should cost. The Washington Medicaid Plan in this case is a prospective plan. 7. The Boren Amendment, codified at 42 U.S.C. § 1396a(a)(13)(A), provides that a State must reimburse providers according to rates that it “finds, and makes assurances to the Secretary, are reasonable and adequate to meet the costs which must be incurred by efficiently and economically operated facilities in order to provide care and services in conformity with applicable State and Federal laws, regulations, and quality and safety standards.” The State must also find, and make assurances satisfactory to the Secretary, that individuals have “reasonable access” to facilities of “adequate quality.” 8. The Medicaid Act does not define the terms “reasonable and adequate,” “costs which must be incurred,” or “efficiently and economically operated facilities,” and the Secretary has refused to define such terms, concluding that States should determine the factors to be considered in determining what rates are “reasonable and adequate” to meet the costs which must be incurred by “efficiently and economically operated facilities.” 48 Fed.Reg. 56049 (1983); Wilder, — U.S. at-, 110 S.Ct. at 2516, 110 L.Ed.2d at 465. The Medicaid Act, as modified by the Boren Amendment, has been the cause of significant litigation in many states. See, e.g., Pinnacle Nursing Home v. Axelrod, 928 F.2d 1306 (2nd Cir.1991); West Virginia University Hospitals, Inc. v. Casey, 885 F.2d 11 (3rd Cir.1989), aff'd on other grounds, — U.S. -, 111 S.Ct. 1138, 113 L.Ed.2d 68 (1991); Virginia Hospital Ass’n v. Baliles, 830 F.2d 1308 (4th Cir.1987); Mississippi Hospital Ass’n v. Heckler, 701 F.2d 511 (5th Cir.1983); Wisconsin Hospital Association v. Reivitz, 733 F.2d 1226 (7th Cir.1984); Nebraska Health Care Ass’n v. Dunning, 778 F.2d 1291 (8th Cir.1985), cert. denied, 479 U.S. 1063, 107 S.Ct. 947, 93 L.Ed.2d 996 (1987); Colorado Health Care Ass’n v." }, { "docid": "11422806", "title": "", "text": "for determining Medicaid reimbursement rates does not comply with the procedural requirements of the Boren Amendment. The Boren Amendment requires states to set rates “which the State finds, and makes assurances satisfactory to the Secretary, are reasonable and adequate to meet the costs which must be incurred by efficiently and economically operated facilities in order to provide care and services in conformity with applicable State and Federal laws, regulations, and quality and safety standards....” 42 U.S.C. § 1396a(a)(13)(A). “[Tjhe statute requires the State, in making its findings, to judge the reasonableness of its rates against the objective benchmark of an ‘efficiently and economically operated facility’ providing care in compliance with federal and state stan-dards_” Wilder v. Virginia Hospital Ass’n, — U.S. —, 110 S.Ct. 2510, 1523, 110 L.Ed.2d 455 (1990). At a minimum, the Boren Amendment requires that a state “make ‘findings’ which identify and determine (1) efficiently and economically operated hospitals; (2) the costs that must be incurred by such hospitals; and, (3) payment rates which are reasonable and adequate to meet the reasonable costs of the state’s efficiently and economically operated hospitals.” AMISUB (PSL) v. State of Colorado DSS, 879 F.2d 789, 797 (10th Cir.1989), cert. denied, — U.S. —, 110 S.Ct. 3212, 110 L.Ed.2d 660 (1990). “In other words, the state must make findings which establish a nexus between the costs of operating efficient and economic nursing facilities and the proposed reimbursement rates under the state plan.” Pinnacle Nursing Home v. Axelrod, 928 F.2d 1306, 1315 (2nd Cir.1991). DSS states correctly that the Health Care Financing Administration (“HCFA”) does not require states to define “efficiently and economically operated facilities” because such definitions are implicit in the states’ method and standards. See 48 Fed. Reg. 56046, 56049 (Dec. 19, 1983). Thus, DSS argues, the procedural requirements of the Boren Amendment are met once DSS completes a bona fide finding process. Citing AMISUB, 879 F.2d at 797. This Court does not agree. The Court in AMISUB states that it is presumed that a state will complete a bona fide findings procedure prior to making assurances to HCFA that the" }, { "docid": "2751532", "title": "", "text": "IDPA has again failed to make any finding that this is so. For example, it has provided no evidence that those facilities “provide care and services in conformity with applicable State and Federal laws, regulations, and quality and safety standards,” an equally important aspect of the Boren standard (Section 1396a(a)(13)(A)). Even more importantly in substantive terms — and critically so for IHCA members with lesser profits or even losses — nothing in such a “survey” casts light on whether or not such other nursing homes are also “economically and efficiently operated,” so that higher rates are called for to keep them afloat to serve the public needs. IDPA’s second study (D.Ex. 24), which lists the profits earned by 176 Illinois facilities, is even less useful. Profitability alone provides no information about the adequacy of Medicaid reimbursements, as those facilities serve private patients as well as Medicaid beneficiaries. Thus IDPA’s “reasoning” in these terms {id. at Clarification Note 5) is wholly flawed: The 176 facilities on this list earned a total of $111.4 M in profits last year. The facilities on this list represent 36% of all Medicaid patient days. This indicates that our rates are “adequate” to more than cover the costs of efficiently operated nursing homes. Moreover, neither study sheds any light on IDPA’s compliance with the procedural requirement of the Boren Amendment— each has plainly been conducted in response to this litigation and not as a basis for IDPA’s assurances to HHS. Even if either or both studies did prove (as they have not) that Illinois was reimbursing at rates that are reasonable and adequate to meet the costs incurred by efficiently and economically operated facilities, any such compliance with the substantive requirements of the Boren Amendment would have occurred purely by chance and not as a result of IDPA’s compliance with the procedural Boren requirements. Finally, in perhaps its most awkward attempt to prove the existence of findings, IDPA offers evidence that the number of nursing home beds in the state of Illinois has increased while occupancy has decreased, that people are willing to buy nursing homes" }, { "docid": "23247189", "title": "", "text": "“[t]he Medicaid agency pays for inpatient hospital services and long-term care facility services through the use of rates that are reasonable and adequate to meet the costs that must be incurred by efficiently and economically operated providers____” 42 C.F.R. § 447.253(b)(l)(i). (B) Since New York elected to participate in the Medicaid Program, it was required to abide by the Boren Amendment and the regulations promulgated thereunder. Harris v. McRae, 448 U.S. 297, 301 (1980); AMISUB (PSL), Inc. v. Colorado Dep’t of Social Servs., 879 F.2d 789, 794 (10 Cir.1989), cert. denied, 110 S.Ct. 3212 (1990). Article 28 of the New York Public Health Law charges the New York State Department of Health (DOH) with the responsibility for setting Medicaid reimbursement rates for nursing homes. N.Y.Pub.Health Law § 2808 (McKinney 1990). In 1986, apparently in response to the Boren Amendment, New York set its Medicaid reimbursement rates prospectively adjusted for inflation, based on historic 1983 costs incurred by nursing homes throughout the state. This reimbursement methodology is set forth in subpart 86-2 of the Commissioner’s Administrative Rules and Regulations. N.Y.Comp.Codes R. & Regs, tit. 10 § 86-2 (1988). The Supreme Court recently has recognized that such reimbursement methods are typical of those formulated by the states after the enactment of the Boren Amendment: “Before the passage of the Boren Amendment,' state plans provided for reimbursement on a retrospective basis; that is, health care providers were reimbursed according to the reasonable cost of services actually provided. Since the passage of the Boren Amendment in 1981, however, most States have adopted plans that are prospective in nature____” Wilder, supra, — U.S. at —, 110 S.Ct. at 2516 n. 7 (1990) (emphasis in original). As an element of its 1986 plan, New York adopted the Riegional Direct Input Price Adjustment Fadtory (“RIPAF”) in order to “neutralize[ ] the difference in wage and fringe benefit costs between and among the regions [of New York State]”. N.Y.Comp.Codes R. & Regs. tit. 10, § 86-2.10(c)(3)(i). Pursuant to RIPAF, New York State was divided into sixteen geographic regions based on common labor pools. An average wage rate was" }, { "docid": "7235275", "title": "", "text": "to the Medicaid Act, which repealed the Boren Amendment. See Pub.L. No. 105-33, § 4711, 11 Stat. 251, 507-OS (1997). The Boren Amendment provided in relevant part: A State plan for medical assistance must ... provide ... for payment ... of the hospital services, nursing facility services, and services in an intermediate care facility for the mentally retarded ... through the use of rates ... which the State finds, and makes assurances satisfactory to the Secretary, are reasonable and adequate to meet the costs which must be incurred by efficiently and economically operated facilities ... to assure that individuals eligible for medical assistance have reasonable access ... to inpatient hospital services of adequate quality])] 42 U.S.C. § 1396a(a)(13)(A) (1992). One of the primary purposes for passing the Boren Amendment was to provide states with flexibility in setting reimbursement rates and thereby reduce Medicaid costs. See Wilder, 496 U.S. at 505-06, 110 S.Ct. 2510. However, because of the litigation that was generated after the Boren Amendment’s enactment, Congress recognized that the Amendment had the opposite effect on Medicaid costs than it had intended. See 141 Cong. Rec. SI8693 (1995) (statement of Sen. Roth) (\"The Boren amendment ... has been used to actually bid the price of nursing home care up higher.”). Accordingly, with the continued rise in Medicaid costs, Congress repealed the Boren Amendment in the Balanced Budget Act of 1997. See H.R.Rep. No. 105-149, at 1230 (1997). According to the legislative history, Congress's intent in repealing the Boren Amendment was \"to provide States with greater flexibility in setting provider reimbursement rates under the Medicaid Program.” 143 Cong. Rec. S4000 (1997) (statement of Sen. Hutchison). Congress replaced the Boren Amendment with the more limited requirement that states provide for a public notice-and-comment process in their reimbursement ratemaking decisions. See 42 U.S.C. § 1396a(a)(13)(A) (2000). Again according to the legislative history, Congress intended to free the states from federal regulation and increased rates and to eliminate a basis for causes of action by providers to challenge reimbursement rates. See H.R.Rep. No. 105-149, at 1230 (1997) (\"A number of Federal courts have ruled" }, { "docid": "13034628", "title": "", "text": "standards developed by the State) and which, in the case of hospitals, take into account the situation of hospitals which serve a disproportionate number of low income patients with special needs and provide, in the case of hospital patients receiving services at an inappropriate level of care ... which the State finds, and makes assurances satisfactory to the Secretary, are reasonable and adequate to meet the costs which must be incurred by efficiently and economically operated facilities in order to provide care and services in conformity with applicable State and Federal laws, regulations, and quality and safety standards and to assure that individuals eligible for medical assistance have reasonable access (taking into account geographic location and reasonable travel time) to inpatient hospital services of adequate quality; and such State makes further assurances, satisfactory to the Secretary, for the filing of uniform cost reports by each hospital, skilled nursing facility, and intermediate care facility and periodic audits by the State of such reports; .... 42 U.S.C. § 1396a(a)(13)(A). The Health Care Financing Administration (HCFA) charged with the responsibili ty for administering the Medicare and Medicaid programs, published regulations implementing the Boren Amendment on September 30, 1981. 42 C.F.R. §§ 447.250-447.280. In pertinent part, the regulations require states which participate in the Medicaid program to make findings and submit assurances to HCFA {id. at § 447.253(a)(b)) that their inpatient hospital service payment rates “are reasonable and adequate to meet the costs that must be incurred by efficiently and economically operated facilities_” Id. at § 447.250(a). Furthermore, states must, in setting their reimbursement rates, “take into account the situation of hospitals which serve a disproportionate number of low income patients....” Id. at § 447.253(b)(l)(ii)(A). It is plaintiff’s contention the defendants have not complied with the Boren Amendment or its implementing regulations. WVUH is challenging the legality of Pennsylvania’s overall payment system, based upon statutory requirements and upon Pennsylvania’s own definition of what should be included in a reasonable rate. One part of the challenge involves the issue of the number and type of low income patients WVUH serves. Approximately thirty-eight percent (38%) of" }, { "docid": "6518293", "title": "", "text": "the Department of Human Services (“DHS”), Velvet Miller, the Director of the Division of Medical Assistance and Health Services of DHS, and Leonard Fishman, the Commissioner of the New Jersey Department of Health (“DOH”). The defendants have been sued in their official capacities. DHS is the state agency responsible for New Jersey’s Medicaid Program, and the Division of Medical Assistance and Health Services is the office within DHS that administers the program. DOH assists DHS with Medicaid rate-setting. In this opinion, the defendants will be referred to as “New Jersey” or “the State.” B. Medicaid and the Boren Amendment The Medicaid program “ ‘establishes a joint federal and state cost-sharing system to provide necessary medical services to indigent persons who otherwise would be unable to afford such care.’ ” Temple Univ. v. White, 941 F.2d 201, 205 (3d Cir.1991) (quoting Pinnacle Nursing Home v. Axelrod, 928 F.2d 1306, 1309 (2d Cir.1991)). State participants receive federal Medicaid funds in return for administering a Medicaid program. They are obligated to comply with certain federal statutory and regulatory requirements in developing their programs. See West Va. Univ. Hosps., Inc. v. Casey, 885 F.2d 11, 15 (3d Cir.1989). Historically, states paid hospitals the “reasonable costs” of services actually provided. See Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498, 507 n. 7, 110 S.Ct. 2510, 2516 n. 7, 110 L.Ed.2d 455 (1990). This amounted to payment for the actual costs incurred by hospitals in providing care to Medicaid recipients, regardless of disparities in costs or efficiencies among hospitals. However, in 1981 Congress enacted the Boren Amendment to the Social Security Act, which gave state participants the ability to alter the Medicaid repayment methodology. States were given more flexibility to formulate their rates. Programs could include statewide or classwide rates, rates based on a prospective cost, or incentive provisions to encourage efficiency. Flexibility was ensured by limiting federal oversight. See id. at 507, 110 S.Ct. at 2516. The Amendment “replaced the ‘reasonable cost’ standard with the current standard of ‘reasonable and adequate to meet the costs which must be incurred by efficiently and economically operated facilities.’" }, { "docid": "23239275", "title": "", "text": "affirm. I. A. Colorado Medicaid Reimbursement Plan The central issue is whether the State’s decision to amend its Medicaid plan so as to eliminate the payment of the incentive allowance resulted in violation of the Medicaid standards mandated by the Boren Amendment. Codified within 42 U.S.C. 13-96a(a)(13)(A)(1982), the Boren Amendment of 1980 requires that a state reimburse service providers under rates which are reasonable and adequate to meet the costs which must be incurred by efficiently and economically operated facilities in order to provide care and services in conformity with applicable state and Federal laws, regulations and quality and safety standards. Id. (Effective October 1, 1980). Under the Colorado Medicaid plan, the State pays certified nursing homes for their services to qualified Medicaid patients on a daily rate, paid per patient per day (PPD). The Colorado Department of Social Services (DSS) is the State agency which administers the Medicaid program. DSS establishes a PPD rate for individual nursing homes. The rate is prospective and based on historical costs for all certified and participating nursing homes for the preceding reporting period of six months. The reimbursement rate is adjusted every six months. The overall PPD rate for each participant provider is calculated and determined by two components: administration costs and health care costs. Administration costs which are reimbursable or allowable under state law include the expenses incurred with the administration of the nursing home, property, and room and board. Health care costs are not included in the calculation of the incentive allowance at issue. Colo.Rev.Stat. § 26-4-103(4.5). The administrative costs are the basis for the incentive allowance and are subject to a maximum reimbursement formula or ceiling. This ceiling is statutorily defined within “Reasonable cost of services” as “the actual costs of ... administration, property and room and board costs excluding food costs, to the ninetieth percentile of medicaid patients” residing in participating facilities. Id. The reasonable cost or ninetieth percentile is based on the reported costs of medicaid patients in all participating nursing homes in the State. These costs are audited and reviewed in the six- months period being used" }, { "docid": "2751513", "title": "", "text": "v. Reivitz, 820 F.2d 863, 864 (7th Cir.1987)). To qualify for federal reimbursement, a state must submit for the approval of the Secretary of the United States Department of Health and Human Services (“HHS”) a plan for medical assistance (Section 1396a(a) and (b)). Each such plan must contain a comprehensive statement describing the nature and scope of the state’s Medicaid program (42 C.F.R. [“Reg.”] § 430.10 (1990)). When originally adopted in 1965, the Act required states to reimburse nursing homes for the “reasonable cost” of services provided under a state’s Medicaid plan (Wilder, 110 S.Ct. at 2515, citing Pub.L. 89-97, § 1902(a)(13)(B)). In 1980 Congress decided that the “reasonable cost” reimbursement was “inherently inflationary and contained] no incentives for efficient performance” (S.Rep. No. 139, 97th Cong., 1st Sess. 478 (1981), U.S.Code Cong. & Admin.News 1981, pp. 396, 744 (hereafter cited simply “S.Rep. No. 139 at _”); see also 2 H.R.Rep. No. 158, 97th Cong., 1st Sess. 293 (1981) (hereafter cited simply “2 H.R.Rep. No. 158 at_”)). It therefore replaced that approach with the Boren Amendment, which in its current form requires a state plan for medical assistance to provide (Section 1396a(a)(13)(A)): for payment ... of the hospital services, nursing facility services, and services in an intermediate care facility for the mentally retarded provided under the plan through the use of rates (determined in accordance with methods and standards developed by the State [here the statute sets out factors to be taken into account in developing those methods and standards] ) which the State finds, and makes assurances satisfactory to the Secretary, are reasonable and adequate to meet the costs which must be incurred by efficiently and economically operated facilities in order to provide care and services in conformity with applicable State and Federal laws, regulations, and quality and safety standards and to assure that individuals eligible for medical assistance have reasonable access (taking into account geographic location and reasonable travel time) to inpatient hospital services of adequate quality.... Congress enacted the Boren Amendment with two specific purposes in mind: (1) to provide states with greater flexibility in developing reimbursement plans" }, { "docid": "23247187", "title": "", "text": "Budget Reconciliation Act of 1980, Pub.L. 96-499, § 962(a), 94 Stat. 2650. The Boren Amendment repealed the “reasonable cost” standard of reimbursement existing under the prior law, replacing it with a standard which required reimbursement at rates that “are reasonable and adequate to meet the costs which must be incurred by efficiently and economically operated facilities”. 42 U.S.C. § 1396a(a)(13)(A). As currently formulated, the Boren Amendment provides that a state plan for medical assistance must “provide ... for payment ... of the hospital services, nursing facility services, and services in an intermediate care facility for the mentally retarded provided under the plan through the use of rates (determined in accordance with methods and standards developed by the State ...) which the State finds, and makes assurances satisfactory to the Secretary, are reasonable and adequate to meet the costs which must be incurred by efficiently and economically operated facilities in order to provide care and services in conformity with applicable State and Federal laws, regulations, and quality and safety standards and to assure that individuals eligible for medical assistance have reasonable access (taking into account geographic location and reasonable travel time) to inpatient hospital services of adequate quality____” Id. The Boren Amendment was enacted with two specific purposes in mind: (1) to provide the states with greater flexibility in developing methods of reimbursing skilled nursing facilities, intermediate care facilities, and inpatient hospital services; and (2) to increase the economy and efficiency of all plans. S.Rep. No. 139, 97th Cong., 1st Sess. 478, reprinted in 1981 U.S.Code Cong. & Admin.News 396, 744; see also Colorado Health Care Ass’n v. Colorado Dep’t of Social Servs., 842 F.2d 1158, 1165 (10 Cir.1988). “The flexibility given the States[, however, was] not intended to encourage arbitrary reductions in payment that would adversely affect the quality of care.” S.Rep. No. 139, supra, at 744. The regulations promulgated under the Act require that a state make findings “[w]henever the Medicaid agency makes a change in its methods and standards, but not less often than annually____” 42 C.F.R. § 447.253(b). Pursuant to that regulation, a state must find that" }, { "docid": "23247186", "title": "", "text": "U.S.C. § 1396b(a). The remainder of the costs under the Medicaid Program are borne by state and local governments. The Medicaid reimbursement methodology has undergone a metamorphosis since its enactment in 1965. When enacted, the Act required reimbursement of the “reasonable cost” of in-patient services rendered to Medicaid patients in nursing and intermediate care facilities. In 1972, Congress modified this “reasonable cost” standard in response to a perception that the Secretary exercised too much control over reimbursement rates. See Wilder v. Virginia Hosp. Ass’n, — U.S. —, 110 S.Ct. 2510, 2515 (1990). The new law required states to reimburse “the reasonable cost[s] ... as determined in accordance with methods and standards which shall be developed by the State and reviewed and approved by the Secretary.” Id. (quoting Pub.L. 92-603, § 232(a), 86 Stat. 1329,1410-11 (1972)). Its enactment marked the beginning of congressional efforts to provide the states with greater flexibility to develop their own schemes of reimbursement. This trend continued with the enactment of the Boren Amendment in 1980. 42 U.S.C. § 1396a(a)(13)(A). See Omnibus Budget Reconciliation Act of 1980, Pub.L. 96-499, § 962(a), 94 Stat. 2650. The Boren Amendment repealed the “reasonable cost” standard of reimbursement existing under the prior law, replacing it with a standard which required reimbursement at rates that “are reasonable and adequate to meet the costs which must be incurred by efficiently and economically operated facilities”. 42 U.S.C. § 1396a(a)(13)(A). As currently formulated, the Boren Amendment provides that a state plan for medical assistance must “provide ... for payment ... of the hospital services, nursing facility services, and services in an intermediate care facility for the mentally retarded provided under the plan through the use of rates (determined in accordance with methods and standards developed by the State ...) which the State finds, and makes assurances satisfactory to the Secretary, are reasonable and adequate to meet the costs which must be incurred by efficiently and economically operated facilities in order to provide care and services in conformity with applicable State and Federal laws, regulations, and quality and safety standards and to assure that individuals eligible" }, { "docid": "23247188", "title": "", "text": "for medical assistance have reasonable access (taking into account geographic location and reasonable travel time) to inpatient hospital services of adequate quality____” Id. The Boren Amendment was enacted with two specific purposes in mind: (1) to provide the states with greater flexibility in developing methods of reimbursing skilled nursing facilities, intermediate care facilities, and inpatient hospital services; and (2) to increase the economy and efficiency of all plans. S.Rep. No. 139, 97th Cong., 1st Sess. 478, reprinted in 1981 U.S.Code Cong. & Admin.News 396, 744; see also Colorado Health Care Ass’n v. Colorado Dep’t of Social Servs., 842 F.2d 1158, 1165 (10 Cir.1988). “The flexibility given the States[, however, was] not intended to encourage arbitrary reductions in payment that would adversely affect the quality of care.” S.Rep. No. 139, supra, at 744. The regulations promulgated under the Act require that a state make findings “[w]henever the Medicaid agency makes a change in its methods and standards, but not less often than annually____” 42 C.F.R. § 447.253(b). Pursuant to that regulation, a state must find that “[t]he Medicaid agency pays for inpatient hospital services and long-term care facility services through the use of rates that are reasonable and adequate to meet the costs that must be incurred by efficiently and economically operated providers____” 42 C.F.R. § 447.253(b)(l)(i). (B) Since New York elected to participate in the Medicaid Program, it was required to abide by the Boren Amendment and the regulations promulgated thereunder. Harris v. McRae, 448 U.S. 297, 301 (1980); AMISUB (PSL), Inc. v. Colorado Dep’t of Social Servs., 879 F.2d 789, 794 (10 Cir.1989), cert. denied, 110 S.Ct. 3212 (1990). Article 28 of the New York Public Health Law charges the New York State Department of Health (DOH) with the responsibility for setting Medicaid reimbursement rates for nursing homes. N.Y.Pub.Health Law § 2808 (McKinney 1990). In 1986, apparently in response to the Boren Amendment, New York set its Medicaid reimbursement rates prospectively adjusted for inflation, based on historic 1983 costs incurred by nursing homes throughout the state. This reimbursement methodology is set forth in subpart 86-2 of the Commissioner’s Administrative" }, { "docid": "1398357", "title": "", "text": "rate for NFs in Oklahoma does not meet federal requirements pertaining to establishment of such rates.” In Paragraph 29(c), the Complaint alleges that “[rjates must be determined in accordance with specified, comprehensive methods and standards (42 C.F.R. § 447.252(b)).” The Court finds that the Complaint fairly places Defendants on notice of the Plaintiffs’ claim of violation of Section 447.252(b). . Oklahoma’s methods and standards for setting payment rates are promulgated in Attachment 4.19-D to the state’s Medicaid Plan, in a document entitled “Methods and Standards for Establishing Payment Rates for Nursing Facilities.” The Methods and Standards document specifies that the state’s reimbursement rate for nursing facilities will be statewide and prospective, and will be computed “at least annually.” The rate-setting agency, the Human Services Commission, is directed to take into account “information obtained from public meetings, cost reports and negotiations with recognized representatives of the nursing home industry.” The Commission is directed to consider “[r]ecognized economic factors”, including “noted trends in national and state Consumer Price Indices and factors such as prevailing salary levels of health care professionals and changes in the law governing minimum wage levels.” No guidance is given with respect to how those economic factors will be “considered”. Aside from establishing how often and by whom rates will be set, Oklahoma’s Methods and Standards document adds nothing of substance, but merely restates the Boren Amendment’s requirement that the state’s Medicaid Plan “take into account the costs ... of services necessary to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident,” and that the State’s reimbursement rates be “reasonable and adequate to meet the costs which must be incurred by efficiently and economically operated facilities.” Defendants argue that because the State Plan has been approved by the governing federal agency, the Health Care Financing Administration, it is therefore sufficiently comprehensive. Defendants would have the Court interpret Section 447.252(b) as requiring only that the state’s Medicaid Plan “specify [rate-setting methodology] comprehensively” enough to enable the federal Health Care Financing Administration (“HCFA”) to . pass upon the Plan. The Defendants argue that while Section 447.252(b)" }, { "docid": "12340190", "title": "", "text": "Boren Amendment deleted the provision requiring States to reimburse hospitals on a reasonable cost basis and substituted a provision requiring States to reimburse hospitals at rates “that are reasonable and adequate to meet the cost which must be incurred by efficiently and economically operated facilities in order to meet applicable laws and quality and safety standards.” S.Rep. No. 97-139, p. 478 (1981), U.S.Code Cong. & Admin.News 1981, pp. 396, 744. Thus, while Congress affirmed its desire that state reimbursement rates be “reasonable,” it gave States greater flexibility in calculating those reasonable rates. Wilder, — U.S. at -, 110 S.Ct. at 2515-16, 110 L.Ed.2d at 465. Congress intended to afford States “ ‘greater latitude in developing and implementing alternative reimbursement methodologies that promote the efficient and economical delivery of such services.’ ” Id. (citing H.R.Rep. No. 97-158, Vol. 2, p. 293 (1981)). Congress informed States that they were free to adopt, for example, statewide or classwide rates, rates based on prospective costs, or payment plans that included incentives to encourage efficient operations. Id. (citing H.R.Rep. No. 97-158, Vol. 2, p. 292-93 (1981)). Since the Boren Amendment was enacted, most States have abandoned retrospective reimbursement plans that paid providers for the reasonable cost of the services actually provided, and have adopted plans that are prospective in nature, paying hospitals in accordance with the State’s determination of what Medicaid care should cost. The Washington Medicaid Plan in this case is a prospective plan. 7. The Boren Amendment, codified at 42 U.S.C. § 1396a(a)(13)(A), provides that a State must reimburse providers according to rates that it “finds, and makes assurances to the Secretary, are reasonable and adequate to meet the costs which must be incurred by efficiently and economically operated facilities in order to provide care and services in conformity with applicable State and Federal laws, regulations, and quality and safety standards.” The State must also find, and make assurances satisfactory to the Secretary, that individuals have “reasonable access” to facilities of “adequate quality.” 8. The Medicaid Act does not define the terms “reasonable and adequate,” “costs which must be incurred,” or “efficiently and" }, { "docid": "2751514", "title": "", "text": "which in its current form requires a state plan for medical assistance to provide (Section 1396a(a)(13)(A)): for payment ... of the hospital services, nursing facility services, and services in an intermediate care facility for the mentally retarded provided under the plan through the use of rates (determined in accordance with methods and standards developed by the State [here the statute sets out factors to be taken into account in developing those methods and standards] ) which the State finds, and makes assurances satisfactory to the Secretary, are reasonable and adequate to meet the costs which must be incurred by efficiently and economically operated facilities in order to provide care and services in conformity with applicable State and Federal laws, regulations, and quality and safety standards and to assure that individuals eligible for medical assistance have reasonable access (taking into account geographic location and reasonable travel time) to inpatient hospital services of adequate quality.... Congress enacted the Boren Amendment with two specific purposes in mind: (1) to provide states with greater flexibility in developing reimbursement plans and (2) to reduce Medicaid costs by allowing states to develop plans that would encourage greater efficiency (Pinnacle Nursing Home v. Axelrod, 928 F.2d 1306, 1309-10 (2d Cir. 1991); Wilder, 110 S.Ct. at 2515-16, citing 2 H.R.Rep. No. 158 at 292-93, S.Rep. No. 471, 96th Cong., 1st Sess. 28-29 (1979), and S.Rep. No. 139 at 478). Congress was clear, however, that “[t]he flexibility given states [was] not intended to encourage arbitrary reductions in payment that would adversely affect the quality of care” (S.Rep. No. 139 at 478). Thus Congress stressed adequacy of payments so long as the providers of services were efficient (IHCA I, 719 F.Supp. at 1421). Parties IHCA is an Illinois not-for-profit corporation whose membership comprises 270 not-for-profit and proprietary Illinois nursing homes, most of whom participate in the Illinois Medicaid program. Heartland is an Illinois not-for-profit corporation and a member of IHCA. Heartland has participated as a provider of nursing home services in the Medicaid program since 1964 (P.Compl. and D.Ans. ¶¶ 4, 5). Bradley, as Director of IDPA, is responsible for" }, { "docid": "13034627", "title": "", "text": "Hosp. Ass’n. v. Heckler, 701 F.2d 511, 516 (5th Cir.1983). “So long as the specific requirements of the law are met, the Court must defer to the agency’s exercise of discretion unless it acts arbitrarily or capriciously.” Mary Washington Hosp., Inc. v. Fisher, 635 F.Supp. 891, 896 (E.D.Va.1985). The federal law at issue here, 42 U.S.C. section 1396a(a)(13)(A), known as the Boren Amendment, is part of the Omnibus Budget Reconciliation Act of 1981 (OBRA). Congress’ purposes in passing the Boren Amendment were two-fold: “first, that the states set their own reimbursement rates without stifling and expensive federal oversight of the methodology used; and, second that Medicaid expenses be reduced by allowing the states to develop payment systems which would encourage efficiency.” Colorado Health Care Ass’n, 842 F.2d at 1165. The Boren Amendment provides in pertinent part: A State plan for medical assistance must— ... provide— ... for payment ... of the hospital, skilled nursing facility, and intermediate care facility services provided under the plan through the use of rates (determined in accordance with methods and standards developed by the State) and which, in the case of hospitals, take into account the situation of hospitals which serve a disproportionate number of low income patients with special needs and provide, in the case of hospital patients receiving services at an inappropriate level of care ... which the State finds, and makes assurances satisfactory to the Secretary, are reasonable and adequate to meet the costs which must be incurred by efficiently and economically operated facilities in order to provide care and services in conformity with applicable State and Federal laws, regulations, and quality and safety standards and to assure that individuals eligible for medical assistance have reasonable access (taking into account geographic location and reasonable travel time) to inpatient hospital services of adequate quality; and such State makes further assurances, satisfactory to the Secretary, for the filing of uniform cost reports by each hospital, skilled nursing facility, and intermediate care facility and periodic audits by the State of such reports; .... 42 U.S.C. § 1396a(a)(13)(A). The Health Care Financing Administration (HCFA) charged with" }, { "docid": "16571152", "title": "", "text": "U.S. Department of Health and Human Services through HCFA. 42 U.S.C. § 1396a. Under the Boren Amendment, the state plan must provide for payment to nursing homes through the use of Medicaid reimbursement rates that: the State finds, and makes assurances satisfactory to the Secretary [of Health and Human Services] are reasonable and adequate to meet the costs which must be incurred by efficiently and economically operated facilities in order to provide care and services in conformity with applicable State and Federal laws, regulations and quality and safety standards .... 42 U.S.C. § 1396a(a)(13)(A). In its implementing regulations, HCFA has set forth the specific findings that a state Medicaid agency must make and the assurances that must be submitted to HCFA for approval of a state plan. 42 C.F.R. § 447.253. 25. The Boren Amendment to Title XIX was enacted as part of the Omnibus Budget Reconciliation Act of 1980, Pub.L. No. 96-499, § 962(a), 94 Stat. 2599, 2650 (1980) (OBRA). The purpose behind OBRA was “to reduce the federal budget [and the Boren Amendment itself] aims to promote this purpose by implementing a more cost-efficient Medicaid scheme.” Virginia Hosp. Ass’n v. Baliles, 868 F.2d 653, 659 (4th Cir.), cert. granted, — U.S.-, 110 S.Ct. 49, 107 L.Ed.2d 18 (1989). In establishing the Boren standard for Medicaid reimbursement, Congress intended to increase considerably the flexibility of state agencies to develop payment systems that encourage cost containment and efficiency. Colorado Health Care, 842 F.2d at 1165. Congress specifically enacted the Amendment in order to reduce federal oversight and allow states to manage the inevitable budgetary constraints resulting from reduced federal funding in the 1980s. Wisconsin Hosp. Ass’n v. Reivitz, 733 F.2d 1226, 1228 (7th Cir.1984); Wilmac Corp. v. Heckler, 633 F.Supp. 1000, 1007 (E.D.Pa.1986). The Amendment represents a broad delegation of authority and discretion to the state agencies that oversee Medicaid reimbursement. Hoodkroft Convalescent Center v. New Hampshire Div. of Human Servs., 879 F.2d 968, 972, 975 (1st Cir.1989). 26. Medicaid payment rates are “reasonable and adequate” within the meaning of the Boren Amendment if they fall within a “zone or" }, { "docid": "16571151", "title": "", "text": "The department shall select an index of cost increase relevant to the nursing and related services cost area. In the absence of a more representative index, the department shall use the medical care component index as maintained by the United States bureau of labor statistics. 22. The Department has interpreted this statute as requiring the selection of an existing index rather than requiring the Department to develop its own index, as plaintiffs contend. This is a reasonable interpretation of the statute by the agency committed to administering it, and the Court will not disturb that interpretation. 23. There is no evidence that DSHS acted arbitrarily, capriciously, or in violation of law in this matter, and the Department is entitled to have this claim dismissed pursuant to Rule 41(b). III. BOREN AMENDMENT ISSUES 24. Before addressing plaintiffs’ specific claims, it is necessary to set forth some background on the statutory and regulatory framework. Each state participating in the Medicaid program is required to have a state plan that must be approved by the Secretary of the U.S. Department of Health and Human Services through HCFA. 42 U.S.C. § 1396a. Under the Boren Amendment, the state plan must provide for payment to nursing homes through the use of Medicaid reimbursement rates that: the State finds, and makes assurances satisfactory to the Secretary [of Health and Human Services] are reasonable and adequate to meet the costs which must be incurred by efficiently and economically operated facilities in order to provide care and services in conformity with applicable State and Federal laws, regulations and quality and safety standards .... 42 U.S.C. § 1396a(a)(13)(A). In its implementing regulations, HCFA has set forth the specific findings that a state Medicaid agency must make and the assurances that must be submitted to HCFA for approval of a state plan. 42 C.F.R. § 447.253. 25. The Boren Amendment to Title XIX was enacted as part of the Omnibus Budget Reconciliation Act of 1980, Pub.L. No. 96-499, § 962(a), 94 Stat. 2599, 2650 (1980) (OBRA). The purpose behind OBRA was “to reduce the federal budget [and the Boren Amendment" }, { "docid": "1398366", "title": "", "text": "Cir.1989), the plaintiffs challenged Colorado’s system for Medicaid reimbursement of inpa tient hospital services. The district court granted judgment in favor of the defendants, holding that the findings of Colorado’s Medicaid agency were not arbitrary and capricious. The Tenth Circuit reversed, holding that if the state agency had met the requirements of federal law, the federal courts would defer to the state agency’s discretion unless the agency had acted arbitrarily or capriciously. 879 F.2d at 795. Before deferring to the state agency, courts must first inquire whether the state agency had satisfied the requirements of federal law. Id. The Tenth Circuit in AMISUB, supra, interpreted the applicable provisions of the Boren Amendment as requiring the state Medicaid agency, at a minimum, to make findings which identify and determine: (1) efficiently and economically operated hospitals; (2) the costs which must be incurred by such hospitals; and (3) payment rates which are reasonable and adequate to meet the reasonable costs of such hospitals. AMI-SUB, 879 F.2d at 796. In other words, the state must make findings which establish a nexus between the costs of operating efficient and economic nursing facilities and the state’s reimbursement rate. Pinnacle Nursing Home v. Axelrod, 928 F.2d 1306 (2d Cir.1991), citing AMISUB, supra, 879 F.2d at 796. Consistency between the facilities’ expenditures and the amount appropriated by the state legislature does not establish this nexus. AMISUB, 879 F.2d at 796, 797. Moreover, approval of the plan by the HCFA does not establish that the state has met the minimum requirements of the Boren Amendment. Id. Of course, the Tenth Circuit’s decision in AMISUB, supra, dealt with hospital reimbursement rates, rather than reimbursement rates for long-term nursing facilities. In the case of nursing facilities, the state’s findings and assurances must take into account the costs of services required to maintain the highest practicable physical, mental, and psychosocial well-being of each-resident eligible for Medicaid benefits. Title 42 U.S.C. § 1396a(a)(13)(A). B. The Findings and Assurances Made In Support of Oklahoma’s Fiscal Year 1992 Rate In this case, the Defendants argue that they have made the required findings and assurances" }, { "docid": "18823912", "title": "", "text": "codified as 42 U.S.C. § 1396a(a)(13)(A) (1988). Prior to the adoption of the Boren Amendment, the Medicaid Act required payment to nursing homes “on a reasonable cost related basis.” 42 U.S.C. § 1396a(a)(13)(E) (1976). This standard obligated the states to pay nursing homes for whatever reasonable costs the facilities incurred in providing care to Medicaid recipients. The Boren Amendment was enacted as a part of the Omnibus Reconciliation Act of 1980, Pub.L. No. 96-499, § 8962(a), 94 Stat. 2599 (1980). This was in response to concerns that the prior standard for reimbursement under Medicaid did not give sufficient authority to the states to control the continuing increase in nursing home costs. See Senate Comm, on the Budget, 96th Cong., 2d Sess., Reconciliation (S. 2885) and Special Rules for Its Consideration 94-95 (Comm.Print 1980); West Virginia Univ. Hosps., Inc. v. Casey, 885 F.2d 11, 23 (3d Cir.1989), cert. denied, 496 U.S. 936, 110 S.Ct. 3213, 110 L.Ed.2d 661 (1990). The change was from reimbursement of all reasonable costs to only those costs that “must be incurred by efficiently and economically operated facilities” to provide the care that is required under federal and state quality standards. This permitted states to alter their plans for the purpose of encouraging providers to contain the costs of health care services and allowed states to accommodate the reductions in the amount of funds that the federal government would pay to the states under the Medicaid program. Wisconsin Hosp. Ass’n v. Reivitz, 733 F.2d 1226, 1228 (7th Cir.1984). The Boren Amendment was designed to give states greater flexibility in calculating reasonable costs and in containing the continuing escalation of those costs. The Boren Amendment allows the states to adopt a “prospective” rate-setting system, which sets out a predetermined rate that the provider will receive and, thus, encourages the provider to meet that rate or to absorb the loss if the provider’s actual costs exceed that rate. The State of Washington has adopted a rather complex and detailed prospective rate-setting system. This is detailed in the district court’s opinion. 744 F.Supp. at 1511-13. Each state participating in the" } ]

[ { "docid": "20964004", "title": "", "text": "petition in connection with the assessment for the 1994/95 tax year was subsequently dismissed by the state court as untimely does not now entitle the Debtor to resurrect the issues of amount and legality of the assessment for consideration by this Court. Unlike the situation in Ledgemere, it is clear that New York law does provide the property owner with a full and fair opportunity for a hearing by the Assessment Board. Therefore, the Court finds that the assessment for the 1994/95 tax year was contested and adjudicated by a “judicial or administrative tribunal of competent jurisdiction.” Accordingly, the Court is without authority to review it. Having reached this conclusion, the Court must still address whether to make a determination of the Debtor’s tax liability for 1993 since the parties agree that it was not previously contested. The Court’s authority to do so is discretionary. See 499 W. Warren Street, 143 B.R. at 329 (citations omitted). “Congress never intended to create a second tax adjudication system” in enacting Code § 505. In re D'Alessio, 181 B.R. 756, 760 (Bankr.S.D.N.Y.1995). Therefore, it is encumbent upon the Court to assure itself that the legislative purpose for drafting this provision, namely to protect the interests of both debtors and creditors, see id., is met. Creditors are entitled to protection from the “dissipation of an estate’s assets” in the event that the debtor failed to contest the legality and amount of taxes assessed against it. Id. Having the bankruptcy court adjudicate the matter also may afford an alternative forum for proceedings that might otherwise delay the orderly administration of the case and distribution to the debtor’s creditors. The courts generally consider a number of factors, including the complexity of the tax issue, the need to administer the bankruptcy case in an expeditious fashion, the burden on the bankruptcy court’s docket, the length of time necessary to conduct the hearing and to render a decision thereafter, the asset and liability structure of the debtor and the potential prejudice to the debtor and the taxing authority. See In re D’Alessio, 181 B.R. 756, 759-60 (Bankr.S.D.N.Y.1995) (citations" } ]

[ { "docid": "5736743", "title": "", "text": "had interests in the loss-carryback refunds only by virtue of having paid taxes the previous two years on profits offset by a loss in the third year. Drawing an analogy to the decision in Segal, the bankruptcy court found that, as the Debtors had not filed 1996 tax returns prior to filing théir respective petitions for bankruptcy, no portion of the EICs accrued prior to the bankruptcy filings. However, the Supreme Court later held an individual need not necessarily have paid any tax to be eligible for EICs. Sorenson v. Secretary of the Treasury of the United States, 475 U.S. 851, 106 S.Ct. 1600, 89 L.Ed.2d 855 (1986). The bankruptcy court next looked to Searles for support of the “fresh start” maxim put forth by the Court in Segal. The district court held a qualifying individual may receive EICs only in the year following a year where the individual earns taxable income. In a situation where the individual files for bankruptcy, the court reasoned that EICs are a form of legislated social welfare, providing the individual with a “fresh start” necessary for the bankrupt in the post-bankruptcy year. Searles, 445 F.Supp. at 753. The bankruptcy court interpreted the holding to conclude that EICs are “refunds” not related to any property interest of the Debtors at the time of bankruptcy, and accruing only at the conclusion of the tax year. Finding the “fresh start” maxim an unstated though fundamental goal of the Bankruptcy Code, the bankruptcy court found EICs are “expectancies” accruable at the end of the tax year and payable in the year .following bankruptcy if the Debtors meet certain qualifying standards. The bankruptcy court’s reliance upon these conclusions is misplaced. The Bankruptcy Act was repealed in favor of the modern Bankruptcy Code by the Bankruptcy Reform Act of 1978. Though the “fresh start” maxim rising from section 70a(5) of the Act may have been a fundamental consideration in the formation of the Code, we recognize the maxim to be a limited, and no longer a completely unencumbered, guiding principle. Unlike the Act, the Code requires that all property of" }, { "docid": "17034409", "title": "", "text": "object in the bankruptcy proceeding. To so hold would make the ability of the IRS to remain outside bankruptcy as a tax debt creditor as meaningless as\" if we applied res judicata. The IRS’s ability to remain outside the bankruptcy proceeding is a product of Congress’s policy decision to elevate the goal of revenue collection above the debt- or’s interest in a fresh start after bankruptcy. See Fein, 22 F.3d at 633 (“Congress consciously opted to place a higher priority on revenue collection than on debtor rehabilitation or ensuring a ‘fresh start.’ ”). The responsibility for Taylor’s predicament lies only with Taylor and his counsel because they could have chosen to bring the IRS into the bankruptcy proceeding by the proof-of-claim process or through a § 505 motion, which allows the debtor to attenuate the potential harshness of the congressional policy decision to place revenue collection above the debtor’s fresh start. We do not hold that a bankruptcy court must have distinct proceedings in order to determine a tax debt or that the court cannot combine a § 505 hearing and a plan confirmation hearing or address a tax debt in another manner. See Cook, No. 93-7459, slip op. at 5 (noting that a combined hearing would be acceptable and that surely creative bankruptcy courts have properly used other methods to efficiently deal with the issues before the court). Rather, we hold that the confirmation of a plan does not itself invoke the tax determination process. B. Estoppel Taylor alternatively argues that the IRS should be estopped from collecting on the debt because he relied upon the IRS’s failure to file a claim in binding himself to the Plan. In order to establish estoppel against the government in this circuit, a party must prove affirmative misconduct by the government as well as the four traditional elements of estoppel. United States v. Bloom, 112 F.3d 200, 205 (5th Cir.1997). The traditional elements of estoppel are “(1) that the party to be estopped was aware of the facts, and (2) intended his act or omission to be acted upon; (3) that the" }, { "docid": "2881781", "title": "", "text": "and penalties Claxton owed for the years 1985 through 1995 and the unpaid tax for the years 1993 through 1995, Claxton requested and received an installment payment plan from the IRS. 20. After making some installment payments, Claxton stopped making further payments to the IRS. 21. Claxton knew he had a duty to file tax returns timely and pay all taxes due for each of the years in issue here. (Trial Tr., 66-67, July 21, 2005). 22. The primary reason that Claxton did not file income tax returns on time was fear of possible criminal consequences. (Trial Tr., 67, July 21, 2005). 23. In 1987, a year in which Claxton did not file timely tax returns, he purchased a home for which he paid approximately $19,000 as a down payment. (Trial Tr., 131-132, July 21, 2005). He generated the funds necessary for the down payment from his businesses. Id. 24. On Debtor’s Statement of Financial Affairs, signed under the penalty of perjury, Debtor did not list any gifts or charitable contributions made within one year immediately preceding the commencement of his bankruptcy case. (Trial Tr., 120, July 21, 2005). On Debtor’s 1999 tax return, however, he indicated on Schedule A, Itemized Deductions, that he made $15,552 in charitable contributions. (Def.Ex.8). On Debtor’s 2000 tax return, he indicated on Schedule A, Itemized Deductions, that he made $10,369 in charitable contributions. (Def.Ex.9). 25. Additional facts set forth in the Conclusions of Law will stand as additional Findings of Fact. CONCLUSIONS OP LAW JURISDICTION Jurisdiction lies under 28 U.S.C. § 1334(b). This is a core proceeding under 28 U.S.C. § 157(b)(2)(I). This proceeding is referred here by the District Court under the standing referral procedure in District Court Internal Procedure 15(a). Venue is proper in this District under 28 U.S.C. § 1409(a). DISCUSSION In a Chapter 7 discharge, generally all liabilities of the debtor arising before the filing of a bankruptcy petition are discharged. 11 U.S.C. § 727(b). Congress, however, intended that the fresh start provided by the bankruptcy discharge would apply only to the “honest but unfortunate debtor.” In re Birkenstock, 87" }, { "docid": "20744744", "title": "", "text": "in his 11 U.S.C. section 505 Adversary proceeding.” Subsequently, Stephen instituted a second adversary proceeding in the bankruptcy court entitled “Stephen Lewis Smith v. United States,” adv. proc. No. 90-392. Stephen requested that the bankruptcy court determine his 1986 and 1987 Federal income tax liabilities pursuant to 11 U.S.C. section 505(a). The Government, in turn, filed a motion requesting that the bankruptcy court abstain from hearing the adversary complaint. By order dated November 9, 1990, the bankruptcy court granted the Government’s motion to abstain from determining Stephen’s personal liability for the Federal income taxes in dispute. In particular, the bankruptcy court concluded that both the debtor and the estate would be better served if the court abstained from exercising jurisdiction with respect to Stephen’s tax liabilities. The bankruptcy court emphasized: First, as noted earlier, the Debtor and his wife themselves have now pending before the tax court, Petitions seeking a determination of their tax liability. Second, in the present instance, there are no funds available which could be distributed as surplus to the Debtor under the scheme of distribution provided under section 726 of the Bankruptcy Code. Third, in the present instance, the Debtor waived his right to a discharge, therefore, any determination by this Court could not provide.any material benefit to the Debtor, and any favorable ruling by this Court would not assist him to have a fresh start in life. Based on the foregoing, the bankruptcy court ordered that the motion to abstain filed by the Government would be treated as a motion to defer and to stay proceedings and be granted as such. The bankruptcy court further ordered that “after the Tax Court has determined the liability vel non of this Debtor, this Court will enter an appropriate order concerning the claim filed in this Chapter 7 case by the United States of America.” Discussion As a preliminary matter, we must decide whether this Court has jurisdiction over the petition filed by Stephen. A jurisdictional issue can be raised by either party or the Court sua sponte at any stage of the proceedings. Normac, Inc. & Normac" }, { "docid": "4563507", "title": "", "text": "a debtor’s delinquency is relevant to determining whether the debtor has filed a return. The very essence of our system of taxation lies in the self-reporting and self-assessment of one’s tax liabilities. Timely filed federal income tax returns are the mainstay of that system. A reporting form filed after the IRS has completed the burdensome process of assessment without any assistance from the taxpayer does not serve the basic purpose of tax returns: to self-report to the IRS sufficient information that the returns may be readily processed and verified. Simply put, to belatedly accept responsibility for one’s tax liabilities, only when the IRS has left one with no other choice, is hardly how honest and reasonable taxpayers attempt to comply with the tax code. In response to the debtor’s argument that his honesty and reasonableness were relevant only to § 523(a)(1)(C), which ex cepts taxes with respect to which the debt- or has made a fraudulent return or willfully attempted to evade or defeat such tax, the Fourth Circuit replied: Section 523(a)(1)(B)(i)’s filing requirement governs debtors precisely like Mo-roney: debtors whose inaction or inaccuracy, even if not sufficiently malodorous to be deemed fraudulent or evasive, disqualifies them from the fresh start that bankruptcy provides. The Bankruptcy Code allows honest debtors to discharge the taxes they cannot pay. It does not permit them to discharge the obligation owed by all taxpayers, whatever their financial condition, to file timely returns. Debtors like Moroney cannot seek the safe haven of bankruptcy by failing to file tax returns, waiting to see if the IRS assesses taxes on its own, and then submitting statements long after the IRS has been put to its costly proof. The Fourth Circuit held the debtor had failed to file “a return in any meaningful sense of that word,” and therefore his taxes could not be discharged. The Beard test has also been employed by two other circuit courts to reach the same results in similar situations. However, when the United States Court of Appeals for the Eighth Circuit (“Eighth Circuit”) was presented with this issue on analogous facts, it" }, { "docid": "23553804", "title": "", "text": "debtors and the Internal Revenue Service. For these obvious reasons, the trustee has no interest in the matter and has not sought any relief. The principal policy reasons for giving this court the authority to determine this dispute are not present in this case. The Millsaps amended their complaint on September 1, 1987, to litigate the amount of the 1982 taxes that were assessed almost four and one-half years earlier. There is no evidence on this record that the debtors made any effort earlier to contest the tax liability in the appropriate forum in a timely fashion. Given this, it appears that the Millsaps are merely taking advantage of what may look to them to be a renewed opportunity to contest the 1982 tax obligations. The court is persuaded that these facts justify this court’s discretionary abstention under the interest of justice standard of 28 U.S.C. § 1334(c)(1). The Millsaps have had ample opportunity to contest the amount of the 1982 taxes through the Service’s administrative procedures and in their choice of three courts — the United States tax court, the United States court of claims, and the United States district court. This record fails to reflect that they took any of these steps within the time periods prescribed by law for them to have done so. After thereby sitting on their rights, the Millsaps find themselves precluded by general law from disputing the amount of taxes the Service contends they owe for 1982. To remedy this situation, they invoke this court’s Section 505(a)(1) jurisdiction to determine the amount of the tax. Were this court to respond to the Mill-saps’ tardy call by exercising its jurisdiction, no bankruptcy interest would be furthered. As the court has already pointed out, the estate and creditors are not affected by this matter. Although it is true that an exercise of this jurisdiction would benefit the debtors and further the “fresh start” policy of the Bankruptcy Code, that interest would only be served at the expense of the orderly enforcement of the internal revenue laws. Unless this court abstains in these unusual circumstances, every" }, { "docid": "18726335", "title": "", "text": "discussed above, section 505 in this respect is the same as section 2a(2A) of the prior Act. Under the Act, courts adjudicated the legality and amount of a debtor’s unpaid taxes even though the debtor had not contested the taxes under state procedure and the time for doing so had expired. Courts saw as the statute’s rationale the belief that creditors should not be prejudiced by a debt- or’s failure to contest tax claims, which can consume an estate because they are secured or enjoy priority. In similar fashion, like Ledgemere, decisions under the Bankruptcy Code construe section 505 as a grant of jurisdiction for adjudication of unpaid taxes even though the debtor has failed to contest the taxes elsewhere and the state limitations period has expired. I nevertheless abstain from resolving the dispute over 1992 taxes. The Debtor’s plan of reorganization has already been confirmed. It provides for a 100% dividend to general creditors, payable over five years, without interest until the plan’s fourth anniversary. Funds can become payable ahead of this schedule to the extent there is “excess cash flow,” as defined in the plan. The Debtor makes no attempt to demonstrate the likelihood of an “excess cash flow” becoming a reality. Resolution of these 1992 tax issues, in any event, would have no effect in that regard. The taxes are comparatively small in relation to the Debtor’s over-all operations. Even if they were not and I were to rule in the Debtor’s favor, an appeal by the municipalities would be virtually certain, so that the Debtor’s funds during the next few years would not be affected. In sum, the potential benefit to the Debt- or’s creditors from these proceedings is slight or nonexistent. Abstention is thus justified. RATE OF INTEREST ON UNPAID TAXES Finally, the municipalities object to the 4.55% rate of interest payable on unpaid taxes under a provision of the Debtor’s confirmed plan. They contend they are entitled to the statutory rate of 16%. The Debtor asserts, and the municipalities do not deny, that they were given notice of plan confirmation and failed to object" }, { "docid": "18726334", "title": "", "text": "the results in the St, Johns decisions. I came to the opposite conclusion in In re Ledgemere Land Corp., which largely involved unpaid taxes. In there I held that the court has jurisdiction to adjudicate tax refund claims, but I did not examine the legislative history discussed here. I will therefore no longer follow the refund aspect of the Ledgemere decision. The policy behind the statute’s distinction between paid and unpaid taxes seems obvious. As asserted in the briefs filed here in support of the motion, recovery of taxes paid many years before raises havoc with the financial stability of a city or town, particularly a small one. A municipality can take appropriate action to collect unpaid taxes. It obviously cannot spend the money before collection. Once the money is in the coffers, however, it soon goes out. UNPAID 1992 TAXES The court’s jurisdiction is quite different with respect to the unpaid 1992 taxes. Unlike its provision concerning tax refund claims, section 505 contains no language showing deference to state procedure on unpaid taxes. As discussed above, section 505 in this respect is the same as section 2a(2A) of the prior Act. Under the Act, courts adjudicated the legality and amount of a debtor’s unpaid taxes even though the debtor had not contested the taxes under state procedure and the time for doing so had expired. Courts saw as the statute’s rationale the belief that creditors should not be prejudiced by a debt- or’s failure to contest tax claims, which can consume an estate because they are secured or enjoy priority. In similar fashion, like Ledgemere, decisions under the Bankruptcy Code construe section 505 as a grant of jurisdiction for adjudication of unpaid taxes even though the debtor has failed to contest the taxes elsewhere and the state limitations period has expired. I nevertheless abstain from resolving the dispute over 1992 taxes. The Debtor’s plan of reorganization has already been confirmed. It provides for a 100% dividend to general creditors, payable over five years, without interest until the plan’s fourth anniversary. Funds can become payable ahead of this schedule to" }, { "docid": "23003851", "title": "", "text": "All taxes accruing after January 1, 1977 are being paid on a current basis. Of the $523 million total, approximately $300 million is attributable to properties which were conveyed to ConRail free and clear of all liens and encumbrances; the balance of $223 million represents taxes assessed against retained assets. (In discussing the securities distributed to tax claimants, Section II-B, the total claim there referred to of $451.5 million was net of claims satisfied under the Alternative Settlement Program.) These taxes are imposed under the local laws of the 17 American jurisdictions in which the Debtor conducted rail operations. These laws vary greatly, and there are corresponding variations in the precise characteristics of various tax claims. The totals set forth above include general corporate taxes and similar levies, as well as real estate taxes. Real estate taxes may be levied on a parcel-by-parcel basis, countywide, or even statewide. In some jurisdictions, they represent a general in personam claim against the Debtor, as well as a charge against specific property, whereas in other jurisdictions they are solely in rem. Some jurisdictions exempt transportation property, others do not. There may also be procedural differences affecting such matters as whether or not a particular tax lien has been perfected. For purposes of discussion, all of these variations may be ignored. It will be assumed that all claims for taxes related to the pre-bankruptcy period constitute valid liens against all of the physical assets of the Debtor, and that this lien is superior to the claims of general creditors, and at least arguably superior to the claims of all other pre-bankruptcy lien-holders except the Federal Government. The post-bankruptcy taxes, on the other hand, are claims of administration. As such, they have priority over all pre-bank-ruptcy claims. The very existence of unpaid administrative claims of this magnitude ($449.7 million in unpaid taxes, plus about $350 million in unpaid operating expenses, represented by the Government’s § 211(h) claims) is striking proof of the uniqueness of this reorganization, and of the corresponding novelty of the problems involved. In ordinary corporate reorganizations, the continued operation of the Debtor" }, { "docid": "10201149", "title": "", "text": "obvious. The Debtor here has significant financial problems, substantial real debt, many employees with jobs at stake and assets whose fair market values are in all likelihood far in excess of their liquidation values. In re Nancant, Inc., 8 B.R. 1005 (Bankr.D.Mass.1981), is distinguishable for many of the same reasons. There the debtor’s principal assets were vacant buildings which had been formerly occupied by a school. Except for one nominal unsecured debt, its only indebtedness consisted of two real estate mortgages. It had no disclosed plan of reorganization, formal or informal. The reason that it filed a Chapter 11 petition was to invoke the aid of the bankruptcy court in its dispute over real estate taxes with the local town. In bankruptcy, it could contest the tax debt without first paying the tax claimed. The procedure outside of bankruptcy required the debtor to pay the tax before contesting it. The court dismissed the case under § 1112(b) because of the near absence of unsecured debt, the lack of any ongoing operations or a reorganization plan and the attempted use of the bankruptcy court to litigate tax matters in such a vacuum. It was careful to observe, however, that dismissal would not necessarily be required in all cases where the primary goal of the filing was resolution of a tax liability. Nancant, 8 B.R. at 1009-10. In re Washington Funding Corporation, 13 B.R. 216 (Bankr.E.D.N.Y.1981), was a similar case under the old Act which prohibited use of Chapter 11 for the adjudication of real estate taxes by an entity holding just one parcel of real estate and operating no business. The debtor in In re Century City, Inc., 8 B.R. 25 (Bankr.D.N.J.1980), was another defunct entity with virtually no creditors. It did not even have record title to the real estate it sought to develop. Its Chapter 11 Proceeding, which had been instituted primarily as a vehicle to recapture the real estate, was dismissed by the court because of lack of economic substance. For the reasons stated, none of these decisions has application here. V. Termination of Automatic Stay Mrs. Dovydenas" }, { "docid": "5736744", "title": "", "text": "individual with a “fresh start” necessary for the bankrupt in the post-bankruptcy year. Searles, 445 F.Supp. at 753. The bankruptcy court interpreted the holding to conclude that EICs are “refunds” not related to any property interest of the Debtors at the time of bankruptcy, and accruing only at the conclusion of the tax year. Finding the “fresh start” maxim an unstated though fundamental goal of the Bankruptcy Code, the bankruptcy court found EICs are “expectancies” accruable at the end of the tax year and payable in the year .following bankruptcy if the Debtors meet certain qualifying standards. The bankruptcy court’s reliance upon these conclusions is misplaced. The Bankruptcy Act was repealed in favor of the modern Bankruptcy Code by the Bankruptcy Reform Act of 1978. Though the “fresh start” maxim rising from section 70a(5) of the Act may have been a fundamental consideration in the formation of the Code, we recognize the maxim to be a limited, and no longer a completely unencumbered, guiding principle. Unlike the Act, the Code requires that all property of the debtor, whether or not exempt, be included in the bankruptcy estate, mandating that an estate in bankruptcy comprise “all legal or equitable interests of the debtor in property as of the eommencemént of the case.” 11 U.S.C. § 541(a)(1) (1994). Legislative history indicates section 541 is intended to be given a broad definition to include “all kinds of property, including tangible or intangible property, causes of action and all other forms of property specified in section 70a of the Bankruptcy Act.... [I]t includes as property of the estate all property of the debtor, even that needed for a fresh start.” H.R.Rep. No. 95-595, at 367 (1977). Any conclusion that EICs are necessary or mandatory for a “fresh start” may be reasonably inferred under the Act, but is incorrect in light of the Code. EICs are available to a limited number of taxpayers based on earnings and other criteria such as age, residency, and dependent status. 26 U.S.C. § 32 (1994). The Omnibus Budget Reconciliation Act of 1981 amended the Social Security Act by adding" }, { "docid": "19030543", "title": "", "text": "the priority taxes of $8,219.78 would be non-dischargeable in bankruptcy. A student loan to Egger would also be non-dis-chargeable, and there is considerable uncertainty as to whether there might be dis-chargeability problems on some 17 bad checks and on some 37 mechanics lien claims upon which there may be a contention that the debtor fraudulently obtained construction funds or lien releases. Egger lists as his property a pickup truck, a Mercedes automobile, household furniture and personal effects, and tools of his construction trade. Egger proposes to pay his tax obligation in the amount of $8,219.78 in full at the rate of $200 per month, and to pay his general unsecured creditors whose debts total $67,310.27 an amount equal to one per cent of the debt, or $673.10, payable at the rate of an additional $75 per month. Each of these plans is illusory. None of them constitute the best effort or indeed, any substantial effort, by the debtor, and none of them propose to pay to the creditor a reasonable sum based upon the debtor’s ability to pay. Instead, it is obvious that the motive of the debtor in proposing the plan, which might be variously described as illusory or nominal or token, is to gain the benefit of a Chapter 13 release as distinguished from the benefits of a release under Chapter 7 of the Bankruptcy Code. It cannot be disputed that one of the major purposes of the American bankruptcy system is, as stated in Local Loan Co. v. Hunt, 292 U.S. 234, 54 S.Ct. 695, 78 L.Ed. 1230, to “relieve the honest debtor from the weight of oppressive indebtedness and permit him to start afresh free from the obligations and responsibilities consequent upon business misfortunes.” To accomplish this beneficent purpose the American bankruptcy system has developed a unique feature which has not been present in most bankruptcy systems down through history and is still not present in most bankruptcy systems around the world even today. This “fresh start” concept is accomplished by giving to the debtor in a bankruptcy proceeding a discharge from his liabilities. The discharge" }, { "docid": "17505590", "title": "", "text": "taxes and CAM charges so that the amounts due become a post-petition claim. This type of manipulation of debtor’s expenses is not something this Court will encourage and is a practice which can only harm the debt- or’s efforts at achieving a successful reorganization. One court, adopting the accrual method, has described debtor’s real estate taxes as “a sunk cost, not a current expense of allowing the debtor to remain in possession.” In re Warehouse Club, Inc., 184 B.R. 316, 317 (Bankr.N.D.Ill.1995). The court went on to state as a corollary that “debtor’s continued occupancy did not increase the landlord’s burden for last year’s taxes or make the landlord an involuntary creditor for those taxes.” Id. The accrual method confirms the fresh start purpose of the bankruptcy laws in that bankruptcy allows a debtor to “ignore sunk costs— treat bygones as bygones” in the hopes that debtor will yield an overall economic strengthening. See In re Handy Andy Home Improvement Centers, Inc., 144 F.3d at 1127. Judge Posner stated most eloquently the rationale behind the accrual method: What [the debtor] wanted was the continued occupancy of the leased property until it rejected the lease. To get this benefit it had to pay the full rent under the lease for every day that it continued to occupy the property; section 365(d)(3) ... requires no less. But [debtor’s] debt to [the landlord] for 1994 and earlier 1995 taxes relates entirely to an earlier period, and is thus no different from its debts to trade creditors for supplies that it bought in 1994 and never paid for. Id. We note that the leased site involved in that case was one in Cook County, Illinois — where real estate taxes are billed in arrears. The landlord in In re Handy Andy faced the same predicament as many of the landlords in this case in that all had substantial real estate taxes owing from the debtor due to the Illinois method of billing for taxes in arrears. Based upon the fairness that results from the accrual method, we adopt that approach to the debtor’s liability" }, { "docid": "1519350", "title": "", "text": "time of bankruptcy has been administered for the benefit of creditors. Our decisions lay great .stress upon this feature of the law as one not only of private but of great public interest, in that it secures to the unfortunate debtor, who surrenders his property for distribution, a new opportunity in life.” In making its recommendations in 1973, the Commission informed Congress that for consumer debtors, exemptions and discharge “are essential features of a system of financial rehabilitation of financially troubled individuals.” Finding the existing bankruptcy law to be inadequate, the Commission recommended changes intended to enhance the fresh start of consumer debtors. In the area of exemptions, the Commission proposed a uniform federal law, discussed above. But the Commission recognized that “exemptions alone will not insure that the debtor will be able to retain the basic means of survival.” Debtors needed federal protection against losing their exemptions. Thus, the Commission proposed to limit waivers of exemptions, to permit avoidance of non-purchase money security interests in property “essential to a debtor’s well-being,” and to ban reaffirmations. Moreover, the Commission proposed to protect debtors’ exemptions by permitting exemptions in property recovered under the avoiding powers, by not requiring debtors to do anything to claim exemptions, and by permitting the debt- or’s spouse or dependents to claim exemptions. Finally, the Commission proposed to make exemptions effective by expanding the jurisdiction of the bankruptcy court to include all questions regarding exemptions and by permitting redemption of exempt property from liens. In order to enhance the discharge, the Commission recommended eliminating the false financial statement exception to discharge, permitting a hardship discharge even if a discharge had been granted within five years of the petition, abandoning the concept of provable debts and thus expanding the debts which would be discharged, and liberalizing the discharge of student loans and tax obligations. In addition, the Commission recommended prohibiting reaffirmations, forbidding discriminatory treatment of discharged debts, and expanding the jurisdiction of the bankruptcy court to include all issues relating to the discharge, such as reaffirmation and discriminatory treatment. These recommendations reveal that the Commission’s view of how" }, { "docid": "10527391", "title": "", "text": "bond, the ability to sell licenses is doubtlessly important to bringing in customers to a bait, tackle, and hunting supplies store. The surety bond was a business cost incurred by the debtor for the state’s protection so that he could sell licenses for the financial benefit of his own business. The court sees no unfairness in this situation in holding the debtor liable to the surety to the extent the fees it paid were nondischargeable taxes. The ninth circuit found another problem with excepting a surety’s subrogation claim from discharge. Since a bankruptcy discharge is intended to give an individual debtor a financial fresh start, the exceptions from discharge are narrowly construed against creditors and for the benefit of debtors. 3 L.King, Collier on Bankruptcy H 523.05 (15th ed. 1989). The court of appeals held that excepting a surety’s sub-rogation claim from discharge conflicted with this policy. A debtor’s fresh start is not overburdened by excepting a surety’s subrogation claim from discharge. The debtor’s fresh start is the same; he owes the same amount of nondischargeable tax debt; the only difference is whether the debtor owes the debt to the government or the surety. The court has already answered the argument that it is unfair for the debtor to be forced to pay for the surety bond and still be liable for nondischargeable taxes. The court concludes that Safeco can be subrogated do the nondischargeability of a state tax claim. The court turns now to the question of whether fees for hunting and fishing licenses are a tax. (2) Whether the fees are a tax under the priority statute or the exception from discharge is a question of bankruptcy law. It is not a question of state law or a question of federal law on subjects other than bankruptcy. New Jersey v. Anderson, 203 U.S. 483, 27 S.Ct. 137, 51 L.Ed. 284 (1906). The same question arose under the priority and dischargeability provisions in the prior law, the Bankruptcy Act of 1898. 1A J. Moore, Collier on Bankruptcy ¶ 17.14[9] (14th ed. 1988). The court has found nothing in the" }, { "docid": "13975025", "title": "", "text": "reopening because: 1) the hotel has been unjustly enriched at the Government’s expense; 2) the bankruptcy court erred in confirming the plan’s tax provision; 3) one of the four parcels of land offered in lieu of payment was already owned by the Government, and 4) delivery of the remaining parcels was incomplete and required legislative approval. We find merit in only the second of these factors. See In re Furniture Distributors, Inc., 45 B.R. 38, 44 (Bkrcy.D.Mass.1984). Accord In re Mullendore, 741 F.2d 306, 308 (10th Cir.1984). This alone, how ever, cannot support a finding that bankruptcy court abused its discretion. The Government has candidly admitted that despite knowledge and displeasure with the hotel’s settlement of the tax claim, it failed to contest the plan or even attend one of the many hearings in this matter until after the case was dismissed. Reopening would undercut the Bankruptcy Code’s principle policy of ensuring the fi-nalty of insolvency proceedings. See Crosby, supra at 1276. It would also set a precedent for creditors to challenge a confirmed plan once it appears that more of the debtor’s assets have become available. We think that a debtor reorganizing in good faith should not have to look back over its shoulder for the lazy or opportunistic creditor. We find, therefore, that the bankruptcy court correctly concluded that the Government is bound to the plan’s settlement of pre-petition taxes. B. The Hotel’s Cross-appeal The hotel appeals the bankruptcy court’s order that it pay to the Government post-petition taxes totalling $127,219.48. The court found that these taxes constituted an administrative expense which, under the order of confirmation, should have been paid when the plan was confirmed. It expressed surprise that the post-petition taxes had not been paid. (Tr. p. 79). The hotel does not dispute that the order of confirmation mandated immediate payment of these expenses.- Instead it argues that the plan’s tax provision should be interpreted as including all taxes. Administrative expenses include taxes incurred during reorganization and are accorded the highest priority in the debtor’s repayment schedule. 11 U.S.C. § 507(a)(1). They are due upon confirmation" }, { "docid": "10522530", "title": "", "text": "U.S.C. §§ 157 and 1334 and the General Order of Reference entered in this district. This is a core proceeding which the Court is empowered to hear and determine in accordance with 28 U.S.C. § 157(b)(2)(A), (K) and (O). An evidentiary hearing was held on October 22, 1996. The parties submitted post hearing briefs which the Court has considered in rendering its opinion and order. This Court’s findings of fact and conclusions of law, pursuant to Rule 7052, shall follow: FINDINGS OF FACT This case involves a practice which is becoming all too familiar on the American landscape among consumers. Here, we examine the largely unregulated practice by financial institutions of lending funds to taxpayers based upon their anticipated income tax refund. While not expressly condoned by the federal government, the practice as far as bankruptcy courts are concerned appears to be growing more popular with debtors who find themselves having to seek the protection under the bankruptcy laws. Too often, already strapped debtors view these programs as a quick answer to their immediate cash problems without the benefit of a long term strategy for addressing the problems at their roots. These debtors very often find themselves worse off than when they started. This ease is no exception. Prior to filing her Chapter 13 petition, the Debtor applied for and received three Refund Anticipation Loans (“RAL”) from Central Credit, a credit union where she had an account. Teresa O’Farrell, an employee at Central Credit, described the procedure Richardson undertook to obtain the RALs. As part of the application procedure, a tax return preparer hired by Central Credit interviewed the Debtor and completed her 1995 federal income tax returns which were later electronically filed with the IRS. Richardson was also required to sign a Refund Anticipation Loan Application and Agreement (“RAL Agreement”) at the time of her application. The RAL Agreement provides, in material part, as follows: I authorize the Credit Union to obtain my Internal Revenue Service (“IRS”) Form 8453, and any other information concerning my federal and state tax filings for the year 1995 from my tax return preparer" }, { "docid": "1090160", "title": "", "text": "ORDER MIHM, District Judge. Michael and Lorine Etheridge (herein “Debtors”) are appealing the bankruptcy court’s decision in favor of the State for $14,658 of Retailers Occupation Taxes, owed to the Illinois Department of Revenue by the Etheridges’ retail building supply business. The issue on appeal is whether a late filed tax return, filed more than two but less than three years before the bankruptcy petition, is excepted from discharge under Bankruptcy Code § 523(a)(1). 11 U.S.C. § 523(a)(1). For the reasons stated below, the Court affirms the bankruptcy court’s order. BACKGROUND The Bankruptcy Code attempts to balance the debtor’s interest in a fresh start with creditors’ interest in maximizing both the pool of assets and their individual recoveries. The Code sections at issue in this case reflect this tension. The primary mechanism for an individual debtor’s fresh start is a discharge in bankruptcy, 11 U.S.C. § 524, which operates to enjoin any attempt to enforce a discharged claim. Other policies, which support the interests of certain creditors over those of the debtor, are reflected in the priorities for distribution of payments from the bankruptcy estate, 11 U.S.C. § 507, and in the exceptions from discharge of certain claims, 11 U.S.C. § 523. This case involves the state government’s interest in collecting taxes due, which are generally afforded seventh priority, 11 U.S.C. § 507(a)(7); and the non-dischargeability of certain tax claims under § 523(a)(1). 11 U.S.C. § 523(a)(1). The parties here disagree about the interplay between these two sections of the Bankruptcy Code, as applied to certain retailer taxes payable by the Etheridges’ business between two and three years prior to their bankruptcy filing. The Code’s provisions and a recent Seventh Circuit decision appear to dispose of both the older and the more recent tax liabilities. (Older taxes are “stale,” whereas newer ones are non-dischargeable as a matter of public policy). Retailers Occupation tax returns are due on the last day of the month for the preceding month. Ill.Rev.Stat. ch. 120, UK 440, 444. On October 9, 1985, the Etheridges filed a consolidated late tax return covering February through September 1984," }, { "docid": "2110786", "title": "", "text": "(6th Cir. 1994). The overwhelming majority of courts confronted with this issue have rejected the argument that Johnston makes here. In Baer v. Montgomery (In re Montgomery), 219 B.R. 913 (10th Cir.BAP 1998), for example, the bankruptcy court had deter mined that a debtor’s EIC for the pre-petition portion of the tax year was not part of the bankruptcy estate. The court based its reasoning on the opinion in Hoffman v. Searles (In re Searles), 445 F.Supp. 749 (D.Conn.1978), which held that under the “fresh start” provision of § 70a(5) of the Bankruptcy Act, EICs are “expectancies” accruable at the end of the tax year and payable in the year following bankruptcy. Searles, 445 F.Supp. at 753. The Bankruptcy Appellate Panel for the Tenth Circuit reversed and remanded, noting that the bankruptcy court’s conclusions were misplaced in light of the Bankruptcy Reform Act of 1978: The Bankruptcy Act was repealed in favor of the modern Bankruptcy Code by the Bankruptcy Reform Act of 1978. Though the “fresh start” maxim rising from section 70a(5) of the Act may have been a fundamental consideration in the formation of the Code, we recognize the maxim to be a limited, and no longer a completely unencumbered, guiding principle. Unlike the Act, the Code requires that all property of the debtor, whether or not exempt, be included in the bankruptcy estate, mandating that an estate in bankruptcy comprise “all legal or equitable interests of the debtor in property as of the commencement of the case.” 11 U.S.C. § 541(a)(1) (1994). Legislative history indicates section 541 is intended to be given a broad definition to include “all kinds of property, including tangible or intangible property, causes of action ..., and all other forms of property specified in section 70a of the Bankruptcy Act.... [I]t includes as property of the estate all property of the debtor, even that needed for a fresh start.” H.R.Rep. No. 95-595, at 367 (1977). Any conclusion that EICs are necessary or mandatory for a “fresh start” may be reasonably inferred under the Act, but is incorrect in light of the Code. Montgomery," }, { "docid": "1519337", "title": "", "text": "from Texas will be against it.” I think at least somebody ought to inquire as to whether they will or will not, before this idea is simply abandoned. We need a national exemption policy in bankruptcy. Griffin B. Bell, Attorney General of the United States, argued for uniform federal exemptions. The Commercial Law League of America supported H.R. 8200, as did Bankruptcy Judge Joe Lee. The National Consumer Finance Association, without specifically endorsing H.R. 8200, argued that the Senate’s exemption provision is contrary to the goal of establishing a bankruptcy law that is uniform throughout the nation. Currently state law determines what property is exempt from the bankruptcy estate and experience has demonstrated the unfairness of this system to both debtors and creditors. It is unfair to those debtors who live in states where there are inadequate exemptions to protect property that is necessary to give them a “fresh start,” and it is unfair to creditors in states that allow debtors to retain extensive property that should be used to repay at least some of their debts. The Federal Bankruptcy system should determine what property is necessary for debtors, in all states, to maintain an adequate standard of living and to get a fresh financial start, and to protect property, and only that property, with Federal law. The National Bankruptcy Conference warned the Subcommittee that S. 2266 would delete or seriously impair most of the provisions in H.E. [sic] 8200 that make the debtor’s fresh start, a basic bankruptcy concept, more meaningful. [One] aspect of a meaningful fresh start is exemptions. Presently, the Bankruptcy Act provides an ineffective System by incorporating the exemption laws of the various states. Many States provide lit- tie exemption benefits to a debtor. The House Bill also permits the use of State law, but contains a Federal alternative which assures at least uniform minimum benefits. The Senate Bill returns us to the present system which has proven unsatisfactory, as indicated in the previous hearings before the Senate and House Subcommittees and the Report of the Commission on the Bankruptcy Laws of the United States. Despite" } ]

[ { "docid": "10454835", "title": "", "text": "deduction of the entire estate and inheritance tax would have operated upon the amount of his income tax. Section 23 (c) of the Revenue Act of 1928 provides for the deduction of taxes, and includes the following: * * * For the purpose of this subsection, estate, inheritance, legacy, and succession taxes accrue on the due date thereof, except as otherwise provided by the law of the jurisdiction imposing such taxes, and shall be allowed as a deduction only to the estate. Words could not be plainer to confine the use of the deduction to the decedent’s estate. In cases where the beneficiary of the decedent’s estate sought the deduction, its disallowance has been sustained under this statute. Gillette v. Commissioner, 76 Fed. (2d) 6; Martz v. Commissioner, 82 Fed. (2d) 110. This the petitioner admits, and disclaims any right to the deduction qua deduction on her individual return. She claims, however, that she may have an equivalent benefit by including in her gross only the remainder of the trust income after its deduction of the tax. Thus the argument turns upon whether the trustee of the inter vivos trust was entitled to take the deduction. Clearly the taxpayers may not by their own choice circumvent the express restriction of the statute. If petitioner had been the direct recipient of her husband’s gift in anticipation of death, she ^would have no right to deduct the estate tax on her income tax return, even though she paid it all. Gillette v. Commissioner, supra; Martz v. Commissioner, supra. The trustee has no greater right, even if by the trust instrument he was required to bear the tax or given the right to bear it. While it is true that the trust corpus is used to measure the estate tax, the fiduciary of one may not be confused with the fiduciary of the other by calling than- both the “estate.” In this they are wholly unlike the single fiduciary of an estate and a testamentary trust arising from the same will. Cf. Commissioner v. Beebe, 67 Fed. (2d) 662; Commissioner v. Pennsylvania Co." } ]

[ { "docid": "9714980", "title": "", "text": "'argued a fortiori that a revocable trust intended to take effect in possession or enjoyment, at or after the trustor’s death should be entitled to deduct federal estate taxes. Commissioner v. Junius Beebe, Trustee, 1 Cir., 67 F.2d 662, 92 A.L.R. 862, and Commissioner v. Pennsylvania Company for Insurance, etc., 3 Cir., 83 F.2d 545. But the trust in each case was created by will and decision was based tipon the circumstance that the trust derived its powers from the will of the decedent and was therefore the decedent’s estate, whether the person charged with its administration was administrator, executor, or testamentary trustee. The present trust was created by the decedent during his lifetime. The trust estate was severed from the decedent’s personal estate, subject it is true to a reserved power of revocation, but severed notwithstanding Unless and until such power was exercised. Upon the death of the decedent the trust powers became absolute, but by virtue of the trust instrument and not of the will. The conclusion that a revocable living trust is not the equivalent of a testamentary trust must follow consideration of the rights of creditors to the assets conveyed. The corpus of a testamentary trust may never come into being if the debts of the estate entitled to priority exhaust the estate, but a transfer inter vivos may not be set aside unless in fraud of creditors, and it has been held that a power of revocation in a deed of conveyance even from a husband to his wife does not without more invalidate the transaction. Jones v. Clifton, 101 U.S. 225, 25 L.Ed. 908. “A transfer within the meaning of a taxing act may or may not be one within the statute of Elizabeth.” Burnet v. Guggenheim, 288 U.S. 280, 289, 53 S.Ct. 369, 372, 77 L.Ed 748. The argument that unless the trust is allowed the deduction for taxes the law discriminates against it and that such discrimination is not to be imputed to the Congress is not persuasive. Deductions from income are, as pointed out by the Board of Tax Appeals, matters" }, { "docid": "6521173", "title": "", "text": "of tbe House Bill provides lliat estate, inheritance, legacy and succession taxes shall be allowed as deductions only to the decedent’s estate and not to the beneficiary. This is a change in existing law and is a substantial simplification. Furthermore, there is no sound policy which requires Hie deduction to be allowed to the beneficiary. The distributions of corpus which he receives are not treated as income and the tax which he is required to pay in effect is merely a decrease in the corpus trnnsmilied io him. In Elmon C. Gillette, 29 B. T. A. 561, we held that a California inheritance tax paid in January 1928 by a beneficiary of.the estate was not deductible by him in computing his taxable net income for 1928. There the taxpayer made substantially the same contention that is urged here. In affirming our decision (C. C. A., 2d Cir., 76 Fed. (2d) 6) the court said: * * * Such deductions are ordinarily matters of grace and a statute which only allows them to estates could not seem to involve an arbitrary classification. Essentially they are carved out of the estates of decedents prior to devolution of the property and beneficiaries get nothing but what is left. Keith v. Johnson 271 U. S. 1, supra. There can be no objection to depriving a legatee of a deduction of inheritance taxes from his income for naturally they are not payable by him but from his legacy which properly he only receives less the taxes. If he gets the gross amount and has to pay the tax personally, it is not the fault of the taxing system * * *. Respondent’s action on the first issue is approved. The second issue is whether interest on Federal estate taxes, assessed against the estate and paid by the beneficiaries after administration had been closed and the executors discharged, is deductible by the beneficiaries. Section 23 (b) of the Revenue Act of 1928 provides that in computing net income there shall be allowed as a deduction “all interest paid or accrued within the taxable year on indebtedness”," }, { "docid": "12737741", "title": "", "text": "the estate, and while the executor is primarily liable to pay it, it is nevertheless payable by any person who has in his hands property comprising a part of the estate. The defendant, argues, however, that the trust estate created by the decedent’s will for the benefit of the plaintiff was distinct from the decedent’s estate and that the latter alone was indebted for the tax and, therefore, it alone was entitled to deduct the interest paid thereon. To this proposition we cannot accede. In our opinion the testamentary trust created by the decedent’s will was just as much a part of his estate as the fund which the executors retained in their possession. Commissioner v. Beebe (C.C.A.) 67 F.(2d) 662, 92 A.L.R. 862; Commissioner v. Pennsylvania Co., etc. (C.C.A.) 83 F.(2d) 545, 546. In the latter case Circuit Judge Thompson said: “The Commissioner claims that the testamentary trust is not an estate, and that, inasmuch as the taxes were paid by the respondent as trustee and not as executor, they are not deductible. The trust was created by the will. That portion of the estate funds allocated to the trust was as much part of the estate as were the assets disposed of in other fashion. Compare Commissioner of Internal Revenue v. Beebe (C.C.A.) 67 F.(2d) 662, 92 A.L.R. 862. In fact, the administration of the estate could not be deemed wound up until the termination of the trust. Within the meaning of the act, the respondent is claiming the deduction on behalf of the estate and is entitled thereto.” It follows that the interest paid out of the income of the testamentary trust for the benefit of the plaintiff was paid upon indebtedness of that trust estate. The United States finally urges, however, that even if this be so the interest so paid is not deductible because under paragraph thirteenth of the will it should have been paid out of the principal of the estate retained by the executors and not out of income. That is the paragraph by which the decedent directed his executors to pay all" }, { "docid": "3544089", "title": "", "text": "between inheritance taxes on property which passed to an executor and on property transferred in contemplation of death. It is said in this connection that, if A should bequeath $100,000 to trustees to pay the income to his son, his executor would be able to pay the inheritance taxes and deduct the amount from the income of the estate during the period of administration, thus increasing the payments available for the beneficiary. If B; however, a month before his death, gave his son $100,000 in contemplation of death and that sum Constituted the donor’s whole estate, the son would be required to pay the inheritance .tax while, under the terms of section 23 (c) (3), he would not have the benefit of any deduction of the payment from the income. But w.e do not think that the statute would involve an arbitrary classification even if . the constitutional rights of the present taxpayer were viewed most strongly in his favor. The trustees here had property available to pay the inheritance tax, were under a duty to pay it from that property, and were entitled to deduct any amount thus paid from the income which might accrue from income from their trust. Commissioner v. Beebe (C. C. A.) 67 F.(2d) 662, 92 A. L. R. 862. But, even if no trust had been created and the gift had been made directly to the taxpayer, we are not persuaded that an inability of the executor of the donor to secure property from which the inheritance tax might be paid would render the provisions of section 23 (c) (3) arbitrary or capricious. If a donor transfers his property in such a way that the transfer is testamentary in character and because of such transfer leaves no assets coming into the hands of his executor or administrator with which to pay inheritance taxes, it may well be that a deduction of the inheritance taxes from income can be taken by no one. Such deductions are ordinarily matters of grace, and a statute which only allows them to estates could not seem to involve an" }, { "docid": "3544084", "title": "", "text": "1928, and deducted that amount from his income when making his tax return for that year. Under authority of section 23 (c) of the Revenue Act of 1928 (26 USCA § 2023 (c), the Commissioner disallowed the deduction and determined a deficiency of $15,001 because of the disallowance. The Board of Tax Appeals affirmed the Commissioner. None of the property of the trust ever came into the hands of the executors of Lina Gillette, and they paid no inheritance taxes thereon, but it remained in the possession of the trustees until actually distributed to the remaindermen. The right of the taxpayer to deduct the inheritance taxes, which he paid in 1928, from his income for that year, is the subject of the controversy on the present appeal. Section 23 (c) of the Revenue Act of 1928, which became a law on May 29th of that year, in computing net income for purposes of taxation, allowed the deduction from gross income of taxes paid or accrued during the taxable year, but in subdivision (3) thereof (26 USCA § 2023 (c) (3) contained the following limitation: “For the purpose of this subsection, estate, inheritance, legacy, and succession taxes accrue on the due date thereof, except as otherwise provided by the law of the jurisdiction imposing such taxes, and shall be allowed as a deduction only to the estate.” The foregoing subdivision under section 65 (26 USCA § 2065) following was to “take effect as of January 1, 1928.” It is argued that section 23 (c) (3) does not apply to the present case because, under section 703 (a) (2) of the same Revenue Act of 1928 (26 USCA § 2703 (a) (2), inheritance taxes were to be allowed as a deduction to the beneficiary, if claimed by the latter, and not by the estate. Here they were paid and claimed as a deduction by the beneficiary, made a liability of the latter by judgment of the superior court of California, and neither paid nor claimed as a deduction by the executor of Lina Gillette or by the trustees under her trust deed." }, { "docid": "15638634", "title": "", "text": "executor, administrator or trustee, by the person so entitled thereto, at the expiration of one year from the date when the right of possession accrues to the persons so entitled.” Section 13 of the same chapter provides: “Except as otherwise provided in this and the following section, the tax imposed by this chapter Shall be assessed upon the actual value of the property at the time of the death of the decedent. In ease of a devise, descent, bequest or grant to take effect in possession or enjoyment after the expiration of one or more life estates or of a term of years, the tax shall be assessed on the actual value of the property or interest therein coming to the benefieiary at the time when he becomes entitled to the same in possession or enjoyment.” For the purpose of determining the tax, the commonwealth of Massachusetts made an appraisal of the corpus of the estate as of April 27, 1927, and assessed the tax in 19-28. The tax was paid in that year and was deducted by the trustee, Junius Beebe, in determining the net income of the estate for that year. Junius Beebe had been discharged as executor before the tax was, or could be, assessed; and it was assessed to Junius Beebe as trustee, who was the only person to whom it could be assessed; and was paid by him. Section 23 (e) of the United States Revenue Act of 1928 (26 USCA § 2923 (e), providing that certain taxes are deductible from gross income in determining net income for tax purposes, contains this provision: “For the purpose of this subsection, estate, inheritance, legacy, and succession taxes accrue on the due date thereof, except as otherwise provided by the law of the jurisdiction imposing such taxes, and shall be allowed as a deduction only to the estate,” The Commissioner 'of Internal Revenue seeks to disallow this'tax as a deduction. He claims that under article 154, Treasury Department Regulations 74, such tax can be deducted only by an estate in process of administration, namely, by an executor or" }, { "docid": "21093360", "title": "", "text": "HUTCHESON, Circuit Judge. This petition concerns the estate tax assessed in 1933 against an insolvent estate. The contention is over the deduction at their face amount of debt claims against the estate which, though valid, could not because of insolvency be paid in full. The controversy exists because, notwithstanding the estate’s insolvency, certain life insurance in excess of $40,-000, and certain homestead property, the one not liable to the decedent’s debts because not payable to the estate, the other because exempt property, but both included by the taxing statute in the gross estate, passed to the several beneficiaries by decedent’s death. The taxpayer stood below and stands here on the language of the act, defining the gross estate and providing for deductions from it. The Commissioner insists that the true intent of the act is to tax not a theoretical net estate but a real one, in short all value transferred by death to others than creditors; that claims are therefore to be allowed as deductions only to the extent that they are paid or payable out of the gross estate; that if because of exemption from, or other ground of nonliability, any part of the statutory gross estate passes to beneficiaries free from debts, it passes for tax purposes without the benefit of their deduction. The Board of Tax Appeals rejected this view. It held that the claims were to be deducted at their face, citing Commissioner of Internal Revenue v. Strauss (C.C.A.) 77 F.(2d) 401, and Union Guardian Trust Co., Administrator, v. Com’r, 32 B.T.A. 996. There may now be added O’Donnell v. Commissioner, 35 B.T.A. 251. The decisions cited by the Board insist rightly that the words of the act must be followed rather than a supposed intent not expressed by them. Where the words of a tax act have a sensible meaning, they are controlling. A real doubt as to their meaning is given in favor of the taxpayer. There seems to us no difficulty regarding, no real doubt concerning, the meaning of the words of the statute which-are important here. Section 301 (a), Revenue Act" }, { "docid": "17611913", "title": "", "text": "right to a claimed deduction or exemption. Interstate Transit Lines v. Commissioner, 319 U.S. 590, 593, 63 S.Ct. 1279, 87 L.Ed. 1607; United States v. Stewart, supra. Decisions of the Tax Court are to be reviewed by the same standards as are applied to decisions of the district court in civil cases tried without a jury. Findings of fact by the Tax Court shall not be set aside unless they are clearly erroneous. Greenspon v. Commissioner, 8 Cir., 229 F.2d 947, 949; Omaha Nat. Bank v. Commissioner, 8 Cir., 183 F.2d 899, 902, 25 A.L.R.2d 628; Doll v. Commissioner, 8 Cir., 149 F.2d 239, 247. Taxpayers contend that the deducti-bility of administration expenses in the computation of the charitable deduction is dependent upon federal law. The Government and the Tax Court place some reliance upon Missouri law, claiming that under the law of that state administration expenses are to be paid out of corpus, not income. See Estey v. Commerce Trust Co., 333 Mo. 977, 64 S.W.2d 608, 616, where the Supreme Court of Missouri, among other things, states: “Such executor’s fee is properly allowed and deducted from the funds of the estate the same as amounts due creditors whose demands have been established, and such deductions are made before the ‘rest, residue and remainder of my estate’ passes to the trustee to be adminis- ' tered by it.” The will contains no express provision designating where the burden of administration expenses shall fall. The Tax Court' expressed the view that local law would govern in determining where the burden for payment of administration expenses should ultimately fall and that under Missouri law the testator would be presumed to have intended the administration expenses to be paid out of the corpus and that as a result only the net residue of the estate passed to charity. We believe that our problem here is primarily one involving the construction of federal statutes, particularly § 812(b) and (d), and that federal law should control in the construction of a federal statute. See Burnet v. Harmel, 287 U.S. 103, 110, 53 S.Ct. 74," }, { "docid": "14164741", "title": "", "text": "amount as a business expense deduction. During the tax year he was nominated to the Board of Governors of the Missouri Athletic Club and expended in his campaign for election the sum of $1,487.42, which amount he also claimed as a business expense deduction. The Commissioner disallowed one-third of the club dues paid by the taxpayer and disallowed the entire amount expended in his campaign for election to the Board of Governors of the Missouri Athletic Club. From the decision of the Commissioner disallowing his claimed deductions on account of club dues and campaign expenses and redetermining the amount of his tax due, petitioner appealed to the Tax Court. On trial, the court found the issues in favor of the Commissioner and entered decision upholding the deficiency of taxpayer’s income tax as redetermined by the Commissioner. ' It was the contention of the taxpayer in the Tax Court that the expenditures for club dues and campaign expenses were deductible from his income for the tax year and were allowable as ordinary and necessary business expense under Section 23(a) (1) (A), Internal Revenue Code of 1939, 26 U.S.C.A. § 23(a) (1) (A), and he renews that contention here. The courts are in accord that deductions from gross income are a matter of legislative grace and do not turn on general equitable considerations and the burden of clearly showing the right to the claimed deduction is on the taxpayer. F. Strauss & Son, Inc. v. Commissioner of Internal Revenue, 8 Cir., 251 F.2d 724; Deputy v. Dupont, 308 U.S. 488, 60 S.Ct. 363, 84 L.Ed. 416; New Colonial Ice Co. v. Helvering, 292 U.S. 435, 54 S.Ct. 788, 78 L.Ed. 1348; Omaha Nat. Bank v. Commissioner of Internal Revenue, 8 Cir., 183 F.2d 899, 25 A.L.R.2d 628; O’Malley v. Yost, 8 Cir., 186 F.2d 603; Wetterau Grocer Co. v. Commissioner of Internal Revenue, 8 Cir., 179 F.2d 158; Montana Power Co. v. United States, 3 Cir., 232 F.2d 541. Whether or not the expenditures are. ordinary and necessary business expenses is a question of fact to be determined from all the evidence" }, { "docid": "10394074", "title": "", "text": "omitted.] In Mayfair Minerals, Inc. v. Commissioner, supra, we pointed out the rationale for the tax benefit rule (p. 86): The reason for this rule is clear. “When recovery or some other event which is inconsistent with what has been done in the past occurs, adjustment must be made in reporting income for the year in which the change occurs. No other system would be practical in view of the statute of limitations, the obvious administrative difficulties involved, and the lack of finality in income tax liability, which would result.” Estate of William H. Block, 39 B.T.A. 338, 341 (1939), affirmed sub nom. Union Trust Co. v. Commissioner, 111 F. 2d 60 (C.A. 7, 1940), certiorari denied 311 U.S. 658 (1940). Petitioner argues that the tax benefit rule cannot apply in this case because the deduction by PSP of the $4,158,624.87 at issue during the years 1915-24 was erroneous as a matter of law. It is well settled, as both parties acknowledge, that the tax benefit rule can be applied only where the prior deduction was legally proper. In those instances where the prior deduction was not properly allowable under the applicable law, the Commissioner may not make an adjustment to the taxpayer’s gross income for the year in which the deducted amount is recovered. Streckfus Steamers, Inc. v. Commissioner, 19 T.C. 1, 8 (1952); Canelo v. Commissioner, 53 T.C. 217, 226-227 (1969), affd. on another issue 447 F.2d 484 (9th Cir. 1971). See also Kingsbury v. Commissioner, 65 T.C. 1068, 1087-1088 (1976); Twitchco, Inc. v. United States, 348 F. Supp. 330, 335 (M.D. Ala. 1972). This exception to the rule is premised on the notion that— the statute of limitations requires eventual repose. The “tax benefit” rule disturbs that repose only if respondent had no cause to question the initial deduction, that is, if the deduction was proper at the time it was taken. * * * [Canelo v. Commissioner, supra at 226-227.] In an attempt to prevent petitioner from avoiding the application of the tax benefit rule under the theory of the above-cited cases, respondent raises, by an" }, { "docid": "3755252", "title": "", "text": "Ida M. could have had a dower interest except two lots of comparatively little value. The petitioner offered to prove that after the divorce he acquired more real estate but that was excluded and properly so for after Ida M. ceased to be decedent’s wife the kind and amount of his property bore in no way upon what her dower or other marital rights may have been while she was married to the decedent. Van Blaricum v. Larson, 205 N.Y. 355, 98 N.E. 488, 41 L.R.A., N.S., 219, Ann.Cas.1913E, 553. A point has been argued for the petitioner that should be considered briefly in order to put it to one side before the merits of the petition are taken up. It is that there are constitutional reasons why these statutes are invalid if they should be held to preclude the taking of the deductions claimed. Such a contention can be made only when there is a failure to distinguish between the right to measure such a transmission tax as the federal estate tax by the value of the property which death causes to be transmitted and the partial relinquishment of that right by allowing certain deductions to be made from that value before the tax is computed. It is not essential to the validity of an estate tax that all claims which may be enforced against the property should be deducted before making the calculation. Taft v. Commissioner, 304 U.S. 351, 58 S.Ct. 891, 82 L.Ed. 1393, 116 A.L.R. 346; Empire Trust Co. v. Commissioner, 4 Cir., 94 F.2d 307. So Congress, having the power to determine whether to allow certain claims to be deducted before arriving at the base amount on which the tax is to be computed may exercise that power or not and if it does exercise it may do so with whatever uniform restrictions it cares to impose. Whether or not such deductions are allowed, no property not transmitted at death is included in the estate. Compare, Porter v. Commissioner, 2 Cir., 60 F.2d 673; Sheets v. Commissioner, 8 Cir., 95 F.2d 727. A taxpayer has" }, { "docid": "10454836", "title": "", "text": "the tax. Thus the argument turns upon whether the trustee of the inter vivos trust was entitled to take the deduction. Clearly the taxpayers may not by their own choice circumvent the express restriction of the statute. If petitioner had been the direct recipient of her husband’s gift in anticipation of death, she ^would have no right to deduct the estate tax on her income tax return, even though she paid it all. Gillette v. Commissioner, supra; Martz v. Commissioner, supra. The trustee has no greater right, even if by the trust instrument he was required to bear the tax or given the right to bear it. While it is true that the trust corpus is used to measure the estate tax, the fiduciary of one may not be confused with the fiduciary of the other by calling than- both the “estate.” In this they are wholly unlike the single fiduciary of an estate and a testamentary trust arising from the same will. Cf. Commissioner v. Beebe, 67 Fed. (2d) 662; Commissioner v. Pennsylvania Co. for Insurances, etc., 83 Fed. (2d) 545. The latter is indeed a fiduciary under the decedent’s will of part of the property within his estate. But the fiduciary of an inter vivos trust is not administering testamentary property. The fact that the Federal revenue act treats the property, because the trust was made in contemplation of death, as if it were part of the decedent’s estate, is not sufficient to give a new or special meaning to the word estate as a taxpayer. As used in section 23 (c), the word estate is a word of personification, meaning a taxpayer. See section 701 (a) (1). It may include several persons who carry out the decedent’s will, Commissioner v. Beebe, supra, but it is not at the same time to be used as meaning the property being administered. The evidence does not disclose whether in fact the petitioner actually received from the trustee only the amount shown as net income upon the fiduciary’s return, and therefore even if equitable consideration were germane it would be impossible" }, { "docid": "3544090", "title": "", "text": "to pay it from that property, and were entitled to deduct any amount thus paid from the income which might accrue from income from their trust. Commissioner v. Beebe (C. C. A.) 67 F.(2d) 662, 92 A. L. R. 862. But, even if no trust had been created and the gift had been made directly to the taxpayer, we are not persuaded that an inability of the executor of the donor to secure property from which the inheritance tax might be paid would render the provisions of section 23 (c) (3) arbitrary or capricious. If a donor transfers his property in such a way that the transfer is testamentary in character and because of such transfer leaves no assets coming into the hands of his executor or administrator with which to pay inheritance taxes, it may well be that a deduction of the inheritance taxes from income can be taken by no one. Such deductions are ordinarily matters of grace, and a statute which only allows them to estates could not seem to involve an arbitrary classification. Essentially they are carved out of the estates of decedents prior to devolution of the property, and beneficiaries get nothing but what is left. Keith v. Johnson, 271 U. S. 1, 6, 46 S. Ct. 415, 70 L. Ed. 795. There can be no objection to depriving a legatee of a deduction of inheritance taxes from his income, for naturally they are not payable by him but from his legacy, which properly he only receives less the taxes. If he gets the gross amount and has to pay the tax personally, it is not the fault of the taxing system, but of the decedent who chose to make a transfer inter vivos which, in respect to taxation, the law disregards. Since the decision in Keith v. Johnson, it may be doubted whether the deduction of such taxes would ever have been allowed to beneficiaries if all the implications of the allowance had been fully weighed. It is evident that because of the decisions in Keith v. Johnson and United States v. Mitchell, supra," }, { "docid": "21093361", "title": "", "text": "payable out of the gross estate; that if because of exemption from, or other ground of nonliability, any part of the statutory gross estate passes to beneficiaries free from debts, it passes for tax purposes without the benefit of their deduction. The Board of Tax Appeals rejected this view. It held that the claims were to be deducted at their face, citing Commissioner of Internal Revenue v. Strauss (C.C.A.) 77 F.(2d) 401, and Union Guardian Trust Co., Administrator, v. Com’r, 32 B.T.A. 996. There may now be added O’Donnell v. Commissioner, 35 B.T.A. 251. The decisions cited by the Board insist rightly that the words of the act must be followed rather than a supposed intent not expressed by them. Where the words of a tax act have a sensible meaning, they are controlling. A real doubt as to their meaning is given in favor of the taxpayer. There seems to us no difficulty regarding, no real doubt concerning, the meaning of the words of the statute which-are important here. Section 301 (a), Revenue Act 1926, 26 U.S.C.A. § 410, reads: “A tax equal to the sum of the following percentages of the value of the net estate (determined as provided in sec. 303 [sections 411 and 412]) shall be imposed upon the transfer of the net estate of every decedent.” Section 303, as amended in 1932, 47 Stats, p. 280 (26 U.S.C.A. § 412 and note), so far as here material is: “For the purpose of the tax the value of the net estate shall be determined * * * (a) In the case of a resident, by deducting from the value of the gross estate— Such amounts (1) for funeral expenses, (2) for administration expenses, (3) for claims against the estate * * * as are allowed by the laws of the jurisdiction, whether within or without the United States, under which the estate is being administered. * * * The deduction herein allowed in the case of claims against the estate * * * shall, when founded upon a promise or agreement, be limited to the extent" }, { "docid": "3755253", "title": "", "text": "value of the property which death causes to be transmitted and the partial relinquishment of that right by allowing certain deductions to be made from that value before the tax is computed. It is not essential to the validity of an estate tax that all claims which may be enforced against the property should be deducted before making the calculation. Taft v. Commissioner, 304 U.S. 351, 58 S.Ct. 891, 82 L.Ed. 1393, 116 A.L.R. 346; Empire Trust Co. v. Commissioner, 4 Cir., 94 F.2d 307. So Congress, having the power to determine whether to allow certain claims to be deducted before arriving at the base amount on which the tax is to be computed may exercise that power or not and if it does exercise it may do so with whatever uniform restrictions it cares to impose. Whether or not such deductions are allowed, no property not transmitted at death is included in the estate. Compare, Porter v. Commissioner, 2 Cir., 60 F.2d 673; Sheets v. Commissioner, 8 Cir., 95 F.2d 727. A taxpayer has no right in respect to this sort of a deduction except to be treated as others are in like situation. There is no constitutional right to be preserved when such a deduction is allowed or to be denied when it is not. All is within the discretion of Congress and the controlling factor is what the statute requires. Sec. 804 of the 1932 Act makes it abundantly clear that a relinquishment, or promised relinquishment, of dower, shall not in this connection be considered to any extent the kind of consideration necessary for a claim to make it deductible. In so far as that was the consideration the deduction was properly denied. That part of the consideration which was the giving up by the wife of her right to support is also fairly within the phrase “other marital rights in the decedent’s property or estate” though not of the same nature as dower. Nor need it be. We are only concerned with enforcing restrictions upon deductions which Congress has declared. The right of the wife to" }, { "docid": "12737740", "title": "", "text": "(h) of the .Revenue Act of 1926 (26 U.S.C.A. § 491), which is the statutory provision requiring its payment, and while that section does provide that it shall be assessed at the same time as the deficiency in tax and collected as a part of the tax, we agree with the statement of the Board of Tax Appeals in Capital Building & Loan Ass’n v. Commissioner, 23 B.T.A. 848, that “the interest on a tax is not a tax, but is something in addition to the tax.” It thus appears that the payment of $10,-263.50 was a payment of interest. It is we think equally clear that it was a payment of interest on indebtedness of the estate of Charles B. Penrose. The federal estate tax is by the terms of the Revenue Act made a lien upon the decedent’s entire estate and is payable out of the property of the estate even though it may have passed out of the possession of the executor. The tax is, therefore, undoubtedly an obligation or debt of the estate, and while the executor is primarily liable to pay it, it is nevertheless payable by any person who has in his hands property comprising a part of the estate. The defendant, argues, however, that the trust estate created by the decedent’s will for the benefit of the plaintiff was distinct from the decedent’s estate and that the latter alone was indebted for the tax and, therefore, it alone was entitled to deduct the interest paid thereon. To this proposition we cannot accede. In our opinion the testamentary trust created by the decedent’s will was just as much a part of his estate as the fund which the executors retained in their possession. Commissioner v. Beebe (C.C.A.) 67 F.(2d) 662, 92 A.L.R. 862; Commissioner v. Pennsylvania Co., etc. (C.C.A.) 83 F.(2d) 545, 546. In the latter case Circuit Judge Thompson said: “The Commissioner claims that the testamentary trust is not an estate, and that, inasmuch as the taxes were paid by the respondent as trustee and not as executor, they are not deductible. The" }, { "docid": "15638635", "title": "", "text": "was deducted by the trustee, Junius Beebe, in determining the net income of the estate for that year. Junius Beebe had been discharged as executor before the tax was, or could be, assessed; and it was assessed to Junius Beebe as trustee, who was the only person to whom it could be assessed; and was paid by him. Section 23 (e) of the United States Revenue Act of 1928 (26 USCA § 2923 (e), providing that certain taxes are deductible from gross income in determining net income for tax purposes, contains this provision: “For the purpose of this subsection, estate, inheritance, legacy, and succession taxes accrue on the due date thereof, except as otherwise provided by the law of the jurisdiction imposing such taxes, and shall be allowed as a deduction only to the estate,” The Commissioner 'of Internal Revenue seeks to disallow this'tax as a deduction. He claims that under article 154, Treasury Department Regulations 74, such tax can be deducted only by an estate in process of administration, namely, by an executor or administrator of such estate; and that it cannot be deducted, as an expense, by a trustee. The regulation in question reads: “Estate, succession, legacy, or inheritance taxes, imposed by .any State, Territory or possession of the United States, or foreign country, are deductible by the estate, whether by the laws of the jurisdiction exacting them they are imposed upon the right or privilege to transmit or upon the right or privilege of the heir, devisee, legatee, or distributee to receive or to succeed in the property of the decedent passing to him. “The accrual dates of such taxes shall be the due date, thereof, except as otherwise provided by the law of the jurisdiction imposing, them. Where deduction is claimed of any such taxes, the amount thereof and the name of the State, Territory or possession of the United States, or foreign country by which they have been imposed shall be stated in the return.” The Commissioner of Internal Revenue urges that an inheritance tax is to be deductible only by an estate while in" }, { "docid": "9714979", "title": "", "text": "its own appropriate deduction. In this sense the qualifying adjectives “gross” and' “net” are inapplicable to it, and it is in this sense, as denoting an abstract but recognizable taxable entity, that the word “estate” seems to be used in section 23(c). Nor does the history of that section indicate otherwise. Its purpose was said (Report 960, Senate Committee on Finance, 70th Congress, 1st Session, p. 19), to pro.vide “that estate, inheritance, legacy and succession taxes.shall be allowed as deductions only to the decedent’s estate and not to the beneficiary. This is a change in existing law and is a substantial simplification.” Furthermore, there is no sound policy which requires the deduction to be allowed to the beneficiary. The distributions of corpus which he receives are not treated as income .and the tax which he is required to pay in effect is merely a decrease in the corpus transmitted to him.” We are referred to two decisions which hold that under section 23(c) testamentary trusts are entitled to deduct state inheritance taxes, and it is 'argued a fortiori that a revocable trust intended to take effect in possession or enjoyment, at or after the trustor’s death should be entitled to deduct federal estate taxes. Commissioner v. Junius Beebe, Trustee, 1 Cir., 67 F.2d 662, 92 A.L.R. 862, and Commissioner v. Pennsylvania Company for Insurance, etc., 3 Cir., 83 F.2d 545. But the trust in each case was created by will and decision was based tipon the circumstance that the trust derived its powers from the will of the decedent and was therefore the decedent’s estate, whether the person charged with its administration was administrator, executor, or testamentary trustee. The present trust was created by the decedent during his lifetime. The trust estate was severed from the decedent’s personal estate, subject it is true to a reserved power of revocation, but severed notwithstanding Unless and until such power was exercised. Upon the death of the decedent the trust powers became absolute, but by virtue of the trust instrument and not of the will. The conclusion that a revocable living trust is" }, { "docid": "4524301", "title": "", "text": "amount fixed, in lieu of dower, on the death of the husband, is not to be doubted, but it does not follow that it was, under a proper interpretation of the Revenue Act of 1926, a claim deductible from the gross estate of decedent, before the calculation of the tax. The authorities relied upon by the petitioners deal with taxing acts where the words used are different from the words used in the act of 1926, or are cases where the facts are different from the facts here, and are not controlling. It is contended on behalf of the petitioners that if any ambiguity exists in the meaning of the 1926 act, such ambiguity should be resolved in favor of the taxpayer under the general doctrine that tax laws are strictly construed in favor of the taxpayer. Burnet v. Moore Cotton Mills Company, 4 Cir., 49 F.2d 59; Crooks v. Harrelson, 282 U.S. 55, 51 S.Ct. 49, 75 L.Ed. 156. Here the rule is not applicable for the reason that petitioners seek a deduction. Deductions are matters of legislative grace, and one seeking a deduction must show that he comes clearly within the terms of the statute allowing it. New Colonial Ice Co. v. Helvering, 292 U.S. 435, 54 S.Ct. 788, 78 L.Ed. 1348; Woolford Realty Co. v. Rose, 286 U.S. 319, 52 S.Ct. 568, 76 L.Ed. 1128. The arrangement entered into between the executors of the decedent’s estate and the widow through which, on the payment of interest, she waived, for the period of one year, the payment of the amount due under the antenuptial agreement, in no way affects the issue here under consideration. The Commissioner was right in disallowing the deduction and the decision of the Board of Tax Appeals is affirmed." }, { "docid": "8985212", "title": "", "text": "taxable to the legatee. But in the instant case the will provided for no payment of gain to legatees, and no payment was made to them prior to the award of the Orphans Court, which distributed the amount in the hands of the executor, not as corpus and gain, but as corpus — the residue of the Estate of Robert S. Frazer. Under these facts the court is of opinion that deduction of tax upon the gain to the estate while in his hands was not allowable to the executor under Sections 161 and 162 of the Revenue Act of 1936, 26 U.S.C.A. Int.Rev.Code, §§ 161, 162, as income tax upon such gains was not chargeable to the legatees. See Burnet v. Whitehouse, 283 U.S. 148, 51 S.Ct. 374, 75 L.Ed. 916, 73 A.L.R. 1534; Sanborn v. Com missioner, 8 Cir., 88 F.2d 134, 138; Id., 301 U.S. 700, 57 S.Ct. 930, 81 L.Ed. 1355; Weigel v. Commissioner, 7 Cir., 96 F.2d 387, 391, 117 A.L.R. 366; Anderson’s Estate v. Commissioner, 9 Cir., 126 F.2d 46; Maguire v. Commissioner, 313 U.S. 1, 4, 61 S.Ct. 789, 85 L.Ed. 1149. The pertinent sections of the Revenue Act of 1936, 49 Stat. 1648, § 22(b) (3), § 161(a) and (b), and § 162(b) and (c) are appended hereto. Statutes Involved Revenue Act of 1936, c. 690, 49 Stat. 1648: “§ 22. Gross income * * * * * * “(b) Exclusions from gross income. The following items shall not be included in gross income and shall be exempt from taxation under this title [chapter] : ^ ^ ^ “(3) Gifts, bequests, and devises. The value of property acquired by gift, bequest, devise, or inheritance (but the income from such property shall be included in gross income)”. “Supplement E — Estates And Trusts “§ 161. Imposition of tax “(a) Application of tax. The taxes imposed by this title [chapter] upon individuals shall apply to the income of estates or of any kind of property held in trust, including— “(1) Income accumulated in trust for the benefit of unborn or unascertained persons or persons" } ]

[ { "docid": "21527726", "title": "", "text": "be found, generally, that special equities have arisen from the fact that the work upon the improvements had been completed, the value enhanced, or the benefit which might accrue to the property included by court or viewers in the amount of the awards before the title to the land condemned had passed to the eon-demner. Otherwise the rule of protection, that a lienholder may have his lien satisfied out of a fund awarded and paid into court as a substitute for the land taken, extends to judgment liens, tax liens, and the like, and ‘applies only to lienholders or creditors of the interest taken or affected, and to liens existing at the time the property is taken.’ 20 Corp. Jur. p. 855, par. 290. See, also, In re Torchia (O. C. A. 3) 188 F. 207.” Applying the foregoing rules to the facts before us, we find (1) that, as correctly held by the trial eourt, the city has, at no time, had a lien upon the lands involved; nor can it establish an enforceable lien by reassessment. (2) The condemnation proceeding of the United States was brought under chapter 41, Mason’s Minnesota Statutes for 1927 (section 6537 et seq.), and under provisions of the Conformity Act of Aug. 1, 1888, 25° Stat. 357, set out in 40 USCA §§ 257 and 258. City of St. Paul v. Certain Lands, etc., (C. C. A. 8) 48 F.(2d) 805. It is governed, therefore, by the laws of Minnesota relating to such proceedings; and, in such, in Minnesota, the title passes upon payment of the award, and in all cases relates back to the date of filing the award by the commissioners. The taking occurs at the date of filing. Dunnell’s Minnesota Digest (1st Ed.) Vol. 1, p. 659; § 3016, and cases cited; State ex rel. City of St. Paul v. Chicago, St. P., etc., R. Co., 85 Minn. 416, 89 N. W. 1; Ford Motor Co. v. Minneapolis, 147 Minn. 211, 179 N. W. 907; McRostie v. City of Owatonna, 152 Minn. 63, 188 N. W. 52. This status has" } ]

[ { "docid": "22073787", "title": "", "text": "those proceedings is governed by Federal Rule of Civil Procedure 71A. In brief, Rule 71A requires the filing in federal district court of a “complaint in condemnation,” identifying the property and the interest therein that the United States wishes to take, followed by a trial — before a jury, judge, or specially appointed commission — of the question of how much compensation is due the owner of the land. The practical effect of final judgment on the issue of just compensation is to give the Government an option to buy the property at the adjudicated price. Danforth v. United States, 308 U. S. 271, 284 (1939). If the Government wishes to exercise that option, it tenders payment to the private owner, whereupon title and right to possession vest in the United States. If the Government decides not to exercise its option, it can move for dismissal of the condemnation action. Ibid.; see Fed. Rule Civ. Proc. 71A(i)(3). A more expeditious procedure is prescribed by 40 U. S. C. §258a. That statute empowers the Government, “at any time before judgment” in a condemnation suit, to file “a declaration of taking signed by the authority empowered by law to acquire the lands [in question], declaring that said lands are thereby taken for the use of the United States.” The Government is obliged, at the time of the filing, to deposit in the court, “to the use of the persons entitled thereto,” an amount of money equal to the estimated value of the land. Title and right to possession thereupon vest immediately in the United States. In subsequent judicial proceedings, the exact value of the land (on the date the declaration of taking was filed) is determined, and the owner is awarded the difference (if any) between the adjudicated value of the land and the amount already received by the owner, plus interest on that difference. Finally, Congress occasionally exercises the power of eminent domain directly. For example, when Congress thinks that a tract of land that it wishes to preserve inviolate is threatened with imminent alteration, it sometimes enacts a statute appropriating" }, { "docid": "12201573", "title": "", "text": "and streets in condemnation proceedings is well settled. The fundamental principle is that the public authority charged with furnishing and maintaining the public way, whether it be a highway, a street, or a bridge, must be awarded the ‘actual money loss which will be occasioned by the condemnation * * * ’ This amount is usually the cost of furnishing and constructing substitute roads. [Many cases cited].” [Emphasis supplied] In the instant case, with the land 20 or more feet under water at the time of the taking, there was scarcely any likelihood that the appellant would be called upon to build substitute highways for those that were condemned. The language in United States v. Certain Parcels of Land, D.C.Md., 54 F.Supp. 667, 671, affirmed sub. nom. Mayor and City Council of Baltimore v. United States, supra, is quite apposite here: “Unless and until the Federal Government abandons its public use of the property and deeds it back to private owners or to the City, there is no showing of any need for alleys, streets or other ways except such as the Federal Government or its licensees may require.” C. The Benedict Case. The appellant relies most heavily upon the opinion in United States v. Benedict, 2 Cir., 280 F. 76, 80, 82, 83, affirmed on other grounds, 261 U.S. 294, 43 S.Ct. 357, 67 L.Ed. 662. Properly to evaluate that decision and its affirmance, we must examine its facts and the grounds upon which the writs of error were granted by the Supreme Court. William C. Langley by will conveyed a considerable body of land in Brooklyn, consisting both of upland and land under water, into trust with a power of sale. In compliance with that power, the trustees of the-Langley estate conveyed certain portions of the property to the City o'f New York to be used as streets. The so-called streets were never opened or used as highways. Thereafter the United States, under the Lever Act, 40 Stat. 276, in “a summary species of what are commonly called condemnation proceedings,” acquired title to the Langley realty, including the" }, { "docid": "23495204", "title": "", "text": "FRED M. TAYLOR, District Judge. This is a condemnation action involving a small peninsula of sandy real estate on the coast of Marin County, California, commonly known as Limantour Spit, some 45 miles north of the city of San Francisco on the Pacific Coast. Appellee (Drake’s Beach) claims title through a patent of the United States to Andrew Randall issued June 4, 1860. The Government contends that the land in question was not included in the patent. These proceedings had their inception when the United States purchased from Drake’s Beach some 850 acres adjacent to this parcel of land for the Point Reyes National Seashore Project. As a part of that purchase agreement the United States agreed to institute this condemnation proceeding against the parcel in question which the United States claimed it owned. Pursuant to the condemnation proceedings, the parcel of land was taken by the Government on October 23,1963. The trial of the issues was bifurcated, the issue as to title was tried to the court, without a jury, and subsequent to the court’s finding title in Drake’s Beach, the issue of just compensation for the taking was tried to the court and a jury which lasted about 12 weeks. The jury returned a verdict for $700,000 as the just compensation which was considerably more than the Government’s evidence of value and substantially less than what Drake’s Beach contended it should have as just compensation. The final judgment was entered on May 7, 1970, from which the Government appealed and Drake’s Beach cross-appealed. The principal issues presented by the Government on its appeal relate to the question of title to the property being condemned and the admissibility of the evidence introduced on behalf of Drake’s Beach in determining market value of the property taken. The issues raised by Drake’s Beach by its cross-appeal relate to the denial of its motion for interest at the prevailing rate rather than the 6% awarded in the judgment; the denial of Drake’s Beach’s motion for just compensation to include expenses and disbursements necessarily incurred in defending its title, surveying and determining the" }, { "docid": "4773639", "title": "", "text": "it existed at the time of the payment of the award, was deductible.” No question of time of passage of title was involved in that case. In United States v. 125.71 Acres, D.C.Pa., 54 F.Supp. 193, condemnation proceedings were commenced and possession taken of the land in August of 1939. In December of 1943, the amount of the verdict was paid into the registry of the court. The court held that title did not vest in the United States until the latter date, and that taxes accruing in the interim were liens payable out of the fund deposited by the United States. It appears that no declaration of taking was filed. In United States v. 12,918.28 Acres, D.C., 51 F.Supp. 755, the United States took possession of land on July 3, 1941, and filed its declaration of taking on January 2, 1942. Taxes became a lien on the property on December 20, 1941. The court held that since title remained in the owners until the declaration of talcing was filed, the tax lien attached to the proceeds. I conclude that the fund is subject to liens for taxes assessed prior to the filing of the declaration of taking. The proposed judgment provides for interest at the rate of six percent per annum from July 25, 1942, the date the United States took possession, to March 15, 1945, the date of filing the declaration of taking, on the entire amount of the award, and, following the provisions of section 258a, for interest from March 15, 1945, of six percent per annum on the amount of the award, less the amount deposited with the declaration of taking. Defendants contend that they should have interest at the rate of seven percent from July 25, 1942, to March 15, 1945. Ordinarily this court would feel bound to follow the Federal statute as to the rate of interest constituting just compensation, indicated by the provision ‘for six percent interest after the declaration of taking is filed. However, there is authority permitting the court to use as a measure of interest in condemnation cases the legal" }, { "docid": "22073786", "title": "", "text": "Justice Marshall delivered the opinion of the Court. Title 40 U. S. C. § 257, in conjunction with Rule 71A of the Federal Rules of Civil Procedure, prescribes a procedure pursuant to which the United States may appropriate privately owned land by eminent domain. The central issue in this case is whether the manner in which the value of the land is determined and paid to its owner under that procedure comports with the requirement, embodied in the Fifth Amendment, that private property not be taken for public use without just compensation. i — ( h> The United States customarily employs one of three methods when it appropriates private land for a public purpose. The most frequently used is the so-called “straight-condemnation” procedure prescribed in 40 U. S. C. §257. Under that statute, an “officer of the Government” who is “authorized to procure real estate for the erection of a public building or for other public uses” makes an application to the Attorney General who, within 30 days, must initiate condemnation proceedings. The form of those proceedings is governed by Federal Rule of Civil Procedure 71A. In brief, Rule 71A requires the filing in federal district court of a “complaint in condemnation,” identifying the property and the interest therein that the United States wishes to take, followed by a trial — before a jury, judge, or specially appointed commission — of the question of how much compensation is due the owner of the land. The practical effect of final judgment on the issue of just compensation is to give the Government an option to buy the property at the adjudicated price. Danforth v. United States, 308 U. S. 271, 284 (1939). If the Government wishes to exercise that option, it tenders payment to the private owner, whereupon title and right to possession vest in the United States. If the Government decides not to exercise its option, it can move for dismissal of the condemnation action. Ibid.; see Fed. Rule Civ. Proc. 71A(i)(3). A more expeditious procedure is prescribed by 40 U. S. C. §258a. That statute empowers the Government, “at" }, { "docid": "4424636", "title": "", "text": "time of trial or, as in the present case, the time of the second trial. In comparison, under the Declaration of Taking Act, 40 U.S.C. § 258a (1976), the government initiates condemnation proceedings by filing a complaint in condemnation and declaration of taking and depositing a sum of money estimated to be just compensation for the property taken, at which time the title to the property vests in the United States and the right to an award of just compensation vests in the property owner, and the property taken is valued. When the government files only a complaint in condemnation, the title to the property vests in the United States upon payment of the award of just compensation into the district court. See United States v. 341.45 Acres of Land, 542 F.Supp. 482, 483 n. 1 (D.Minn.1982) (order denying property owners’ motion for costs, attorney’s fees and litigation expenses; on appeal herein). . The Honorable Elsijane T. Roy, United States District Judge for the Eastern and Western Districts of Arkansas. . It appears from the designated record filed on appeal that the amount requested for attorney’s fees and expenses in connection with the litigation was approximately $18,000. . Other sections of the EAJA provided for the award of attorney’s fees and expenses in connection with administrative proceedings, EAJA, § 203(a), 94 Stat. 2325 (amending 5 U.S.C. § 504), and repealed the Fed.R.Civ.P. 37(f) prohibition against awarding attorney's fees and expenses against the United States as a discovery sanction, EAJA, § 205(a), 94 Stat. 2330. . The EAJA also requires \"parties\" to meet certain financial requirements in order to invoke its provisions, but these financial requirements are extremely generous. 28 U.S.C. § 2412(d)(2)(B) (Supp. V 1981) (if an individual, prevailing party's net worth must not exceed $1 million; if sole owner of unincorporated business or partnership, corporation, association, or organization, net worth must not exceed $5 million, except for charitable organizations exempt from taxation under 26 U.S.C. § 501(c)(3) and agricultural cooperative associations, or have more than 500 employees). . 42 U.S.C. § 4654(a) provides: (a) The Federal court having jurisdiction" }, { "docid": "4773638", "title": "", "text": "subject to such liens, and I can find no authority for such procedure. Defendants cite United States v. 25,936 Acres of Land, More or Less, in Edgewater, Bergen County, N. J., D.C., 57 F.Supp. 383, from which case an appeal by the United States is now pending, wherein the New Jersey Court refused to deduct from the fund taxes which were due but had not become a lien against the land at the time of payment. Under the New Jersey statute taxes assessed during the year did not become a lien against the land until December 31 of that year. The court held that the Government took the land subject to an “inchoate lien” for taxes. In California taxes become a lien at the time of their assessment. The present case would fall within the express exception stated in Empress Mfg. Co. v. City of Newark, 109 N.J. Law 131, 160 A. 388, 389, cited by the New Jersey District Court: “We may assume, for the purpose of this discussion, that the tax lien, if it existed at the time of the payment of the award, was deductible.” No question of time of passage of title was involved in that case. In United States v. 125.71 Acres, D.C.Pa., 54 F.Supp. 193, condemnation proceedings were commenced and possession taken of the land in August of 1939. In December of 1943, the amount of the verdict was paid into the registry of the court. The court held that title did not vest in the United States until the latter date, and that taxes accruing in the interim were liens payable out of the fund deposited by the United States. It appears that no declaration of taking was filed. In United States v. 12,918.28 Acres, D.C., 51 F.Supp. 755, the United States took possession of land on July 3, 1941, and filed its declaration of taking on January 2, 1942. Taxes became a lien on the property on December 20, 1941. The court held that since title remained in the owners until the declaration of talcing was filed, the tax lien attached to" }, { "docid": "12195480", "title": "", "text": "Taking and depositing the amount of estimated compensation for the property into the registry of the court. United States v. 1,060.-92 Acres of Land, More or Less, in Miller County, State of Arkansas, 215 F.Supp. 811 (D.C.Ark.1963); United States v. 53¼ Acres of Land, More or Less, in Borough of Brooklyn, 176 F.2d 255 (2 Cir. 1949); United States v. Certain Parcels of Land in Prince Georges County, Md., 40 F.Supp. 436 (D.C.Md.1941). It is the petitioner’s contention that the laws of the State of Minnesota are determinative of the question of when title vests in the Government in federal condemnation proceedings. In this connection, it is contended that title does not vest in the Government until an agreement of the parties, or the amount of final compensation for the condemned property has finally been determined, relying on Drake v. City of St. Paul, 65 F.2d 119 (8 Cir. 1933). The Drake case held that under the then existing condemnation statute, vesting of title was governed by Minnesota law and did not become effective until payment of the award. It then related back to the date when the Commissioners filed their award. However, it is clear that the Drake case arose under the so-called “Conformity Act” (Act of August 1,1888 c. 728, 25 Stat. 357) which made state rules of ^procedure applicable in federal condemnation proceedings. Subsequently, on August 1, 1951, this rule was abrogated by Rule 71 F.R.Civ.P. which made the Federal Rules of Civil Procedure applicable to condemnation proceedings. 6 Nichols, 3 Ed. 1953, c. XXVII § 27.2 pages 291-293. The Federal Declaration of Taking Act, supra, under which condemnation proceedings in the present case were brought, is a supplemental condemnation statute, permissive in nature, and designed to permit prompt acquisition of title by the United States, pending confirmation proceedings, upon a deposit in court. 6 Nichols, supra at 296. Clearly Drake did not involve condemnation proceedings brought under the Federal Declaration of Taking Act, and is not applicable in this proceeding. There being no question as to the vesting of title at the time of the taking" }, { "docid": "22789487", "title": "", "text": "few months later the Government amended its petition to name additional parties, including Dow, who were alleged to be asserting an interest in the land. The question of compensation was referred to commissioners under the Texas practice, which at that time was applicable to federal condemnation proceedings. See United States v. Miller, 317 U. S. 369, 379-380. After a hearing, at which Dow appeared, the commissioners, in 1948, awarded $4,450 for imposition of the pipe-line easement. After a lengthy unexplained delay in the proceedings, the Government in May 1955 filed a motion for summary judgment against Dow. In March 1956 the District Court granted this motion and dismissed Dow as a party. The District Court found as a fact that Dow’s grantors had intended to convey to him “all their right, title and interest in the said Parcel No. 1 or in the award to be made for the same.” It then went on to rule that under the Assignment of Claims Act, 31 U. S. C. § 203, this was a prohibited assignment of a claim against the United States, and that the deed was therefore ineffective to convey to Dow the compensation award. The Court of Appeals reversed, holding that no assignment was involved because no claim to compensation against the United States “arose and vested” until the filing of the declaration of taking in 1946, and that, because Dow by that time had become owner of the land, he was entitled to the award. 238 F. 2d 898. Because the question presented bears importantly on rights resulting from federal condemnation proceedings, we granted the Government’s petition for certiorari. 353 U. S. 972. It is well established, as the Court of Appeals recognized, that the Assignment of Claims Act prohibits the voluntary assignment of a compensation claim against the Government for the taking of property. United States v. Shannon, 342 U. S. 288. In view of the express finding of the District Court that Dow’s grantors intended to convey to him their right to the condemnation award, we think that the transfer of the claim in this case" }, { "docid": "5388132", "title": "", "text": "PHILLIPS, Chief Judge. On June 28, 1951, the United States brought this action to condemn an 80 acre tract of land situated in Alfalfa County, Oklahoma, about nine miles northeasterly of the town of Cherokee. Following the Oklahoma state procedure, which was applicable at the time, the court, on July 19, 1951, appointed Clarence Bassett, Carl Dunnington and J. Robert Reneau, all residents of Cherokee, as commissioners to appraise and fix the value of the land and to determine the amount of compensation to which the owners were entitled. On July 24, 1951, the -court entered an order adjudging the title to the land to be in Bruce E. Wallace and P.. R. Barita. On August 13, 1951, tlie commissioners filed their report, in which they fixed the fair market value of the land and the amount of the award to the owners at $10,000. Rule 71A of the Federal Rules of Civil Procedure, 28 U.S.C., relating to condemnation proceedings, became effective August 1, 1951. On August 15, 1951, the United States filed a notice demanding a trial by jury, under such rule. A pre-trial conference on this demand was had on October 18, 1951. Thereafter, the court made an order, dated October 18, 1951, but not filed until January 21, 1952, which recites: “ * * * the court being fully advised finds that in the interest of justice the issues of compensation as to the tract of land hereinafter described and involved in this proceeding shall best 'be determined by a Commission .of three (3) persons appointed by this Court.” The order appointed Bassett, Dunnington and Reneau as the comriiissioners to determine the issue of just compensation. Counsel for the United States approved the order as to form and made no objection to the appointment of such persons'as commissioners. The matter -came on for hearing before the commissioners on March 4, 1952, at Cherokee, Oklahoma. At the commencement of the hearing, counsel for the United States interposed an objection to the commissioners acting in the proceeding, for the reason that they had already viewed the property, made an" }, { "docid": "12195481", "title": "", "text": "payment of the award. It then related back to the date when the Commissioners filed their award. However, it is clear that the Drake case arose under the so-called “Conformity Act” (Act of August 1,1888 c. 728, 25 Stat. 357) which made state rules of ^procedure applicable in federal condemnation proceedings. Subsequently, on August 1, 1951, this rule was abrogated by Rule 71 F.R.Civ.P. which made the Federal Rules of Civil Procedure applicable to condemnation proceedings. 6 Nichols, 3 Ed. 1953, c. XXVII § 27.2 pages 291-293. The Federal Declaration of Taking Act, supra, under which condemnation proceedings in the present case were brought, is a supplemental condemnation statute, permissive in nature, and designed to permit prompt acquisition of title by the United States, pending confirmation proceedings, upon a deposit in court. 6 Nichols, supra at 296. Clearly Drake did not involve condemnation proceedings brought under the Federal Declaration of Taking Act, and is not applicable in this proceeding. There being no question as to the vesting of title at the time of the taking and the depositing in court of the estimated fair value of the acquired realty, the sole question remaining for our disposition, in this connection, is whether or not the vesting of title, in this manner, constitutes a “sale” within the meaning of § 337(a), supra. It is now well settled that § 337 (a)’, supra, applies in a like manner to both voluntary and involuntary conversions. Thus it was stated in Towanda Textiles, Inc. v. United States, 180 F.Supp. 373, 376 (Ct.Cl.1960): “The taxation of the gain derived from an involuntary conversion of the property into cash during liquidation is clearly contrary to the declared purpose of Congress in enacting the section (337), which was to avoid double taxation incident to the liquidation of a corporation, by exempting the corporation from liability for gain derived from the disposition of its capital assets, irrespective of whether or not certain formalities had been observed. Literally, an involuntary conversion is not a sale but what Congress had in mind was a conversion of a corporation’s capital assets into" }, { "docid": "8043845", "title": "", "text": "the same in the persons entitled thereto, to be ascertained by the court in accord with their respective interests, Section 258a, and that action irreyopably commits the United States to payment of the ultimate award. Section 258c,and Section 258e. Constitutionality of the act is upheld upon the reasoning that title to the land vests in the Government and the right to just compensation for what is taken in the persons entitled thereto. Clearly under provisions of the statute, condemnation is effected and title completely vested in the Government by the mere filing of a declaration of taking and a judgment adjudging title in the United States is wholly unnecessary. Such is the statutory mandate. It follows that from and after the vesting of title, the Government can be divested only by virtue of appropriate congressional authorization and not by an amended taking. United States v. 16,572 Acres of Land et al., D.C., 45 F.Supp. 23. Consequently the proceeding may not be subsequently abandoned so as to deprive the owner whose property has been taken of his constitutional right to have the damages assessed and paid in money. United States v. 16,572 Acres of Land et al., D.C., 45 F.Supp. 23; South Carolina State Highway Dept. v. Bobotes, 180 S.C. 183, 185 S.E. 165, 121 A.L.R. 12, 17, 24; United States F. & G. Co. v. City of Asheville, 4 Cir., 85 F.2d 966; Buffalo Valley Realty Co. v. State; 273 N.Y. 319, 7 N.E.2d 247; Goodman v. City of Bethlehem, 1936, 323 Pa. 58, 185 A. 719; Kahlen v. State, 1918, 223 N.Y. 383, 119 N.E. 883; In re City of Syracuse, 1918, 224 N.Y. 201, 120 N.E. 203; In re State Highway Commissioner, 252 Mich. 116, 233 N.W. 172, 175, 176; Nichols, Law of Eminent Domain, (2nd Ed.) Vol. II, par. 417, 436. But the Government insists that the easement was never taken and that, hence, the Government acquired no title thereto and defendant no right to compensation and that the latter was, therefore, properly dismissed out of the proceeding. Obviously whether this contention is correct must be determined" }, { "docid": "12195479", "title": "", "text": "if the owners of the property has executed deeds thereto. It is well settled that when property is acquired by the Federal Government in condemnation proceedings, the Federal Declaration of Taking Act (Act of February 26, 1931, c. 307, 46 Stat. 1421 §§ 1-4-40 U.S. 1958 Ed. § 258a-258d is applicable. Significantly,' for our purpose, § 1 of said Act provides in relevant part that: “Upon the filing of said declaration of taking and of the deposit in the court * * * of the amount of the estimated compensation stated in said declaration, title to the said lands * * shall be deemed to be condemned and taken for the use of the United States, and the right tc just compensation for the same shall vest in the persons entitled thereto * * * ” Thus the statute is clear to the effect that the United States became the owner of the condemned realty on July 6, 1956, when it instituted condemnation proceedings in the United States District Court, by filing its Declaration of Taking and depositing the amount of estimated compensation for the property into the registry of the court. United States v. 1,060.-92 Acres of Land, More or Less, in Miller County, State of Arkansas, 215 F.Supp. 811 (D.C.Ark.1963); United States v. 53¼ Acres of Land, More or Less, in Borough of Brooklyn, 176 F.2d 255 (2 Cir. 1949); United States v. Certain Parcels of Land in Prince Georges County, Md., 40 F.Supp. 436 (D.C.Md.1941). It is the petitioner’s contention that the laws of the State of Minnesota are determinative of the question of when title vests in the Government in federal condemnation proceedings. In this connection, it is contended that title does not vest in the Government until an agreement of the parties, or the amount of final compensation for the condemned property has finally been determined, relying on Drake v. City of St. Paul, 65 F.2d 119 (8 Cir. 1933). The Drake case held that under the then existing condemnation statute, vesting of title was governed by Minnesota law and did not become effective until" }, { "docid": "3288567", "title": "", "text": "However, in that case the ruling was that the landowners have a right given them by the Seventh Amendment to a jury trial of the sum to be awarded in expropriation proceedings. That there is such right,, under the laws then and now in force, in the government, was not decided, and could not have been decided in that ease. It necessarily follows that the Beatty Case does not control this court in respect to the present motion. By Act of Congress of August 1,1888, e. 728 (25 Stats. 357 [Comp. St. §§ 6909, 6910]), “An act to authorize condemnation of land for sites of public buildings, and for other purposes,” the procedure to be followed is in section 2 (Comp. St. § 6910), thus prescribed: “The practice, pleadings, forms and modes of proceeding in causes arising under the provisions of this act shall conform, as near as may be, to the practice, pleadings, forms and proceedings existing at the time in like causes in the courts of record of the State within which such circuit or district courts are held, any rule of the court to the contrary notwithstanding.” In United States v. Chichester (D. C.) 283 F. 650, I have stated the reasons for believing that the statute above quoted requires that the procedure set out in chapter 176, Code 1919, be followed, as near as may be, in federal condemnation suits in this court. The procedure under chapter 176 of the Code of Virginia of 1919 is that the court appoints commissioners to view the land as often as-may be necessary, and that no jury trial is authorized in any event. The Seventh Amendment is part of -[he federal Bill of Rights. Robertson v. Baldwin, 165 U. S. 275, 281, 17 S. Ct. 326, 41 L. Ed. 715; Cooley Const. Lim. (5th Ed.) top pages 313-316. The first ten amendments were intended to protect the people from governmental aggressions, and it is, to my mind, a mere perversion of the purpose and intent of the Seventh Amendment to contend that it gives the government a right to" }, { "docid": "12195478", "title": "", "text": "Tax Court was correct in its decision that the acquisition of the corporate real property by condemnation by the United States under the Federal Declaration of Taking Act, supra, constitued a “sale or exchange” within the provisions of § 337 (a) Internal Revenue Code of 1954, at the time the declaration of taking was filed in court and a sum of money deposited to cover the estimated compensation for the acquired property. When the Government has complied with the preliminary requirements of the condemnation statute, insofar as the title to the property is concerned, it vests exclusively in the Government of the United States, and nothing further remains, except to determine the value of the property; this is determined without regard to the right of the Government to absolute ownership and control of the condemned property. Insofar as the Government of the United States and the property owners are concerned, title to the acquired property is as effectively vested in the Government at the completion of the two above preliminary requirements of the statute as if the owners of the property has executed deeds thereto. It is well settled that when property is acquired by the Federal Government in condemnation proceedings, the Federal Declaration of Taking Act (Act of February 26, 1931, c. 307, 46 Stat. 1421 §§ 1-4-40 U.S. 1958 Ed. § 258a-258d is applicable. Significantly,' for our purpose, § 1 of said Act provides in relevant part that: “Upon the filing of said declaration of taking and of the deposit in the court * * * of the amount of the estimated compensation stated in said declaration, title to the said lands * * shall be deemed to be condemned and taken for the use of the United States, and the right tc just compensation for the same shall vest in the persons entitled thereto * * * ” Thus the statute is clear to the effect that the United States became the owner of the condemned realty on July 6, 1956, when it instituted condemnation proceedings in the United States District Court, by filing its Declaration of" }, { "docid": "22789485", "title": "", "text": "Mr. Justice Harlan delivered the opinion of the Court. The issue in this case arises out of a condemnation proceeding in which the' United States acquired an easement pursuant to its power of eminent domain. The principal question presented is whether the claim to “just compensation” vested in the owners of the land at the time the United States entered into possession of the easement pursuant to court order in 1943 or whether such claim vested in the respondent, Dow, who acquired the land in 1945, at the time the United States filed a declaration of taking in 1946, under the Declaration of Taking Act of February 26, 1931, 46 Stat. 1421, 40 U. S. C. §§ 258a-258e. In March 1943 the United States instituted a condemnation proceeding in the District Court for the Southern District of Texas to acquire a right-of-way for a pipe line over certain lands in Harris County, Texas, owned by the estate and heirs of John F. Garrett and James Bute. Among the lands condemned was Parcel 1, a narrow strip of some 2.7 acres out of a 617-acre tract, the property involved in the present suit. The Government proceeded under various statutes, including the Act of August 1, 1888, 25 Stat. 357, 40 U. S. C. § 257, and Title II of the Second War Powers Act of March 27, 1942, 56 Stat. 176, 177. As requested in the petition, the District Court ordered the United States into the “immediate possession” of this strip. Within the next ten days the United States entered into physical possession and began laying the pipe line through the tract. The line was completed in 1943 and has been iñ continuous use since that time. In November 1945 the 617-acre tract was conveyed to Dow by a general warranty deed which specifically excepted the pipe-line right-of-way as being subject to the condemnation proceedings. In May 1946 the Government filed a declaration of taking, under the Declaration of Taking Act, covering this pipe-line strip. Estimated compensation was deposited in court and judgment on the declaration of taking was entered. A" }, { "docid": "22789486", "title": "", "text": "strip of some 2.7 acres out of a 617-acre tract, the property involved in the present suit. The Government proceeded under various statutes, including the Act of August 1, 1888, 25 Stat. 357, 40 U. S. C. § 257, and Title II of the Second War Powers Act of March 27, 1942, 56 Stat. 176, 177. As requested in the petition, the District Court ordered the United States into the “immediate possession” of this strip. Within the next ten days the United States entered into physical possession and began laying the pipe line through the tract. The line was completed in 1943 and has been iñ continuous use since that time. In November 1945 the 617-acre tract was conveyed to Dow by a general warranty deed which specifically excepted the pipe-line right-of-way as being subject to the condemnation proceedings. In May 1946 the Government filed a declaration of taking, under the Declaration of Taking Act, covering this pipe-line strip. Estimated compensation was deposited in court and judgment on the declaration of taking was entered. A few months later the Government amended its petition to name additional parties, including Dow, who were alleged to be asserting an interest in the land. The question of compensation was referred to commissioners under the Texas practice, which at that time was applicable to federal condemnation proceedings. See United States v. Miller, 317 U. S. 369, 379-380. After a hearing, at which Dow appeared, the commissioners, in 1948, awarded $4,450 for imposition of the pipe-line easement. After a lengthy unexplained delay in the proceedings, the Government in May 1955 filed a motion for summary judgment against Dow. In March 1956 the District Court granted this motion and dismissed Dow as a party. The District Court found as a fact that Dow’s grantors had intended to convey to him “all their right, title and interest in the said Parcel No. 1 or in the award to be made for the same.” It then went on to rule that under the Assignment of Claims Act, 31 U. S. C. § 203, this was a prohibited assignment of" }, { "docid": "17625329", "title": "", "text": "declaration of taking of September 11, 1959, is correct, then the matter of just compensation can be, and apparently has been, settled in the district court. The defendant’s position is based on the Declaration of Taking Act, supra. The text of the act is set forth in the margin and provides, in substance, that in any condemnation action, the Government may, contemporaneously with the filing of the petition or any time prior to judgment, file a declaration of taking covering the lands described in the petition. The declaration must contain certain prescribed statements and descriptions and if, at the time the declaration is filed the United States deposits the estimated compensation for the lands with the court, title in fee simple absolute or some lesser estate, if requested, will then vest in the United States. At the same time, the right to immediately ■receive the estimated compensation vests in the landowner. It has been repeatedly held that under the statute title to the realty vests in the United States immediately upon the filing of a declaration of taking and the payment into the court of the estimated compensation. United States v. Hayes, 2 Cir., 1949, 172 F.2d 677; United States v. 150.29 Acres of Land, More or Less, in Milwaukee County, Wis. et al., 7 Cir., 1943, 135 F.2d 878; U. S. v. Sunset Cemetery Co., 7 Cir., 1942, 132 F.2d 163. It has also been held that the Act does not work an unconstitutional deprivation of property without due process since it provides for the payment of just compensation. City of Oakland v. United States, 9 Cir., 1942, 124 F.2d 959; United States v. 47.21 Acres of Land, Parcel No. 5 et al., D.C.1943, 48 F.Supp. 73; United States v. Eighty Acres of Land in Williamson County, Ill. et al., D.C.1939, 26 F.Supp. 315. In their briefs, the plaintiffs have outlined the theory they intended to advance in their defense of the condemnation action in district court, which, they say, if found to be correct would result in a judgment in their favor. They say that if the district" }, { "docid": "22789490", "title": "", "text": "in 1946 when the Government filed its declaration of taking, but rather when the United States entered into possession of the land in 1943. It follows that the landowners in 1943 were entitled to receive the compensation award and that Dow is not entitled to recover in this action. Broadly speaking, the United States may take property pursuant to its power of eminent domain in one of two ways: it can enter into physical possession of property without authority of a court order; or it can institute condemnation proceedings under various Acts of Congress providing authority for such takings. Under the first method — physical seizure — no condemnation proceedings are instituted, and the property owner is provided a remedy under the Tucker Act, 28 U. S. C. §§ 1346 (a) (2) and 1491, to recover just compensation. See Hurley v. Kincaid, 285 U. S. 95, 104. Under the second procedure the Government may either employ statutes which require it to pay over the judicially determined compensation before it can enter upon the land, Act of August 1, 1888, 25 Stat. 357, 40 U. S. C. § 257; Act of August 18, 1890, 26 Stat. 316, 50 U. S. C. § 171, or proceed under other statutes which enable it to take immediate possession upon order of court before the amount of just compensation has been ascertained. Act of July 18, 1918, 40 Stat. 904, 911, 33 U. S. C. § 594; Title II of the Second War Powers Act of March 27, 1942, 56 Stat. 176, 177 (employed by the Government in the present case). Although in both classes of “taking” cases — condemnation and physical seizure — -title to the property passes to the Government only when the owner receives compensation, see Albert Hanson Lumber Co. v. United States, 261 U. S. 581, 587, or when the compensation is deposited into court pursuant to the Taking Act, see infra, the passage of title does not necessarily determine the date of “taking.” The usual rule is that if the United States has entered into possession of the property prior" }, { "docid": "4424635", "title": "", "text": "States was substantially justified or that special circumstances make an award unjust. 28 U.S.C. § 2412(d)(1)(A); cf. Idaho County, 716 F.2d at 725 n. 18 (waiver of sovereign immunity for costs, fees, and expenses). Conclusion We hold that the EAJA does apply to condemnation actions, that property owners may be prevailing parties for purposes of § 2412(d) by recovering more than the amount offered by the government as just compensation for the property taken, and that the government’s refusal to offer more money as just compensation is substantially justified if its offer is consistent with appraisals upon which the government is reasonably entitled to rely. Accordingly, we reverse and remand the cases to the district courts for further proceedings consistent with this opinion. . The Honorable Miles W. Lord, Chief Judge, United States District Court for the District of Minnesota. . The United States filed only complaints in condemnation in these cases. No monies were deposited with the district court. As noted in the text, the property to be taken is valued as of the time of trial or, as in the present case, the time of the second trial. In comparison, under the Declaration of Taking Act, 40 U.S.C. § 258a (1976), the government initiates condemnation proceedings by filing a complaint in condemnation and declaration of taking and depositing a sum of money estimated to be just compensation for the property taken, at which time the title to the property vests in the United States and the right to an award of just compensation vests in the property owner, and the property taken is valued. When the government files only a complaint in condemnation, the title to the property vests in the United States upon payment of the award of just compensation into the district court. See United States v. 341.45 Acres of Land, 542 F.Supp. 482, 483 n. 1 (D.Minn.1982) (order denying property owners’ motion for costs, attorney’s fees and litigation expenses; on appeal herein). . The Honorable Elsijane T. Roy, United States District Judge for the Eastern and Western Districts of Arkansas. . It appears from the" } ]

[ { "docid": "23489273", "title": "", "text": "threw light upon it.” United States v. Cotter, 60 F.2d 689, at 692 (2d Cir. 1932), cert. denied 287 U.S. 666, 53 S.Ct. 291, 77 L.Ed. 575; see also, United States v. Dardi, 330 F.2d 316, 334-335 (2d Cir. 1964). However, no objection was made to the introduction of the grand jury minutes put in by the Government, and the appellant never moved to have the remaining minutes produced. Under these circumstances there was no affirmative duty on the part of the Government to produce them. United States v. Cotter, supra, 60 F.2d at 692, particularly in view of the absence of any showing of damage or prejudice to the accused. Essentially all of the testimony which the appellant gave to the grand jury consisted of his claims of privilege against self-incrimination. There was virtually no substantive testimony given. We are satisfied that there was no error in this regard. We do not think that there was any impropriety in the fact that the United States Attorney called Irwin to appear before the grand jury. The appellant urges that his grand jury testi mony should have been suppressed because he was a “target” of the investigation and “his testimony was not freely given, all things considered.” It is clear from the minutes of the testimony given by Irwin on January 31, 1964 that he was made fully aware of his constitutional rights to remain silent and to consult with counsel. Furthermore, he was clearly told that he was a subject of the investigation and “that it is highly probable that this Grand Jury * * * may vote an indictment charging you with * * * violations” of 18 U.S.C. § 201. In this circumstance we must, as we did in United States v. Winter, 348 F.2d 204 (2d Cir. 1965) reject the contention that appellant’s rights were violated when he was called to testify. To find otherwise in a case like this, where appellant was fully apprised of his rights, we would “denude that ancient body of a substantial right of inquiry.” United States v. Winter, supra, at 207." } ]

[ { "docid": "22384200", "title": "", "text": "at 462-463; Schneckloth v. Bustamonte, 412 U. S., at 236. “It is said that a witness can protect himself against some of the many abuses possible in a secret interrogation by asserting the privilege against self-incrimination. But this proposition collapses under anything more than the most superficial consideration. The average witness has little if any idea when or how to raise any of his constitutional privileges. ... [I]n view of the intricate possibilities of waiver which surround the privilege he may easily unwittingly waive it.” In re Groban, supra, at 345-346 (Black, J., dissenting). Under such conditions it “would indeed be strange were this Court” to hold that a putative defendant, called before a grand jury and interrogated concerning the substance of the crime for which he is in imminent danger of being criminally charged, is simply to be left to “fend for himself.” Coleman v. Alabama, supra, at 20 (Harlan, J., concurring and dissenting). It may be that a putative defendant’s Fifth Amendment privilege will be adequately preserved by a procedure whereby, in addition to warnings, he is told that he has a right to consult with an attorney prior to questioning, that if he cannot afford an attorney one will be appointed for him, that during the questioning he may have that attorney wait outside the grand jury room, and that he may at any and all times during questioning consult with the attorney prior to answering any question posed. See United States v. Capaldo, 402 F. 2d 821, 824 (CA2 1968), cert. denied, 394 U. S. 989 (1969); United States v. Pepe, 367 F. Supp. 1365, 1369 (Conn. 1973). At least if such minimal protections were present, a putative defendant would be able to consult with counsel prior to answering any question that he might in any way suspect may incriminate him. Thereafter, if the privilege is invoked and contested, a hearing on the propriety of its invocation will take place in open court before an impartial judicial officer, and the putative defendant will there have his counsel present. Harris v. United States, 382 U. S. 162," }, { "docid": "6684231", "title": "", "text": "to truthtelling. Although warnings in both contexts might serve to dissipate any possible coercion or unfairness resulting from a witness’ misim-pression that he must answer truthfully even questions with incriminating aspects, we have never held that they must be given to grand jury witnesses, and we decline to require them here since the totality of the circumstances is not such as to overbear- a probationer’s free will. Id. at 431, 104 S.Ct. at 1144 (internal quotations and citations omitted). In response to the probationer’s argument that he did not expect questions about prior criminal conduct and could not seek counsel prior to attending the meeting, the Court stated that “[the probationer’s] situation was in this regard indistinguishable from that facing suspects who are questioned in noncustodial settings and grand jury witnesses who are unaware of the scope of an investigation or that they are considered potential defendants.” Id. at 432, 104 S.Ct. at 1144. The few circuits that have addressed this issue have likewise been hesitant to require as a matter of constitutional law Miranda-like warnings to suspects appearing before the grand jury. In United States v. Gillespie, 974 F.2d 796 (7th Cir.1992), the witness received the written Advice of Rights form days before the grand jury hearing but did not receive oral warnings immediately before testifying and was not warned that he was a target. He contended that a suspect appearing before a grand jury has a constitutional right to warnings immediately prior to testifying. Relying on Mandujano, Washington, and Murphy, the Seventh Circuit concluded that the written Advice of Rights warning supplied days before the grand jury testimony satisfied any constitutional mandate that may exist. Id. at 803-05. See also United States v. Goodwin, 57 F.3d 815, 817 (9th Cir.1995) (“The key to [the defendant’s] Fifth Amendment protection is that he not feel compelled to testify. The record reflects that [he] was more than adequately instructed that he was under no compulsion whatsoever to make any self-incriminating statements.”); Labbe v. Berman, 621 F.2d 26, 29 (1st Cir.1980) (holding that Miranda warnings not required for suspect testifying at an" }, { "docid": "10099610", "title": "", "text": "the testimony of a grand jury witness suspected of illegal activity could be used against him in a subsequent prosecution for a substantive criminal offense, even though the witness had not been warned prior to giving his grand jury testimony that he was a potential defendant. The Court determined that the warnings which had been given to the defendant, including that he had the right to remain silent and that anything he said could be used against him in court, were adequate to apprise him of his right not to incriminate himself. Accordingly, given the adequacy of the warnings and the circumstances of the grand jury interview, which should have put him on notice that he was a suspect, the defendant need not additionally have been warned that he was a potential defendant. 431 U.S. at 186-90, 97 S.Ct. at 1818-20. . See abo United States v. Yeager, 537 F.2d 835 (5th Cir.1976) (per curiam) (following Manduja-no ’s holding that \"in a perjury prosecution a defendant may not use the privilege against self-incrimination as the basis for suppressing the very grand jury testimony that prompted the perjury charge.\"); United States v. Smith, 538 F.2d 159, 163 (7th Cir.1976) (“'the Government’s failure to give Miranda-type warnings to a grand jury witness, even one as to whom the proceedings have become accusatory, does not bar a perjury prosecution for false testimony before the grand jury.’ ”) (quoting United States v. DiGiovanni, 397 F.2d 409, 412 (7th Cir.), cert. denied, 393 U.S. 924, 89 S.Ct. 256, 21 L.Ed.2d 260 (1968)) (footnote omitted). The Eleventh Circuit, in the in banc decision Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981), adopted as precedent decisions of the former Fifth Circuit rendered prior to October 1, 1981. . Thus, we specifically reserve the question of whether the grand jury testimony of a witness who is later indicted for a substantive offense on the basis of the testimony should be suppressed if an attorney was not made available to the witness upon request. . See United States v. Smith, 538 F.2d 159, 163 (7th Cir.1976)" }, { "docid": "23654261", "title": "", "text": "parenthetically that Ruffin’s constitutional claims directed to the validity of the indictment seem insubstantial, for the Supreme Court has recently noted that “an indictment returned by a properly constituted grand jury is not subject to challenge on the ground that it was based on unconstitutionally obtained evidence.” United States v. Washington, 431 U.S. 181, 185 n. 3, 97 S.Ct. 1814, 1818, 52 L.Ed.2d 238 (1977) (citing United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974); United States v. Blue, 384 U.S. 251, 86 S.Ct. 1416, 16 L.Ed.2d 510 (1966); Lawn v. United States, 355 U.S. 339, 78 S.Ct. 311, 2 L.Ed.2d 321 (1958)). Cf. United States v. Man-dujano, 425 U.S. 564, 96 S.Ct. 1768, 48 L.Ed.2d 212 (1976) (grand jury witnesses, including targets, may be convicted of perjury based on false grand jury testimony even though not advised of fifth amendment privilege against self-incrimination). Moreover, it is now evident that a prosecutor’s failure to issue “target warnings” does not violate any of the witness’s constitutional rights. More particularly, the Supreme Court has recently stated in United States v. Washington, supra, 431 U.S. at 189, 97 S.Ct. at 1820: [W]e do not understand what constitutional disadvantage a failure to give potential defendant warnings could possibly inflict on a grand jury witness, whether or not he has received other warnings. It is firmly settled that the prospect of being indicted does not entitle a witness to commit perjury, and wit- nesses who are not grand jury targets are protected from compulsory self-incrimination to the same extent as those who are. Because target witness status neither enlarges nor diminishes the constitutional protection against compelled self-incrimination, potential defendant warnings add nothing of value to protection of Fifth Amendment rights. . In view of our conclusions that Ruffin was not a target at his March 7 appearance, and that his March 14 appearance, regardless of whether he had at that point become a target, did not advance the government’s tax investigation, Ruffin cannot claim that his indictment, even if it were derived from the answers Ruffin gave at the March" }, { "docid": "22074037", "title": "", "text": "shield against high-handed and arrogant inquisitorial practices. It has survived centuries of controversies, periodically kindled by popular impatience that its protection sometimes allows the guilty to escape punishment. But it has endured as a wise and necessary protection of the individual against arbitrary power, and the price of occasional failures of justice is paid in the larger interest of general personal security. I would hold that a failure to warn the witness that he is a potential defendant is fatal to an indictment of him when it is made unmistakably to appear, as here, that the grand jury inquiry became an investigation directed against the witness and was pursued with the purpose of compelling him to give self-incriminating testimony upon which to indict him. I would, further hold that without such prior warning and the witness’ subsequent voluntary waiver of his privilege, there is such gross encroachment upon the witness’ privilege as to render worthless the values protected by it unless the self-incriminating testimony is unavailable to the Government for use at any trial brought pursuant to even a valid indictment. It should be remarked that, of course, today’s decision applies only to application of the privilege against self-incrimination secured by the Fifth Amendment to the United States Constitution. The holding does not affect the authority of state courts to construe counterpart provisions of state constitutions — even identically phrased provisions — “to give the individual greater protection than is provided” by the federal provision. State v. Johnson, 68 N. J. 349, 353, 346 A. 2d 66, 67-68 (1975). See generally Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489 (1977). A number of state courts have recognized that a defendant or potential defendant called before a grand jury is privileged against the State’s using his self-incriminating testimony to procure an indictment or using it to introduce against him at trial, even in the absence of an affirmative claim of his privilege against self-incrimination. See, e. g., People v. Laino, 10 N. Y. 2d 161, 176 N. E. 2d 571 (1961); State v. Fary, 19" }, { "docid": "16223238", "title": "", "text": "See United States v. Ruffin, 575 F.2d 346, 351 and n.8 (2d Cir. 1978); see generally United States v. Mandujano, 425 U.S. 564, 96 S.Ct. 1768, 48 L.Ed.2d 212 (1975). Whether or not Goodman was in fact a target, and the state of his knowledge of his status, do not raise constitutional implications. It is firmly settled that the prospect of being indicted does not entitle a witness to commit perjury, and witnesses who are not grand jury targets are protected from compulsory self-incrimination to the same extent as those who are. Because target witness status neither enlarges nor diminishes the constitutional protection against compelled self-incrimination, potential defendant warnings add nothing of value to protection of Fifth Amendment rights. United States v. Washington, 431 U.S. 181, 189, 97 S.Ct. 1814, 1820, 52 L.Ed.2d 238 (1976). Even if Goodman was a target at the time of his grand jury questioning he was not pressured, duped or tricked into testifying. Goodman knew that the grand jury was investigating various dealings and transactions of and relating to the Theatre, he knew the Government had knowledge that he was in some way connected to the Theatre, he had an attorney present outside the grand jury room and he was given his Miranda warnings, including being advised of his Fifth Amendment right to refuse to answer incriminating questions. The language of the Supreme Court in United States v. Washington, supra, is controlling here: After being sworn, respondent was explicitly advised that he had a right to remain silent and that any statements he did make could be used to convict him of crime. It is inconceivable that such a warning would fail to alert him to his right to refuse to answer any question which might incriminate him. This advice also eliminated any possible compulsion to self-incrimination which might otherwise exist. To suggest otherwise is to ignore the record and reality. Indeed, it seems self-evident that one who is told he is free to refuse to answer questions is in a curious posture to later complain that his answers were compelled. Moreover, any possible coercion" }, { "docid": "16223239", "title": "", "text": "Theatre, he knew the Government had knowledge that he was in some way connected to the Theatre, he had an attorney present outside the grand jury room and he was given his Miranda warnings, including being advised of his Fifth Amendment right to refuse to answer incriminating questions. The language of the Supreme Court in United States v. Washington, supra, is controlling here: After being sworn, respondent was explicitly advised that he had a right to remain silent and that any statements he did make could be used to convict him of crime. It is inconceivable that such a warning would fail to alert him to his right to refuse to answer any question which might incriminate him. This advice also eliminated any possible compulsion to self-incrimination which might otherwise exist. To suggest otherwise is to ignore the record and reality. Indeed, it seems self-evident that one who is told he is free to refuse to answer questions is in a curious posture to later complain that his answers were compelled. Moreover, any possible coercion or unfairness resulting from a witness’ misimpression that he must answer truthfully even questions with incriminatory aspects is completely removed by the warnings given here. Even in the presumed psychologically coercive atmosphere of police custodial interrogation, Miranda does not require that any additional warnings be given simply because the suspect is a potential defendant; indeed, such suspects are potential defendants more often than not. United States v. Binder, 453 F.2d 805, 810 (C.A.2 1971), cert. denied, 407 U.S. 920, 92 S.Ct. 2458, 32 L.Ed.2d 805 (1972). Id. at 188, 97 S.Ct. at 1819. It could hardly be said that Goodman did not have fair warning of his predicament. United States v. Ruffin, supra at 353. It may have been more appropriate for the United States Attorney’s office not to tell Goodman he was not a target: however, in light of Washington and Ruffin, and the presence of counsel, the warnings given Goodman and his knowledge of the subject of the investigation, this court will not dismiss the Indictment or suppress his testimony. United States v." }, { "docid": "22074028", "title": "", "text": "not understand what constitutional disadvantage a failure to give potential defendant warnings could possibly inflict on a grand jury witness, whether or not he has received other warnings. It is firmly settled that the prospect of being indicted does not entitle a witness to commit perjury, and witnesses who are not grand jury targets are protected from compulsory self-incrimination to the same extent as those who are. Because target witness status neither enlarges nor diminishes the constitutional protection against compelled self-incrimination, potential-defendant warnings add nothing of value to protection of Fifth Amendment rights. Respondent suggests he must prevail under Garner v. United States, supra. There, the petitioner was charged with a gambling conspiracy. As part of its case, the Government introduced Garner’s income tax returns, in one of which he had identified his occupation as “professional gambler,” and in all of which he had reported substantial income from wagering. The Court recognized that Garner was indeed compelled by law to file a tax return, but held that this did not constitute compelled self-incrimination. The Court noted that Garner did not claim his Fifth Amendment privilege, instead making the incriminating disclosure that he was a professional gambler. Garner holds that the Self-Incrimination Clause is violated only when the Government compels disclosures which it knows will incriminate the declarant — that is, only when it intentionally places the individual under “compulsions to incriminate, not merely compulsions to make unprivileged disclosures.” 424 U. S., at 657. But the distinction between compulsion to incriminate and compulsion to disclose what the Government is entitled to know is of no help to respondent; in this case there was no compulsion to do either. In Beckwith v. United States, decided shortly after Garner, we reaffirmed the need for showing overbearing compulsion as a prerequisite to a Fifth Amendment violation. There, the Government agent interrogated the taxpayer for the explicit purpose of securing information that would incriminate him. There, as here, the interrogation was not conducted in an inherently coercive setting; hence the claim of compelled self-incrimination was rejected. (4) . Since warnings were given, we are not" }, { "docid": "12132225", "title": "", "text": "Locklear failed to cooperate with the investigation, he would lose his license to operate as an automobile dealer. Appellant argued that the statements he gave during the 1985 interviews were coerced as a result of this threat. The district court held that no Miranda warnings were required because appellant’s 1985 interviews were non-custodial. The court further found that the government made no threat or inducement which might render appellant’s statements involuntary, and it denied his motion to suppress. II. An individual confronted with potentially incriminating questions ordinarily must assert his Fifth Amendment privilege to avoid self-incrimination. If he answers the questions, his choice is considered voluntary since he was free to claim the privilege, Minnesota v. Murphy, 465 U.S. 420, 429, 104 S.Ct. 1136, 1143, 79 L.Ed.2d 409 (1984), and his statements are admissible in a criminal prosecution. One well-known' exception to this general rule addresses the problem of confessions obtained from suspects during custodial interrogation: [T]he prosecution may not use statements ... stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination____ Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602,1612,16 L.Ed.2d 694 (1966). On appeal, Locklear admits that the 1985 interviews were non-custodial. Thus, the agents’ failure to give him Miranda warnings does not require that Locklear’s remarks be suppressed. Roberts v. United States, 445 U.S. 552, 560, 100 S.Ct. 1358, 1364, 63 L.Ed.2d 622 (1980) (Miranda’s extraordinary safeguard does not apply outside the context of custodial interrogations). The fact that appellant was the target of the investigation does not alter this result. Minnesota v. Murphy, supra, 465 U.S. at 431, 104 S.Ct. at 1144 (mere fact that investigation has focused on a suspect does not trigger the need for Miranda warnings in non-custodial settings). Accord Beckwith v. United" }, { "docid": "23641221", "title": "", "text": "appellee must have had knowledge of a source for heroin. Consequently he was called before the grand jury only to obtain intelligence regarding known heroin sources, consistent with the purposes of the grand jury, and not in an attempt to obtain incriminating or perjurous statements from him. Nevertheless, as concluded by the district court, “the facts of the case belie the government’s protestations of innocent intent with respect to the possibility of future prosecution.” Moreover, the questions tendered by the government attorney simply could have inquired whether Mandujano knew any heroin dealers rather than focusing on whether anyone had ever solicited heroin from him. Moreover, the warnings that were given were not adequate advisement even of the appellee’s Fifth Amendment rights against self-incrimination. As pointed out by the trial court, the questioning attorney “stressed not the right to remain silent, but the requirement that the defendant answer all the questions put to him, with limited exceptions. He did not stress the alternative of the defendant remaining silent in the face of a potentially [here certainly] damaging question.” Under the circumstances of this case, this Court agrees that Mandujano was a putative defendant in custody and was entitled to Miranda warnings. II. REMEDY FOR FAILURE TO GIVE MIRANDA WARNINGS The more difficult issue here is whether the usual remedy for failure to give constitutional warnings, i. e., suppression of the testimony, can ever be employed in a situation where the testimony itself amounted to perjury. Appellant relies heavily on United States v. Orta, 253 F.2d 312 (5th Cir. 1958), to convince us that “[u]nder no circumstances” can a grand jury “witness” commit perjury and then successfully claim that the Constitution affords him protection from prosecution for that crime. Witness Orta was charged with having committed perjury at a grand jury investigation. The district court suppressed Orta’s grand jury testimony, but this Court reversed, broadly stating, supra at 314: “It is clear that the protection of the Fifth Amendment relates to crimes alleged to have been committed before the time when the testimony is sought. A witness, ignorant and uninformed of his" }, { "docid": "11647114", "title": "", "text": "have a good defense to an indictment under 18 U.S.C. § 1001 by construing his statements as an “exculpatory no,” see Paternostro v. United States, 311 F.2d 298 (5th Cir. 1962), is irrelevant in considering whether his statements made him a potential defendant. While there are differences between sections 1001 and 1623, the fact that an essentially similar statement became the basis of a perjury indictment demonstrates that he was at least a potential defendant under section 1001. . See note 3 supra. . It is clear that, in addition to appearing before the grand jury, the defendant would have been required to personally assert his constitutional rights. See, e. g., United States v. Capaldo, 402 F.2d 821 (2d Cir. 1968), cert. denied, 394 U.S. 989, 89 S.Ct. 1476, 22 L.Ed.2d 764 (1969). . As a matter of sound practice, it would seem appropriate to give a potential defendant full Miranda warnings before he testifies in a grand jury proceeding. This case does not require a determination that such a practice is constitutionally compelled. Here, the defendant was not informed of his most basic right — the right against self-incrimination. Whether he was entitled to be informed of that right is the narrow issue raised in this case. . The same question must be answered even if the. Government’s actions here are sanctioned under the court’s supervisory powers. . This indictment charges the defendant only with testifying falsely before the grand jury. Suppression of that testimony necessitates its dismissal, there ■ having been no representation by the Government as to an independent basis for indictment." }, { "docid": "23465086", "title": "", "text": "delay to render his prosecution invalid under the Fifth or Sixth Amendments. No witnesses were lost. - Capaldo was able to give a coherent account of his version of the events on the day of the robbery; he had been interviewed concerning the crime shortly after it was committed and thus was able to fix the day in his mind. He also had the benefit of contemporaneous statements given by the tellers and was able to cross-examine them at the trial. It is usually in the public interest, and frequently to the advantage of the prospective defendant, that charges not be brought until the prosecutor has completed his investigation and feels that there is sufficient likelihood of gaining a conviction. There is no reason to suspect that the government’s delay in this case was unwarranted. II. Alleged Errors in the Admission and Exclusion of Evidence A. Capaldo’s Grand Jury Testimony Appellant claims that his grand jury testimony, part of which was introduced at trial, was obtained in violation of his Fifth Amendment right against self-incrimination and his Sixth Amendment right to counsel because he was a “de facto” defendant at the time of the hearing and because he was not permitted to have counsel with him during the hearing. We disagree. This court has long followed the rule that the Fifth Amendment does not prohibit potential or de facto defendants from being summoned before a grand jury. See, e. g., United States v. Winter, 348 F.2d 204, 207-208 (2 Cir. 1965); United States v. Pappadio, 346 F.2d 5 (2 Cir. 1965). Appearing before a grand jury is not inherently coercive. United States v. Cleary, 265 F.2d 459, 462 (2 Cir.), cert. denied, 360 U.S. 936, 79 S.Ct. 1458, 3 L.Ed.2d 1548 (1959). The facts in this case indicate that Capaldo’s testimony was completely voluntary. When he appeared on April 11, 1967, he was told of the nature of the grand jury proceeding, that he was a potential defendant, that he had a right to remain silent and that his testimony would be recorded and could be used against him. A" }, { "docid": "7589118", "title": "", "text": "check made payable to the American Express Company, Richman was arrested. Richman contends that, while there was evidence to show that he knew the cheek in question was stolen, no evidence was introduced to establish that he knew it was transported in interstate commerce. With respect to Mingoia’s appeal we found that the jury could infer the existence of a connection with interstate transportation required for a conviction on the conspiracy count from the nature of the conspiracy of which Mingoia was a part. The case against Richman is even stronger, since for conviction on the substantive charge proof of knowledge of interstate transportation is not required. United States v. Tannuzzo, 174 F.2d 177, 180 (2d Cir.), cert. denied, 338 U.S. 815, 70 S.Ct. 38, 94 L.Ed. 493 (1949); United States v. Kierschke, 315 F.2d 315 (6th Cir. 1963). Richman also argues that his indictment should have been dismissed because it was based on testimony he gave before the grand jury at a time when he was a target of the grand jury investigation. The grand jury minutes, which appear in the margin, show that appel lant was advised that he was a target of the investigation and that he could decline to answer any questions which might incriminate him. He was therefore a proper witness before the grand jury. United States v. Capaldo, 402 F.2d 821, 823-824 (2d Cir. 1968), cert. denied, 394 U.S. 989, 89 S.Ct. 1476, 22 L.Ed.2d 764 (1969). Moreover Richman testified only that he appeared at the Marine Midland Bank on March 8, 1967, and the grand jury was instructed not to consider his answer. The fact that other co-defendants pleaded guilty during trial did not deprive either appellant of a fair trial. See, e. g., United States v. Dardi, 330 F.2d 316, 323-333 (2d Cir.), cert. denied, 379 U.S. 845, 85 S.Ct. 50, 13 L.Ed.2d 50 (1964); United States v. Crosby, 294 F.2d 928, 948-950 (2d Cir. 1961), cert. denied, sub nom. Mittelman v. United States, 368 U.S. 984, 82 S.Ct. 599, 7 L.Ed.2d 523 (1962). Appellants’ other claims of error are without merit." }, { "docid": "148427", "title": "", "text": "392 (1987); United States v. DePalma, 461 F.Supp. 778, 792-93 (S.D.N.Y.1978). . In his appellate brief, Mr. Medina, who represented the government in the grand jury and at trial, admits that Miranda and target \"warnings were not given to defendant.” Appellee’s Brief at 24. Notwithstanding this written admission in his brief, Mr. Medina told us at oral argument that he had \"asked Mr. Pacheco whether he intended to exercise his privilege not to incriminate himself and he said he was going to testify about everything that he knew.” This backhanded oral suggestion of rights in an unrecorded pre-grand jury conference did not clearly apprise Mr. Pacheco of his target status, or his rights against self-incrimination for that matter. In any event, to the degree this reference to a suggestion of rights is intended to contradict the written admission that no advice of rights was given, we find both contradictory assertions beyond the record. We are accordingly not at liberty to consider them on the merits. See supra notes 1 and 3. For present purposes, we note only that disputes about such matters can be minimized by careful prosecutors who put their warnings on the transcript record of a witness' grand jury testimony. Indeed, it is Department of Justice policy to prescribe such a use of the \"record before the grand jury” to memorialize the advice of rights given targets or subjects of an investigation and the affirmation of such a witness that he or she understands them. United States Attorneys’ Manual 9-11.150. . By contrast, in Babb the prosecutor delivered on the record before the grand jury a warning about the right to remain silent and elicited from Babb an acknowledgment of his understanding about that right. 807 F.2d at 275 n. 3. Apart from the misrepresentation about target status, it is apparent that the prosecutor in Babb observed Department of Justice policy regarding the advice of rights to grand jury witnesses. . It bears noting that frequently targets actually seek out the opportunity to bring their case directly to the grand jury by testifying. Department of Justice guidelines urge" }, { "docid": "23465087", "title": "", "text": "and his Sixth Amendment right to counsel because he was a “de facto” defendant at the time of the hearing and because he was not permitted to have counsel with him during the hearing. We disagree. This court has long followed the rule that the Fifth Amendment does not prohibit potential or de facto defendants from being summoned before a grand jury. See, e. g., United States v. Winter, 348 F.2d 204, 207-208 (2 Cir. 1965); United States v. Pappadio, 346 F.2d 5 (2 Cir. 1965). Appearing before a grand jury is not inherently coercive. United States v. Cleary, 265 F.2d 459, 462 (2 Cir.), cert. denied, 360 U.S. 936, 79 S.Ct. 1458, 3 L.Ed.2d 1548 (1959). The facts in this case indicate that Capaldo’s testimony was completely voluntary. When he appeared on April 11, 1967, he was told of the nature of the grand jury proceeding, that he was a potential defendant, that he had a right to remain silent and that his testimony would be recorded and could be used against him. A properly called and fully warned witness cannot .complain about a statement voluntarily given; having chosen to tell his story he cannot later complain of his failure to assert his privilege to remain silent. Cf. United States v. Winter, 348 F.2d 204, 210-211 (2 Cir. 1965). Likewise, Capaldo’s Sixth Amendment right to counsel claim is without merit. Rule 6(d) of the Federal Rules of Criminal Procedure prohibits defense counsel from entering the grand jury room during the hearing. Capaldo was told, however, that he had a right to counsel and that he would be permitted to consult with counsel immediately outside the grand jury room whenever he so desired. Capaldo chose to proceed without counsel. Having done so he cannot now complain that he has been deprived of his Sixth Amendment rights. The Supreme Court has held that a witness before a grand jury is not entitled to representation by counsel. In re Goban, 352 U.S. 330, 333, and dissenting opinion id. at 346-347 (1957). See also United States v. Scully, 225 F.2d 113, 116 (2" }, { "docid": "18225666", "title": "", "text": "ground of self-incrimination and that in light of this it would be improper for the Government to call Miller before the Grand Jury. The Government, however, claimed that there was no impropriety, and proceeded to call him. When he appeared, Miller was informed that he was a potential defendant, that he might refuse to answer any question where his response might tend to incriminate him, and that he had a right to consult with his lawyer outside the grand jury room at any time he chose. Miller made use of these instructions, and at least one time during his appearance he left the grand jury room to confer with counsel. Miller claims that his fifth and sixth amendment rights have been violated by calling him before the Grand Jury after he had become the target of the investigation and after the United States Attorney had been informed that Miller would assert his privilege under the fifth amendment and refuse to testify. He argues that the only possible purpose or effect of calling him would be to prejudice the deliberations of the Grand Jury. In United States v. Winter, 348 F.2d 204 (2d Cir.), cert. denied, 382 U.S. 955, 86 S.Ct. 429, 15 L.Ed.2d 360 (1965), Judge Weinfeld, sitting by designation in the Court of Appeals, stated that Short shrift may be made of appellant’s claim that the self-incrimination clause of the Fifth Amendment prohibits the Government from ever summoning before a grand jury one who has become a target of inquiry and is a “potential” defendant. * * * [T]he Fifth Amendment does not proscribe the practice here inveighed against. Repeatedly this Court has so ruled, declining to equate the position of a “potential” defendant called before a grand jury with that of one already on trial. Id. at 207. (Footnotes omitted.) See United States v. Cleary, 265 F.2d 459, 460 n. 1 (2d Cir.), cert. denied, 360 U.S. 936, 79 S.Ct. 1458, 3 L.Ed.2d 1548 (1959). Similar results were reached in United States v. Irwin, 354 F.2d 192, 199 (2d Cir. 1965), cert. denied, 383 U.S. 967, 86 S.Ct." }, { "docid": "148406", "title": "", "text": "any Fifth Amendment warnings whatever are constitutionally required for grand jury witnesses.” Washington, 431 U.S. at 186, 97 S.Ct. at 1818; see also Mandujano, 425 U.S. at 582 n. 7, 96 S.Ct. at 1778 n. 7. The United States Department of Justice, however, has continued to make warnings for targets a required policy except in circumstances — not suggested here— where notice might jeopardize the investigation. “Notwithstanding the lack of a clear constitutional imperative, it is the internal policy of the Department [of Justice] that” targets of an investigation be given certain warnings before they testify before the grand jury. United States Attorneys’ Manual 9-11.150. These warnings, which include notice of the right against self-incrimination and the right to consult with counsel outside the grand jury room, are generally appended to all grand jury subpoenas served on any target or subject of an investigation. “In addition, these ‘warnings’ should be given by the prosecutor on the record before the grand jury and the witness should be asked to affirm that the witness understands them.” Id. Moreover, the Justice Department instructs U.S. Attorneys that “[although the [Supreme] Court in Washington, supra, held that ‘targets’ of the grand jury’s investigation are entitled to no special warnings relative to their status as ‘potential defendant^],’ the Department continues its longstanding internal practice to advise witnesses who are known ‘targets’ of the investigation that their conduct is being investigated for possible violation of federal criminal law.” Id. This court, before Washington and Mandujano, had expressed “considerable sympathy” with the approach “of giving at least notice that a witness need not testify if such would incriminate him.” United States v. Chevoor, 526 F.2d 178, 181-82 (1st Cir.1975), cert. denied, 425 U.S. 935, 96 S.Ct. 1665, 48 L.Ed.2d 176 (1976). More recently, in United States v. Babb, 807 F.2d 272 (1st Cir.1986), we assumed that some warning was constitutionally mandated, noting that the defendant there “received all the warnings required by the Constitution.” Id. at 278. See also United States v. Whitaker, 619 F.2d 1142 (5th Cir.1980) (warnings the better practice). The reasons why warnings are appropriate" }, { "docid": "22074026", "title": "", "text": "would fail to alert him to his right to refuse to answer any question which might incriminate him. This advice also eliminated any possible compulsion to self-incrimination which might otherwise exist. To suggest otherwise is to ignore the record and reality. Indeed, it seems self-evident that one who is told he is free to refuse to answer questions is in a curious posture to later complain that his answers were compelled. Moreover, any possible coercion or unfairness resulting from a witness’ misimpression that he must answer truthfully even questions with incriminatory aspects is completely removed by the warnings given here. Even in the presumed psychologically coercive atmosphere of police custodial interrogation, Miranda does not require that any additional warnings be given simply because the suspect is a potential defendant; indeed, such suspects are potential defendants more often than not. United States v. Binder, 453 F. 2d 805, 810 (CA2 1971), cert. denied, 407 U. S. 920 (1972). Respondent points out that unlike one subject to custodial interrogation, whose arrest should inform him only too clearly that he is a potential criminal defendant, a grand jury witness may well be unaware that he is targeted for possible prosecution. While this may be so in some situations, it is an overdrawn generalization. In any case, events here clearly put respondent on notice that he was a suspect in the motorcycle theft. He knew that the grand jury was investigating that theft and that his involvement was known to the authorities. Respondent was made abundantly aware that his exculpatory version of events had been disbelieved by the police officer, and that his friends, whose innocence his own story supported, were to be prosecuted for the theft. The interview with the prosecutor put him on additional notice that his implausible story was not accepted as true. The warnings he received in the grand jury room served further to alert him to his own potential criminal liability. In sum, by the time he testified respondent knew better than anyone else of his potential defendant status. However, all of this is largely irrelevant, since we do" }, { "docid": "148418", "title": "", "text": "investigation. The Supreme Court declined to decide whether a grand jury witness must be warned of his/her Fifth Amendment privilege against compulsory self-incrimination before his/her grand jury testimony can be used against the witness. See United States v. Washington, 431 U.S. 181, 186 and 190-191 (1977); United States v. Wong, 431 U.S. 174 (1977); Mandujano, supra, at 582 n. 7. It is important to note, however, that in Mandujano the Court took cognizance of the fact that federal prosecutors customarily warn “targets” of their Fifth Amendment rights before grand jury questioning begins. Similarly, in Washington the Court pointed to the fact that Fifth Amendment warnings were administered as negating “any possible compulsion to self-incrimination which might otherwise exist” in the grand jury setting. See Washington, supra, at 188. Notwithstanding the lack of a clear constitutional imperative, it is the internal policy of the Department that an “Advice of Rights” form, as set forth below, be appended to all grand jury subpoenas to be served on any “target” or “subject” (as hereinafter defined) of an investigation: Advice of Rights A. The grand jury is conducting an investigation of possible violations of federal criminal laws involving: (State here the general subject matter of inquiry, e.g., the conducting of an illegal gambling business in violation of 18 U.S.C. § 1955). B. You may refuse to answer any question if a truthful answer to the question would tend to incriminate you. C. Anything that you do say may be used against you by the grand jury or in a subsequent legal proceeding. D. If you have retained counsel, the grand jury will permit you a reasonable opportunity to step outside the grand jury room to consult with counsel if you do so desire. In addition, these “warnings” should be given by the prosecutor on the record before the grand jury and the witness should be asked to affirm that the witness understands them. A “target” is a person as to whom the prosecutor or the grand jury has substantial evidence linking him/her to the commission of a crime and who, in the judgment of" }, { "docid": "22074025", "title": "", "text": "U. S. 341 (1976); Schneckloth v. Bustamonte, 412 U. S. 218, 223-227 (1973). Of course, for many witnesses the grand jury room engenders an atmosphere conducive to truthtelling, for it is likely that upon being brought before such a body of neighbors and fellow citizens, and having been placed under a solemn oath to tell the truth, many witnesses will feel obliged to do just that. But it does not offend the guarantees of the Fifth Amendment if in that setting a witness is more likely to tell the truth than in less solemn surroundings. The constitutional guarantee is only that the witness be not compelled to give self-incriminating testimony. The test is whether, considering the totality of the circumstances, the free will of the witness was overborne. Rogers v. Richmond, 365 U. S. 534, 544 (1961). (3) After being sworn, respondent was explicitly advised that he had a right to remain silent and that any statements he did make could be used to convict him of crime. It is inconceivable that such a warning would fail to alert him to his right to refuse to answer any question which might incriminate him. This advice also eliminated any possible compulsion to self-incrimination which might otherwise exist. To suggest otherwise is to ignore the record and reality. Indeed, it seems self-evident that one who is told he is free to refuse to answer questions is in a curious posture to later complain that his answers were compelled. Moreover, any possible coercion or unfairness resulting from a witness’ misimpression that he must answer truthfully even questions with incriminatory aspects is completely removed by the warnings given here. Even in the presumed psychologically coercive atmosphere of police custodial interrogation, Miranda does not require that any additional warnings be given simply because the suspect is a potential defendant; indeed, such suspects are potential defendants more often than not. United States v. Binder, 453 F. 2d 805, 810 (CA2 1971), cert. denied, 407 U. S. 920 (1972). Respondent points out that unlike one subject to custodial interrogation, whose arrest should inform him only too clearly" } ]

[ { "docid": "22168292", "title": "", "text": "stating that she was not disabled when she resigned from Deluxe. On appeal, Woo first asserts that the district court erroneously granted summary judgment on her ERISA claim against Hartford under 29 U.S.C. § 1132(a)(1)(B) and her alternative claim for breach of fiduciary duty against Deluxe under section 1132(a)(3). Woo additionahy contends that she is entitled to costs and attorneys’ fees on her ERISA claims. Finahy, Woo asserts that the district court erroneously granted summary judgment on her contract claim against Deluxe. II. DISCUSSION A. Long-Term Disability Benefits Woo asserts that she is entitled to disability benefits under the LTDP, which is administered by Hartford and governed by ERISA. The district court held that Hartford did not abuse its discretion in concluding that Woo was not disabled when she resigned from Deluxe and granted Hartford’s motion for summary judgment. 1. Standard of Review We review a district court’s grant of summary judgment de novo, viewing the record in the light most favorable to the non-moving party. See Donaho v. FMC Corp., 74 F.3d 894, 897 (8th Cir.1996). Thus, we review de novo the district court’s determination of the appropriate standard of review. ERISA provides a plan beneficiary with the right to judicial review of a benefits determination. See 29 U.S.C. § 1132(a)(1)(B). Where a plan gives the administrator “discretionary authority to determine eligibility for benefits,” we review the administrator’s decision for an abuse of discretion. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). Woo does not dispute that the LTDP provides Hartford with discretionary authority to determine benefit eligibility. Woo asserts that we should not review Hartford’s decision under the traditional abuse of discretion standard because of procedural irregularities and because Hartford has a conflict of interest. To obtain a less deferential review, Woo must present material, probative evidence demonstrating that (1) a palpable conflict of interest or a serious procedural irregularity existed, which (2) caused a serious breach of the plan administrator’s fiduciary duty to her. See Buttram v. Central States, S.F. & S.W. Areas Health & Welfare Fund," } ]

[ { "docid": "14580398", "title": "", "text": "court in turn remand to MetLife with instructions that it obtain the Social Security records and reconsider the claim on the expanded administrative record. Id. at 500. Torres presented no evidence that UNUM denied his claim because it was financially advantageous for it to do so. Accordingly, he has not shown that UNUM’s financial conflict of interest had a sufficient connection to the decision reached to trigger a departure from the abuse of discretion standard. The proce dural irregularities we have discussed present a much closer case of a serious breach of UNUM’s fiduciary duties. However,- cognizant of the considerable hurdle plaintiffs have in reaching this standard and realizing that virtually anything connected to an administrator’s denial of benefits could be said to have “some connection to the substantive decision reached,” Woo, 144 F.3d at 1161, we conclude that UNUM’s decision is not subject to less deferential review. II. Review of an administrator’s decision under an abuse of discretion standard, though deferential, is not tantamount to rubber-stamping the result. On the contrary, we review the decision for reasonableness, which requires that it be supported by substantial evidence that is assessed by its quantity and quality. Phillips-Foster v. UNUM Life Ins. Co. of Am., 302 F.3d 785, 798 (8th Cir.2002); Donaho v. FMC Corp., 74 F.3d 894, 899-901 (8th Cir.1996). Our review employs five factors: (1) whether the administrator’s interpretation is consistent with the goals of the Plan; (2) whether the interpretation renders any language in the Plan meaningless or internally inconsistent; (3) whether the administrator’s interpretation conflicts with the substantive or procedural requirements of the ERISA statute; (4) whether the administrator has interpreted the relevant terms consistently; and (5) whether the interpretation is contrary to the clear language of the Plan. Shelton v. ContiGroup Cos., Inc., 285 F.3d 640, 643 (8th Cir.2002) (citation omitted). UNUM’s failure to consider the side effects of medicine Torres took as prescribed for his cardiac condition and its failure to conduct a vocational evaluation resulted in a decision that can be described as rendering Plan language meaningless or as contrary to clear language of the" }, { "docid": "14580397", "title": "", "text": "We reviewed the trustees’ decision de novo, reversed the judgment, and remanded with directions to enter judgment in favor of the claimant. Id. at 723, 725. In Harden v. Am. Express Fin. Corp., 384 F.3d 498 (8th Cir.2004), the claimant applied for long-term disability benefits and was denied initially and on appeal. MetLife, the plan administrator, required him to apply for Social Security disability in conjunction with his application for plan benefits, and his Social Security application was successful. Id. at 499. MetLife led Harden to believe that his Social Security medical records were part of the administrative record it was considering, but in fact the administrator had never obtained those records. Id. at 499-500. We concluded that its failure amounted to a serious procedural irregularity that raised significant doubts about the decision to deny benefits. Id. Although the Harden case does not set forth how the facts satisfied the second part of the Woo requirement, we concluded that Woo’s less deferential sliding-scale standard of review was appropriate. We remanded with directions that the district court in turn remand to MetLife with instructions that it obtain the Social Security records and reconsider the claim on the expanded administrative record. Id. at 500. Torres presented no evidence that UNUM denied his claim because it was financially advantageous for it to do so. Accordingly, he has not shown that UNUM’s financial conflict of interest had a sufficient connection to the decision reached to trigger a departure from the abuse of discretion standard. The proce dural irregularities we have discussed present a much closer case of a serious breach of UNUM’s fiduciary duties. However,- cognizant of the considerable hurdle plaintiffs have in reaching this standard and realizing that virtually anything connected to an administrator’s denial of benefits could be said to have “some connection to the substantive decision reached,” Woo, 144 F.3d at 1161, we conclude that UNUM’s decision is not subject to less deferential review. II. Review of an administrator’s decision under an abuse of discretion standard, though deferential, is not tantamount to rubber-stamping the result. On the contrary, we review the" }, { "docid": "22284975", "title": "", "text": "conflict of interest. The magistrate judge denied this request. UNUM moved for summary judgment. The district court, acknowledging the conflict of interest, proceeded to interpret the contract language “caused by, contributed to by, or resulting from” as meaning “related to” and “foreseeable complication of’ a pre-existing condition. The district court ruled that the “staph infection [was] related to the coronary artery disease as a foreseeable complication of treatment.” Aplt’s App. at 14. On that basis, the district court granted UNUM’s motion for summary judgment, concluding that UNUM’s decisions to deny Ms. Fought long-term disability benefits were not arbitrary or capricious, and ordered Ms. Fought to pay UNUM’s costs. Ms. Fought now appeals. II. ANALYSIS UNUM’s long-term disability plan is governed by the Employee Retirement and Income Security Act (ERISA), 29 U.S.C. § 1001 et seq. “ERISA was enacted to promote the interests of employees and their beneficiaries in employee benefit plans, and to protect contractually defined benefits.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 113, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989) (citations and internal quotation marks omitted); see also 29 U.S.C. § 1001(b) (“It is hereby declared to be the policy of this chapter to protect ... the interests of participants in employee benefit plans and their beneficiaries ... by establishing standards of conduct, responsibility, and obligation for\" fiduciaries of employee benefit plans.”). In seeking coverage under her long-term disability benefit plan, Ms. Fought advances three arguments. First, she argues that the district court erred by using the wrong standard of review when it reviewed UNUM’s decision. Second, she argues that UNUM’s denial of benefits was, in any event, an unreasonable interpretation under the plan. Finally, she argues that the district court failed to consider UNUM’s obligation to draft plan provisions in a manner calculated to be understood by the average plan participant. We begin with the appropriate standard of review, discussing (1) the current state of the Tenth Circuit’s “sliding scale” standard of review, (2) the application of the sliding scale standard of review in conflict of interest cases, (3) the application of a reduced" }, { "docid": "14580391", "title": "", "text": "that he was not a covered employee and was thus ineligible for disability benefits because he had been fired and no restrictions and limitations were supported as of that date. UNUM’s denial of Torres’s appeal marked the end of his administrative review. Torres filed this action two months later. I. We review de novo the district court’s grant of summary judgment while viewing the record in the light most favorable to Torres. We also review de novo the district court’s determination of the appropriate standard of review of the administrator’s denial of benefits. Barnhart v. UNUM Life Ins. Co. of Am., 179 F.3d 583, 587 (8th Cir.1999). The district court reviewed UNUM’s decision under the abuse of discretion standard that applies when the plan at issue allows the administrator the discretionary authority to determine a claimant’s eligibility for benefits. See Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). Torres concedes that the UNUM plan grants such authority but argues that a less deferential standard is appropriate under Woo v. Deluxe Corp., 144 F.3d 1157, 1160-61 (8th Cir.1998), because he presented evidence demonstrating that a palpable conflict of interest and a serious procedural irregularity existed which caused UNUM to deny Torres benefits. The conflict of interest he asserts is a financial one because UNUM administers and funds the long-term disability plan in which Torres was enrolled. The procedural irregularity he alleges is UNUM’s fail ure to exercise proper judgment in its deliberations as demonstrated by the shortcomings in its' medical and vocational review. UNUM admits that it serves as both insurer and administrator of the long-term disability plan at issue. We have held this to be palpable evidence of a conflict of interest. Farfalla, v. Mut. of Omaha Ins. Co., 324 F.3d 971, 973 (8th Cir.2003); Phillips-Foster v. UNUM Life Ins. Co. of Am., 302 F.3d 785, 795 (8th Cir.2002); Schatz v. Mut. of Omaha Ins. Co., 220 F.3d 944, 947-48 (8th Cir.2000). But see McGarrah v. Hartford Life Ins. Co., 234 F.3d 1026, 1030 (8th Cir.2000) (wrong to assume financial" }, { "docid": "12685478", "title": "", "text": "to determine eligibility for benefits and to construe the terms of the plan. However, the degree of deference to be given the plan administrator’s decision under the abuse-of-discretion standard may vary.” Id. (internal citations omitted). In this case, it is undisputed that the policy at issue gives Unum discretionary authority to determine eligibility for benefits and to interpret the terms and provisions of the policy. Thus, initially, the abuse of discretion standard seems appropriate. “This deferential standard reflects our general hesitancy to interfere with the administration of a benefits plan.” Heaser v. Toro Co., 247 F.3d 826, 833 (8th Cir.2001). However, “[a] plaintiff may obtain a less deferential review by presenting ‘material, probative evidence demonstrating that (1) a palpable conflict of interest or a serious procedural irregularity existed, which (2) caused a serious breach of the plan administrator’s fiduciary duty to her.’ ” Id. (quoting Woo v. Deluxe Corp., 144 F.3d 1157, 1160 (8th Cir.1998)). The alleged conflict or procedural irregularity must have some connection to the substantive decision reached by the plan administrator. Id. “A claimant must offer evidence that ‘gives rise to serious doubts as to whether the result reached was the product of an arbitrary decision or the plan administrator’s whim’ for us to apply the less deferential standard.” Id. (quoting Layes v. Mead Corp., 132 F.3d 1246, 1250 (8th Cir.1998)). Chronister seeks a review standard less deferential to the administrator and argues that a sliding scale of deference is required. Specifically, Chronister alleges Unum operates under a financial conflict of interest in the Baptist Health plan because it both makes the claim determinations and pays the claims. Chronister asserts that this creates a rebuttable presumption of a conflict. In addition, Chronister claims that there are several identifiable procedural irregularities in this case that warrant a higher standard of review. First, Unum never considered Chronister’s social security disability award and failed to obtain Chronister’s records from the Social Security Administration. Second, the letter informing Chronister that her benefits were being terminated failed to comply with Unum’s own standards because it failed to inform her of her appeal" }, { "docid": "4160323", "title": "", "text": "so substantially different as to constitute a “procedural irregularity.” In other words, none of the “procedural irregularities” identified by Torgeson is “so egregious that it might create a ‘total lack of faith in the integrity of the decision making process.’ ” Hillery, 453 F.3d at 1090 (quoting Layes, 132 F.3d at 1251). Under these circumstances, the court will review Unum’s denial of Torgeson’s claim for LTD benefits under the Plan only for abuse of discretion. B. The Applicable Standard Of Review Under the applicable “abuse of discretion” standard of review, “ ‘[t]he plan administrator’s decision to deny benefits will stand if a reasonable person could have reached a similar decision.” Hillery, 453 F.3d at 1090 (quoting Woo, 144 F.3d at 1162). To put it another way, the administrator’s decision need be only reasonable, meaning that it must be supported by substantial evidence, and that decision will be reversed only if it was arbitrary and capricious. Alexander v. Trane Co., 453 F.3d 1027, 1031 (8th Cir.2006); Chronister, 442 F.3d at 656 (also stating the “substantial evidence” standard of “reasonableness” for “abuse of discretion” review). This court may not substitute its own judgment for that of the plan administrator. Id. Thus, if the plan administrator’s decision satisfies the “substantial evidence” requirement, it “ ‘should not be disturbed even if another reasonable, but different, interpretation may be made.’ ” Chronister, 442 F.3d at 656 (quoting McGarrah, 234 F.3d at 1031). C. Application Of The Standard The court will summarize the parties’ arguments on the merits of the case under the applicable “abuse of discretion” standard. The court will then turn to its assessment of whether or not Unum abused its discretion in denying Torgeson’s claim for LTD benefits under the Plan. 1. Arguments of the parties a. Torgeson’s initial arguments In her initial brief on the merits, Torgeson contends that Unum abused its discretion in denying her claim, because Unum utterly failed to consider the combined effect of her multiple, co-morbid conditions on her ability to perform her occupation as an office nurse. She contends that Unum did so, even though Unum credited" }, { "docid": "12685467", "title": "", "text": "ERISA record. The district court found that Unum’s decision denying Chronister benefits based on the self-reported symptoms limitation was not supported by substantial evidence. As such, the district court remanded the case to Unum and directed Unum to re-open the administrative record and make a new determination of the claim. Both parties asked the district court to alter or amend its judgment. Chronister asked for a trial on the merits, or in the alternative, reinstatement of benefits pending Unum’s further review. Unum argued that the district court incorrectly applied the policy language to the facts and asked the district court to enter judgment in its favor. The district court denied both motions. Both parties appeal. II. Discussion Chronister argues that the federal district court does not have jurisdiction over her claim because ERISA does not govern her claim for long-term disability benefits. Chronister asserts that the Baptist Health Employee Benefit Plan is a “church plan” under ERISA because Baptist Health is a charitable organization according to 26 U.S.C. § 501(c)(3), and it is “controlled by or associated with” the Baptist church. It is “associated with” the Baptist church because it “shares common religious bonds and convictions” with the Baptist church under 29 U.S.C. § 1002(33)(C)(iv). Moreover, Baptist Health has not elected to exercise its right to be covered by ERISA. Alternatively, Chronister argues that if subject matter jurisdiction is present, the decision of the district court remanding the case to Unum should be affirmed. However, Chronister claims that the district court should have maintained the status quo by entering an award of interim benefits. Unum, on the other hand, maintains that Baptist Health’s long-term disability plan is governed by ERISA. Unum states that ERISA’s narrow “church plan” exception does not apply to Baptist Health’s plan due to the lack of any specific organizational or financial tie between a Baptist church and Baptist Health. Moving to the district court’s review of Unum’s decision to deny benefits to Chronister, Unum claims that the district court applied the correct standard of review — abuse of discretion. However, the district court erred in reversing" }, { "docid": "2643793", "title": "", "text": "relinquishing any and all claims I have or may have against UNUM, including, but not limited to, any claim for additional benefits from UNUM under policy number 012543 [the Advanced Computer Plan].” Barron commenced this action against UNUM for a judgment declaring that the Release, which she had executed in May 1993, “[was] not a bar to Nancy Barron’s claim for longterm disability benefits under UNUM Policy Number 36711 [the Comcast Plan]” and that policy number 36711 “was in effect ... in March 1998” when she became disabled. Barron also sought an injunction directing UNUM “to process Nancy Barron’s request for long-term disability benefits, beginning in June 1998, in accordance with the usual underwriting standards of the Company with regard to disability determinations.” Barron filed a motion for summary judgment to obtain the relief she requested, and UNUM filed'a cross-motion for summary judgment, relying solely on the Release to support its position. The district court, concluding that the Comcast Plan gave UNUM discretionary authority to determine eligibility for benefits and to interpret the terms and provisions of that plan, held that UNUM did not abuse its discretion “in denying Plaintiffs claim for long-term disability on the basis of the May, 1993 Release” in view of the Rélease’s language providing that the Release was not limited to policy number 012543. Accordingly, the court denied Barron’s motion for summary judgment and granted UNUM’s cross-motion for summary judgment. Barron noticed this appeal. II Barron contends first that even though UNUM, as administrator of the Comcast Plan, is given discretion to interpret its provisions, it “breached its-fiduciary duty to [her] and made a determination based on the self-interest of UNUM, rather than pursuant to the terms of the plan.” She argues that “by making a decision based upon the language of a 1993 release, rather than in accordance with the documents and instruments governing the current ERISA plan with Comcast Corporation,” UNUM violated its duties as a fiduciary under the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq. Barron also contends that even if the Release is relevant" }, { "docid": "22284976", "title": "", "text": "(citations and internal quotation marks omitted); see also 29 U.S.C. § 1001(b) (“It is hereby declared to be the policy of this chapter to protect ... the interests of participants in employee benefit plans and their beneficiaries ... by establishing standards of conduct, responsibility, and obligation for\" fiduciaries of employee benefit plans.”). In seeking coverage under her long-term disability benefit plan, Ms. Fought advances three arguments. First, she argues that the district court erred by using the wrong standard of review when it reviewed UNUM’s decision. Second, she argues that UNUM’s denial of benefits was, in any event, an unreasonable interpretation under the plan. Finally, she argues that the district court failed to consider UNUM’s obligation to draft plan provisions in a manner calculated to be understood by the average plan participant. We begin with the appropriate standard of review, discussing (1) the current state of the Tenth Circuit’s “sliding scale” standard of review, (2) the application of the sliding scale standard of review in conflict of interest cases, (3) the application of a reduced deference standard in this case. We then combine our analysis of Ms. Fought’s second and third arguments. Given our standard of review, we first analyze whether the plan administrator’s construction of the plan language is a reasonable one. In so doing, we consider (a) the plan’s pre-existing exclusion clause, (b) the role of causation in interpreting the pre-existing exclusion clause, (c) the Department of Labor’s regulations and a published example regarding pre-existing conditions, (d) relevant circuit and district court case law involving similar questions, and (e) whether clearer exclusionary language may have been available to UNUM. Finally, we examine whether, given the record evidence and our reduced deference standard of review, UNUM’s application of the pre-existing condition exclusion was supported by substantial evidence. A. The Standard of Review “Summary judgment orders are reviewed de novo, using the same standards as applied by the district court.” Pitman v. Blue Cross & Blue Shield of Okla., 217 F.3d 1291, 1295 (10th Cir.2000). Accordingly, like the district court, we must review UNUM’s decision to deny benefits to Ms." }, { "docid": "2612328", "title": "", "text": "dosing and administration of his diabetic treatment medications and to proper dietary management. This occurrence would not preclude performance of sedentary level activities.” With that, the administrative case was closed. Unum issued its final decision, upholding its denial of physical disability benefits, in August 2003. Within days, Davis sued Unum and the plan. The suit, brought under the Employee Retirement Income Security Act (“ERISA”), alleged wrongful denial of benefits pursuant to 29 U.S.C. § 1132(a)(1)(B). The parties filed cross-motions for summary judgment. The district court denied Unum and the plan summary judgment and partially granted Davis summary judgment. The district court faulted Unum for using only in-house doctors who perform “a mere paper review” of Davis’s claims and who did not explain their conclusions to the district court’s satisfaction. The district court, nevertheless, did not order Unum to award Davis physical disability benefits. Rather, the district court remanded the case back for Unum to correct the deficiencies identified by the district court in its opinion. Displeased, Davis appealed, seeking an outright reversal of Unum’s denial and a full award of physical disability benefits. Unum and the plan then cross-appealed, contesting the district court’s denial of summary judgment. II. Our review of the district court’s summary judgment decisions is de novo. See Sisto v. Ameritech Sickness & Accident Disability Benefit Plan, 429 F.3d 698, 700 (7th Cir.2005). Before addressing the denial of Davis’s claim, we first turn to the standard under which that denial should be reviewed. A. When, as here, the terms of an employee benefit plan afford the plan administrator broad discretion to interpret the plan and determine benefit eligibility, judicial review of the administrator’s decision to deny benefits is limited to the arbitrary-and-capricious standard. See id. The district court ostensibly applied this deferential standard, but Davis challenges its applicability in this case. He, however, does not dispute the plan’s language. Rather, he contends that, due to a conflict of interest, Unum was biased against him and should not be afforded any deference. This is a difficult road for Davis because the existence of potential bias, a potential conflict," }, { "docid": "7109092", "title": "", "text": "pain, being the primary symptom associated with her fibromyalgia, was based on self-report. As such, benefits were limited to twenty-four months by the self-reported symptoms limitation. Weitzenkamp then filed this lawsuit. Unum counterclaimed, seeking recoupment of the overpayment created by Weitzenkamp’s retroactive receipt of social security benefits. Both parties moved for summary judgment. The district court found that to the extent Unum’s discontinuation of benefits was based on a finding that she was not disabled, that decision was arbitrary and capricious. But the district court upheld Unum’s application of the self-reported symptoms limitation. It also concluded that Unum is entitled to $9,089 as a result of its overpayment of benefits. Weitzenkamp now . appeals. Unum filed a conditional cross-appeal to preserve its right to appeal the district court’s determination that Unum’s finding of no disability was arbitrary and capricious if we reverse the judgment. II. We review the district court’s grant of summary judgment de novo. Jenkins v. Price Waterhouse Long Term Disability Plan, 564 F.3d 856, 860 (7th Cir.2009). Where, as here, the plan grants the administrator the discretion to determine eligibility and construe the plan terms, we review the administrator’s decision under an arbitrary and capricious standard. Id. Under this standard, “an administrator’s interpretation is given great deference and will not be disturbed if it is based on a reasonable interpretation of the plan’s language.” Wetzler v. Ill. CPA Soc’y & Found. Ret. Income Plan, 586 F.3d 1053, 1057 (7th Cir.2009). In evaluating whether the administrator’s decision was arbitrary and capricious, we may consider, among other factors, the administrator’s structural conflict of interest and the process afforded the parties. Chalmers v. Quaker Oats Co., 61 F.3d 1340, 1344 (7th Cir.1995); see also Majeski v. Metro. Life Ins. Co., 590 F.3d 478, 482 (7th Cir.2009) (the gravity of the administrator’s conflict of interest may be “inferred from the circumstances of the case, including the reasonableness of the procedures by which the plan administrator has decided the claim”). A. Weitzenkamp makes numerous arguments regarding the substantive unreasonableness of Unum’s application of the self-reported symptoms limitation to her benefits claim. The" }, { "docid": "23467751", "title": "", "text": "facts and the decision or between the found facts and the evidence.” Bellaire Gen. Hosp. v. Blue Cross Blue Shield of Mich., 97 F.3d 822, 828 (5th Cir.1996). An administrator’s decision to deny benefits must be “based on evidence, even if disputable, that clearly supports the basis for its denial.” Vega v. Nat’l Life Ins. Servs., Inc., 188 F.3d 287, 299 (5th Cir.1999). We must find that “[wjithout some concrete evidence in the administrative record that supports the denial of the claim, ... the administrator abused its discretion.” Id. at 302 (emphasis added). A “sliding scale” is applied to the abuse of discretion standard where it is determined that the administrator has acted under a conflict of interest. Id. at 296. “The greater the evidence of conflict on the part of the administrator, the less deferential our abuse of discretion standard will be.” Id. at 297. When a minimal basis for a conflict is established, we review the decision with “only a modicum less deference than we otherwise would.” Id. at 301 (emphasis added). In the instant case, the district court held that UNUM had an “inherent conflict of interest” because it was both the insurer and the plan administrator, which determined whether to pay claims under the Policy. Accordingly, the district court found that UNUM’s decision to deny Lain’s claim was subject to a “modicum less deference.” Id. UNUM argues that the district court erred in allowing UNUM only “a moderate or medium amount of deference on the sliding scale.” We are not required to apply the Vega “sliding scale” analysis to this case because we agree with the district court that “[gjiven the overwhelming evidence of ... Lain’s disability ... and the absence of any ‘concrete’ evidence to the contrary, the decision in this case would not be different even if UNUM’s factual determination[s] were entitled to all but ‘a modicum’ of deference.” A district court’s determination of whether an administrator abused its discretion in denying a claim for benefits is reviewed de novo. Bellaire Gen. Hosp., 97 F.3d at 829. However, this Court “will set aside the" }, { "docid": "3455743", "title": "", "text": "the administrative record. UNUM’s August 5, 1998 denial letter invited Ms. Alford to submit additional medical evidence within 60 days in order to secure reconsideration of her claim. If Ms. Alford had submitted such evidence to UNUM within that period, she would have a legitimate argument that it should be part of the administrative record. Even on her version of the facts, however, her counsel did not send the materials until several weeks past the letter’s 60 day deadline. When the 60 days expired with no further submissions by Ms. Alford, UNUM’s decision became final. Therefore, the documents allegedly sent on October 23 were neither “presented to” nor “considered by” UNUM in reaching its decision, and should not be included in the record on appeal to the district court. See Bendixen v. Standard Ins. Co., 185 F.3d 939, 944 (9th Cir.1999) (“[I]t was not error to refuse to consider Dr. High’s report because the report was given to Standard after its second review had been completed and a final determination had been made. Because the report was not before the plan administrator at the time of the denial, the district court was limited to that record and could not consider the report in its review.”). III Finally, Ms. Alford contends that UNUM abused its discretion when it denied her disability benefits beyond November 1, 1996, and that the district court therefore erred in granting the defendant’s motion for summary judgment and denying her own. As evidence of this abuse, she points primarily to UNUM’s rejection of Dr. Berger’s report of October 30, 1996 as sufficient evidence of future disability. Relying on the treating physician rule, Ms. Alford contends that UNUM failed to give “specific, legitimate reasons” for the rejection of that report, see Regula, 266 F.3d at 1140, and therefore abused its discretion. The district court properly held that UNUM’s refusal to extend benefits based on the materials it had before it, including Dr. Berger’s report, did not constitute an abuse of discretion. Unlike Dr. Charles’ earlier report, Dr. Berger’s report did not offer any prognosis for Ms. Alford or" }, { "docid": "2643796", "title": "", "text": "in June 1998 based on the Release. She then timely commenced this action against UNUM and filed a motion for summary judgment. UNUM again defended itself on the basis of the Release. And when the district court entered judgment in favor of UNUM, it based its decision on the Release. Accordingly, we must determine whether UNUM could rely on the Release to deny Barron’s claim for benefits under the Comcast Plan. We treat Barron’s request for a declaratory judgment as a civil action to clarify rights under the terms of the Comcast Plan, as authorized by 29 U.S.C. § 1132(a)(1)(B). When a plan, such as the Com-cast Plan before us, vests an administrator with discretion, we review the administrator’s actions in interpreting the plan and in denying claims for abuse of discretion. See Haley v. The Paul Revere Life Ins. Co., 77 F.3d 84, 88-89 (4th Cir.1996). The interpretations of the plan to which this discretion applies, however, are only those for which the ERISA plan itself explicitly vests discretion in the administrator. Thus, UNUM’s interpretation of the Release is given deference under the abuse of discretion standard only if the Release could be considered part of the Comcast Plan and only if the Comcast Plan so vests discretion in UNUM; Otherwise, we review UNUM’s decision de novo. See Booth v. Wal-Mart Stores, Inc. Assocs. Health & Welfare Plan, 201 F.3d 335, 341 (4th Cir.2000) (noting that “the scope of contractually conferred discretion' and whether a fiduciary has acted within that scope” is reviewed 'dé novo). As an employer, Comcast Corporation undertook to provide its employees with long-term disability benefits through an insurance policy purchased from UNUM, and it designated UNUM as an administrator under its plan to provide those benefits. See 29 U.S.C. § 1002(16)(A). As an administrator, UNUM was a fiduciary, see id. § 1002(21)(A), and was obliged to discharge its duties as administrator “solely in the interest of the participants and beneficiaries,” id. § 1104(a)(1). ERISA prohibits a fiduciary from “dealing with the assets of the plan in its own interest.” Id. § 1106(b). When UNUM obtained" }, { "docid": "2643794", "title": "", "text": "provisions of that plan, held that UNUM did not abuse its discretion “in denying Plaintiffs claim for long-term disability on the basis of the May, 1993 Release” in view of the Rélease’s language providing that the Release was not limited to policy number 012543. Accordingly, the court denied Barron’s motion for summary judgment and granted UNUM’s cross-motion for summary judgment. Barron noticed this appeal. II Barron contends first that even though UNUM, as administrator of the Comcast Plan, is given discretion to interpret its provisions, it “breached its-fiduciary duty to [her] and made a determination based on the self-interest of UNUM, rather than pursuant to the terms of the plan.” She argues that “by making a decision based upon the language of a 1993 release, rather than in accordance with the documents and instruments governing the current ERISA plan with Comcast Corporation,” UNUM violated its duties as a fiduciary under the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq. Barron also contends that even if the Release is relevant to a claim made under the Comcast Plan, the Release’s terms do not reach future claims such as the one she made against the Comcast Plan. We address these arguments in order. A The Comcast Plan, under which Barron has made her claim for long-term benefits, specifies that the Plan Administrator is Comcast Corporation. Comcast Corporation provided long-term disability benefits to its employees through policy number 36711 obtained from UNUM, effective January 1, 1998. This policy designates UNUM as the administrator of the insurance benefits provided by policy number 36711 and states that “Plan means a line of coverage under the policy.” As an administrator of insurance benefits provided by the Comcast Plan, UNUM is given discretionary authority “to determine [employees’] eligibility for benefits and to interpret the terms and provisions of the policy.” Policy number 36711 directs that claims for benefits be submitted to UNUM and that any suit against UNUM be filed within three years “from the time proof of claim is required.” Barron filed her claim with UNUM and was denied benefits" }, { "docid": "7787312", "title": "", "text": "not disabled as defined by the policy based upon the undisputed facts. To oppose the motion, plaintiff charged that UNUM breached its fiduciary duty and attached an affidavit by Barnhart relating to her physical condition and a Social Security Disability Administration determination of disability letter. The district court, using a deferential standard of review, granted UNUM’s motion for summary judgment on June 10, 1998, holding that UNUM had produced uncontroverted evidence that its decision was not arbitrary and capricious. The court also found that plaintiff had not produced any evidence that UNUM’s decision was extraordinarily imprudent, extremely unreasonable, or unsupported by substantial evidence. The court refused to consider the affidavit and the Social Security letter because these items were not before the UNUM administrator when the disability determination was made. On June 17, 1998, plaintiff filed a “Motion for New Trial,” claiming that the court improperly failed to consider the affidavit, the Social Security letter, and overlooked UNUM’s fiduciary role as a trustee to act in the plaintiffs best interests in reviewing her claim. Because of this Court’s decision in Woo v. Deluxe Corp., 144 F.3d 1157 (8th Cir.1998) (adopting a sliding scale standard of review for conflicted fiduciaries), the district court, in considering Barnhart’s motion, asked the parties to brief the standard of review outlined in Woo. After considering the parties’ argu ments, the court found that the administrator had a conflict of interest. Using a “sliding scale” standard of review, the court denied plaintiffs motion, finding that the record satisfied this standard because it contained substantial evidence bordering on a preponderance to uphold the administrator’s decision. Barnhart appeals the order for summary judgment claiming that the district court erred by failing to properly consider UNUM’s breach of its fiduciary duties to plaintiff, failing to consider the affidavit and Social Security disability determination, and failing to consider persisting material issues of fact. Barnhart appeals the denial of the “Motion for New Trial,” claiming that the court erred by declining to take testimony to flesh out conflicts of interest. UNUM argues that the court improperly invoked the sliding scale, but" }, { "docid": "2698462", "title": "", "text": "BRUNETTI, Circuit Judge: Appellee, Sherry Williamson, filed this lawsuit after Appellant, UNUM Life Insurance Company of America, canceled the benefits she was receiving under a long term disability plan issued by UNUM to Williamson’s employer. UNUM appeals from two district court orders granting Williamson partial summary judgment on the issue of the proper standard of review and the issue of cooperation. We dismiss UNUM’s appeal for lack of jurisdiction. BACKGROUND Appellee, Sherry Williamson, began working for Landmark Land Company, Inc. in 1981. Because of her employment with Landmark, Williamson was covered by a long term disability insurance plan issued to Landmark by UNUM Life Insurance Company of America. Two months after she suffered injuries in an automobile accident, Williamson found that she was unable to perform her duties at Landmark because of those injuries. In October 1991, she submitted a claim for disability benefits to UNUM alleging that she was permanently disabled from brain injuries she suffered in the automobile accident. UNUM began paying benefits to Williamson once UNUM received the required documentation of Williamson’s disability. UNUM eventually terminated Williamson’s disability benefits claiming that, despite numerous request for information, Williamson failed to provide the necessary documentation regarding her continued disability. Williamson contends that she provided UNUM with all the necessary information. Williamson commenced this lawsuit seeking declaratory relief, injunctive relief, recovery of benefits, and attorneys’ fees. After Williamson filed this lawsuit, UNUM filed a motion seeking a partial summary judgment order declaring that the standard of review the district court would employ would be abuse of discretion. The district court denied UNUM’s motion and sua sponte granted partial summary judgment in favor of Williamson holding that de novo review was the proper standard of review to be employed by the district court in this case. The district court reasoned that the disability plan did not confer discretion on UNUM and, therefore, UNUM was not entitled to abuse of discretion review. After UNUM’s motion for partial summary judgment on the proper standard of review was denied, UNUM filed a second motion for summary judgment arguing that UNUM was entitled to cancel" }, { "docid": "3313163", "title": "", "text": "HENRY, Circuit Judge. Peggy Allison challenges the decision by UNUM’s claims administrator to deny long-term disability benefits under her employer’s group disability plan. Ms. Allison suffers from multiple endocrine neoplasia type I (MEN-I syndrome), a relatively uncommon inherited disease that often causes overactivity and enlargement of certain endocrine glands, including the parathyroid and the pancreas. After conducting a pre-existing condition review, UNUM denied Ms. Allison long-term disability benefits and rejected Ms. Allison’s appeal. Ms. Allison sought further review, claiming that UNUM had miscalculated the date of her eligibility for benefits as February 1, 1998, rather than January 1, 1998. UNUM admitted the error and re-opened the pre-existing condition examination. During this process, UNUM requested additional medical information from Ms. Allison. After several failed attempts to obtain this information from Ms. Allison’s then-counsel, UNUM again denied her claim for benefits, citing its inability to complete the pre-existing condition review. Ms. Allison brought a civil suit under 29 U.S.C. § 1132(a)(1)(B), alleging that she was entitled to disability benefits under the plan. She also alleged insurance bad faith under Oklahoma law. Additionally, she sought federal common law consequential and punitive damages for the wrongful denial of benefits; she has subsequently abandoned this claim. The district court granted UNUM’s motion for partial summary judgment, finding that the bad faith claim was preempted by ERISA. As to the § 1132(a)(1)(B) claim, UNUM admitted a conflict of interest, as both payor and administrator of the plan. After receipt of trial briefs, the district court applied the arbitrary and capricious standard of review, found in favor of UNUM, and dismissed Ms. Allison’s remaining claim. Exercising jurisdiction under 28 U.S.C. § 1291, we hold that (1) the district court did not apply the appropriate standard of review when it considered the plan administrator’s denial of benefits to Ms. Allison; (2) notwithstanding this error, the district court’s dismissal of Ms. Allison’s § 1132(a)(1)(B) claim was correct because UNUM has established by substantial evidence that its denial of benefits, based on Ms. Allison’s failure to present proof of her claim, was reasonable; and (3) the district court correctly found" }, { "docid": "2698463", "title": "", "text": "disability. UNUM eventually terminated Williamson’s disability benefits claiming that, despite numerous request for information, Williamson failed to provide the necessary documentation regarding her continued disability. Williamson contends that she provided UNUM with all the necessary information. Williamson commenced this lawsuit seeking declaratory relief, injunctive relief, recovery of benefits, and attorneys’ fees. After Williamson filed this lawsuit, UNUM filed a motion seeking a partial summary judgment order declaring that the standard of review the district court would employ would be abuse of discretion. The district court denied UNUM’s motion and sua sponte granted partial summary judgment in favor of Williamson holding that de novo review was the proper standard of review to be employed by the district court in this case. The district court reasoned that the disability plan did not confer discretion on UNUM and, therefore, UNUM was not entitled to abuse of discretion review. After UNUM’s motion for partial summary judgment on the proper standard of review was denied, UNUM filed a second motion for summary judgment arguing that UNUM was entitled to cancel Williamson’s benefit payments in December of 1993 because Williamson failed to cooperate with UNUM as required by the policy. The district court, employing the de novo standard of review, denied UNUM’s motion for summary judgment and sua sponte granted Williamson partial summary judgment on the issue of cooperation. The district court concluded that, as a matter of law, UNUM was not entitled to terminate Williamson’s benefits based on an alleged failure to cooperate because Williamson had provided UNUM with a written authorization that permitted UNÜM to obtain the information it needed. Because the plan administrator never reached the merits of Williamson’s claim for benefits, the district court remanded Williamson’s claim “to the plan administrator to supplement the administrative record and make a determination of whether Plaintiff continued to be disabled from the time her benefits were suspended to the present.” UNUM appeals from- the two district court orders granting Williamson partial summary judgment and remanding Williamson’s claim to the plan administrator. DISCUSSION The issue of appellate jurisdiction must always be resolved before the merits of" }, { "docid": "3313172", "title": "", "text": "required by the Plan, and stated that UNUM did not receive the relevant records needed to complete the evaluation. See id. at 63. Mr. Roop gave Mr. Belote thirty additional days in which to submit the requested information before the denial of benefits would become final. See id. Mr. Belote did not respond. B. Procedural History Ms. Allison filed suit in federal district court alleging (1) UNUM violated 29 U.S.C. § 1132 in denying her claim for benefits, (2) bad faith breach of contract, and (3) violation of federal common law. She has since abandoned the federal common law claim. UNUM filed a motion for partial summary judgment, arguing that Ms. Allison’s claim for disability benefits was governed exclusively by ERISA and that all state common law claims were expressly and impliedly preempted by ERISA. UNUM also sought to have the district court determine that the arbitrary and capricious standard of review applied to the denial of benefits and that such review was limited to the administrative record before UNUM at the time it made its benefits decision. The district court ordered briefing and dismissed the bad faith claim in a minute order on December 4, 2002. In that order, the court also determined that it would apply the arbitrary and capricious standard of review to UNUM’s denial of benefits. After receiving trial briefs and further supplemental briefing, the district court found that UNUM’s decision to deny Ms. Allison’s claims for benefits was not arbitrary and capricious based upon the administrative record. II. ANALYSIS UNUM’s long-term disability plan is governed by ERISA, 29 U.S.C. § 1001 et seq. In seeking coverage under her long-term disability benefit plan, Ms. Allison contends that (1) the district court erred by using the wrong standard of review when it reviewed the plan administrator’s denial of benefits, but that even under the incorrect arbitrary and capricious standard, the denial of benefits was unreasonable, (2) UNUM denied her benefits without any evidence of a pre-existing condition; and (3) the denial of benefits was in bad faith under Oklahoma law, and that this claim is not preempted" } ]

[ { "docid": "23344488", "title": "", "text": "the burden of authentication does not require the proponent of the evidence to rule out all possibilities inconsistent with authenticity, or to prove beyond any doubt that the evidence is what it purports to be. Rather, the standard for authentication, and hence for admissibility, is one of reasonable likelihood. See United States v. McGlory, 968 F.2d 309, 328-29 (3d Cir.1992), cert. denied, — U.S.-, 113 S.Ct. 1388, 122 L.Ed.2d 763 (1993); United States v. Collado, 957 F.2d 38, 39 (1st Cir.1992); see also 5 J. Weinstein & M. Berger, Weinstein’s Evidence ¶ 901(a)[01], at 901-19 (1994) (explaining that the trial court should admit evidence as authentic “if sufficient proof has been introduced so that a reasonable juror could find in favor of authenticity”). Here, mindful of the deference accorded to the trial court’s exercise of its discretion, we cannot say that the court erred in declaring the photocopy of the bank check to be sufficiently authenticated, or in admitting it into evidence. 2. Hearsay. Appellant also suggests that, because the photocopy was introduced to prove the truth of the matter asserted, it was hearsay and, therefore, inadmissible unless it fell within one of the exceptions to the hearsay rule. We need not probe this point too deeply, for close perlustration of the record makes it plain that appellant never advanced this objection below. During the trial, appellant made a cluster of objections with regard to the photocopy of the bank check. However, these objections focused on authentication, and contained no developed argumentation in regard to hearsay principles. To be sure, defense counsel at one point called the photographs “totem pole hearsay,” and, in a later colloquy, applied the same epithet to the photocopy. But we think that this elliptical reference carries little weight. Under prevailing federal practice, objections to evidentiary proffers must be reasonably specific in order to preserve a right to appellate review. See, e.g., United States v. Walters, 904 F.2d 765, 769 (1st Cir.1990); see also Fed.R.Evid. 103(a)(1). In other words, a litigant is obliged to “call [his specific objection] to the attention of the trial judge, so" } ]

[ { "docid": "11708593", "title": "", "text": "data. The court also held that, based on general information and literature with which she was admittedly unfamiliar, Tay was not qualified to determine whether a particular individual could deliberately fake a Mandarin accent. Tin Yat Chin now appeals his conviction and sentence. DISCUSSION As detailed below, we hold as follows: the copies of the receipts satisfy the authentication requirements of Rule 901, are admissible as non-hearsay, and their exclusion was not harmless error. The district court’s limitation of Tay’s testimony was not an abuse of discretion. On remand, however, Tin Yat Chin may fortify his proffer of Tay’s testimony in a manner that addresses the district court’s concerns. A. The Credit Card Receipts 1. Authentication The Government concedes, as it must, that Tin Yat Chin offered compelling circumstantial evidence that the receipts were generated at the times and places designated on the receipts. Thus, the parties have narrowed their authenticity dispute down to whether Tin Yat Chin himself signed the receipts at the times and places indicated. There may be questions about the ultimate reliability of the receipts as proof of Tin Yat Chin’s alibi, but the district court applied an unreasonably high standard for their authentication under Rule 901. A district court has broad discretion to determine whether a piece of evidence has been properly authenticated. United States v. Tropeano, 252 F.3d 653, 661 (2d Cir.2001). Rule 901 provides that “[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Fed. R.Evid. 901(a). Rule 901 “does not erect a particularly high hurdle,” and that hurdle may be cleared by “circumstantial evidence.” United States v. Dhinsa, 243 F.3d 635, 658-59 (2d Cir.2001)-(internal citation and quotation marks omitted). The proponent is not required- “to rule out all possibilities inconsistent with authenticity, or to prove beyond any doubt that the evidence is what it purports to be.” United States v. Pluta, 176 F.3d 43, 49 (2d Cir.1999) (internal citation and quotation marks omitted). Rule 901’s requirements are satisfied “if sufficient" }, { "docid": "23482222", "title": "", "text": "a voice ... by opinion based upon hearing the voice at any time,” id. 901(b)(5). In Barroso’s case, the brokers who authenticated the tapes had firsthand knowledge of the conversations and each identified the voices on the tapes. Barroso, however, argues that the government also needed to establish a chain of custody for the tapes, relying upon United States v. Fuentes, 563 F.2d 527 (2d Cir.1977). In Fuentes, we upheld the admission of tapes as sufficiently authenticated by evidence of an unbroken chain of custody. See id. at 532. However, our upholding the authentication of tapes by establishing a chain of custody in the absence of testimony by a contemporaneous witness to the recorded conversations does not imply, as appellant suggests, that such a witness cannot provide equally sufficient authentication without proof of a chain of custody. Indeed, appellant’s position is contrary to the plain language of Rule 901. See United States v. Barone, 913 F.2d 46, 49 (2d Cir.1990) (“[T]he government is not required to call as a witness a participant in a recorded conversation in order to authenticate the recording; it may lay the foundation for the recording through the testimony of the technician who actually made it.”); United States v. Rizzo, 492 F.2d 443, 448 (2d Cir.1974) (holding that voice identification by three detectives was sufficient); United States v. Albert, 595 F.2d 283, 290 (5th Cir.1979) (voice identification by conversation participant proper); see also Pluta, 176 F.3d at 49 (“The burden of authentication does not require the proponent of the evidence to rule out all possibilities inconsistent with authenticity, or to prove beyond any doubt that the evidence is what it purports to be. Rather, the standard for authentication, and hence for admissibility, is one of reasonable likelihood.” (quoting United States v. Holmquist, 36 F.3d 154, 168 (1st Cir.1994)). Finally, Fuentes also noted that “this Circuit has never expressly adopted a rigid standard for determining the admissibility of tape recordings.” 563 F.2d at 532. The district court therefore did not abuse its discretion in admitting the tapes. Authentication of course merely renders the tapes admissible, leaving the" }, { "docid": "3968484", "title": "", "text": "opportunity to respond to the defendants’ objections or to supplement the record with additional documentation to authenticate and certify the records prior to the district court’s ruling. See Fed.R.Civ.P. 56(c)(2) advisory committee’s note to 2010 amendment (“[A] party may object that material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence. The objection functions much as an objection at trial, adjusted for the pretrial setting. The burden is on the proponent to show that the material is admissible as presented or to explain the admissible form that is anticipated.”); cf. H. Sand & Co. v. Airtemp Corp., 934 F.2d 450, 454 (2d Cir.1991) (stating that Fed.R.Civ.P. 56 “does not ... require that parties authenticate documents where [the non-offering party] did not challenge the authenticity of the documents”). Having reviewed these medical records, we note that their appearance, contents, and substance are what one would expect of such records and support plaintiffs’ claim that they are what they appear to be. Cf. Fed.R.Evid. 901(b)(4) (stating that the authentication requirement' can be satisfied by “[t]he appearance, contents, substance, ... or other distinctive characteristics of the item, taken together with all the circumstances”); United States v. Pluta, 176 F.3d 43, 49 (2d Cir.1999) (“[T]he burden of authentication does not require the proponent of the evidence to ... prove beyond any doubt that the evidence is what it purports to be. Rather, the standard for authentication, and hence for admissibility, is one of reasonable likelihood.” (alteration in original) (internal quotation marks and citation omitted)); United States v. Bagaric, 706 F.2d 42, 67 (2d Cir.1983) (“The requirement of authentication is satisfied by evi dence sufficient to support a finding that the matter is what its proponent claims. This finding may be based entirely on circumstantial evidence, including [appearance, contents, substance ... and other distinctive characteristics of the writing.” (alterations in original) (internal quotation marks and citations omitted)), abrogated on other grounds by Nat’l Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 114 S.Ct. 798, 127 L.Ed.2d 99 (1994). The record also indicates that these" }, { "docid": "22106320", "title": "", "text": "Pluta, 176 F.3d at 49 (“[T]he standard for authentication, and hence for admissibility, is one of reasonable likelihood.”) (quotation marks omitted); Ortiz, 966 F.2d at 716 (“If in the court’s judgment it seems reasonably probable that the evidence is what it purports to be, the command of Rule 901(a) is satisfied, and the evidence’s persuasive force is left to the jury.”) (quotation marks omitted). The trial court has broad discretion in determining whether an item of evidence has been properly authenticated, and we review its ruling only for abuse of discretion. See Pluta, 176 F.3d at 49; see also Ruggiero, 928 F.2d at 1303. “A telephone conversation is admissible in evidence if the identity of the speaker is satisfactorily established.” United States v. Albergo, 539 F.2d 860, 863-64 (2d Cir.1976). “While a mere assertion of identity by a person talking on the telephone is not in itself sufficient to authenticate that person’s identity, some additional evidence, which ‘need not fall in[to] any set pattern,’ may provide the necessary foundation.” United States v. Khan, 53 F.3d 507, 516 (2d Cir.1995) (quoting Fed.R.Evid. 901(b)(6) advisory committee notes, ex. 6); cf. Fed.R.Evid. 901(b) (providing a non-exhaustive list of examples that satisfy the authentication requirement); Fed.R.Evid. 901 advisory committee note to subdivision (b) (“The examples [in Rule 901(b) ] are not intended as an exclusive enumeration of allowable methods but are meant to guide and suggest, leaving room for growth and development in this area of the law.”). For example, “[t]he authentication may be established by circumstantial evidence such as the similarity between what was discussed by the speakers and what each subsequently did.” United States v. Puerta Restrepo, 814 F.2d 1236, 1239 (7th Cir.1987); see also United States v. Garrison, 168 F.3d 1089, 1093 (8th Cir.1999) (“[A] ‘telephone conversation may be shown to have emanated from a particular person by virtue of its disclosing knowledge of facts known peculiarly to him.’ ”) (quoting Fed.R.Evid. 901(b)(6) advisory committee notes, ex. 4); United States v. Ingraham, 832 F.2d 229, 236 (1st Cir.1987) (“[I]t is a well-settled proposition that someone familiar with the speaker’s voice need" }, { "docid": "20384179", "title": "", "text": "a crime, Mr. Cameron’s reliance on Jackson misses the mark. D. Authentication Under Rule 901 The Court’s conclusion that the child pornography images are best viewed as non-hearsay, substantive evidence does not make the images automatically admissible; like all such evidence, the proponent must link the contraband to the defendant. Mr. Cameron has earnestly pressed the contention that the Government failed to make this link. More specifically, Mr. Cameron has maintained that the Government’s authenticating witness failed to satisfy the Government’s burden because the witness did not actually perform the search of the Yahoo! server. Def.’s Mot for New Trial at 6-7. Addressing this burden of authentication, Rule 901(a) requires that the proponent of an exhibit produce evidence “sufficient to support a finding that the matter in question is what its proponent claims.” Fed.R.Evid. 901. In United States v. Holmquist, 36 F.3d 154, 168 (1st Cir.1994), the First Circuit wrote: [T]he burden of authentication does not require the proponent of the evidence rule out all possibilities inconsistent with authenticity, or to prove beyond any doubt that the evidence is what it purports to be. Rather, the standard for authentication, and hence for admissibility, is one of reasonable likelihood. The burden on the Government, however, is not great. “In general, the proponent of a proffered exhibit needs only to make a prima facie showing that the exhibit is what the proponent claims it to be.” Weinstein’s § 901.02[3]. Thus, in Holmquist, the First Circuit observed that “[i]f the court discerns enough support in the record to warrant a reasonable person in determining that the evidence is what it purports to be, then Rule 901(a) is satisfied and the weight to be given to the evidence is left to the [factfinder].” 36 F.3d at 167; see also United States v. Collado, 957 F.2d 38, 39 (1st Cir.1992) (“The proponent [of evidence] first must authenticate the evidence by demonstrating to the court that there is a reasonable probability that the evidence is what its proponent claims.” (internal quotation marks and citation omitted)). Here, Christian Lee, a legal assistant in Yahoo!’s legal compliance unit," }, { "docid": "12992493", "title": "", "text": "Federal Rule of Evidence 1002 (inadmissible duplicates), or Federal Rule of Evidence 1003 (substantial questions re: authenticity require exclusion). The government clarifies in its closing brief that it intends to offer the images as duplicates of what the FBI took into custody, and does not intend to offer the images as proof of what was on Wu’s computer before it was taken by Hoffman and Hansen. I address defendants’ arguments as to each Image separately because the Acronis Backup Image and the Laptop Image eontain content that is different for the following reasons: the time when the content was captured, the technology used, and the extent to which the original was accessed before the images were made. A. Legal Standards Related to Federal Rule of Evidence 901 “The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Fed.R.Evid. 901(a). The burden on the proponent is not heavy; it needs to make a prima facie showing of authenticity. The burden is met when “sufficient proof has been introduced so that a reasonable juror could find in favor of authenticity.” United States v. Tank, 200 F.3d 627, 630 (9th Cir.2000). Under Federal Rule of Evidence 901(a), once the proponent of the evidence makes a prima facie showing of authenticity, the probative strength of the evidence is for the jury. Id. If the evidence is connected with the commission of a crime, the government must “also establish a connection between the proffered evidence and the defendant,” id., and “establish the chain of custody.” United States v. Harrington, 923 F.2d 1371, 1374 (9th Cir.1991). With respect to the chain of custody, the prosecution “must introduce sufficient proof so that a reasonable juror could find that the [evidence is] in ‘substantially the same condition’ as when [it was] seized.” Id. (quoting Gallego v. United States, 276 F.2d 914, 917 (9th Cir.1960)). The court may admit the evidence “if there is a ‘reasonable probability the article has not been changed in important respects.’ ” Id." }, { "docid": "6371568", "title": "", "text": "qua passports are more properly characterized as public records than business records, see generally 31 M. Graham, Federal Practice and Procedure § 6759, at 404 n. 2 (interim ed.1997) (“[pjublic records and reports of foreign governments,” including “passport records,” are within scope of Rule 803(8)). Cf. United States v. Doyle, 130 F.3d 523, 546-47 (2d Cir.1997) (distinguishing between foundation requirements for a business record under § 3505 or Fed.R.Evid. 803(6) and those for a public record under Fed.R.Evid. 803(8)). In order to be admissible, physical evidence must, of course, be properly authenticated. See Fed.R.Evid. 901(a); United States v. Maldonado-Rivera, 922 F.2d 934, 957 (2d Cir.1990), cert. denied, 501 U.S. 1211, 111 S.Ct. 2811, 115 L.Ed.2d 984 (1991). The authentication prerequisite simply requires the proponent to submit “evidence sufficient to support a finding that the matter in question is what its proponent claims.” Fed.R.Evid. 901(a). This requirement is satisfied “ ‘if sufficient proof has been introduced so that a reasonable juror could find in favor of authenticity or identification.’ ” United States v. Ruggiero, 928 F.2d 1289, 1303 (2d Cir.) (quoting 5 J. Weinstein &, M. Berger, Weinstein’s Evidence § 901(a)[01] (1990)), cert. denied, 502 U.S. 938, 112 S.Ct. 372, 116 L.Ed.2d 324 (1991). “[T]he burden of authentication does not require the proponent of the evidence to rule out all possibilities inconsistent with authenticity, or to prove beyond any doubt that the evidence is what it purports to be. .Rather, the standard for authentication, and hence for admissibility, is one of reasonable likelihood.” United States v. Holmquist, 36 F.3d 154, 168 (1st Cir.1994), cert. denied, 514 U.S. 1084, 115 S.Ct. 1797, 131 L.Ed.2d 724 (1995). The trial court has broad discretion to determine whether a document has been properly authenticated, and we review its ruling only for abuse of discretion. See, e.g., United States v. Maldonado-Rivera, 922 F.2d at 957; United States v. Ruggiero, 928 F.2d at 1303. Rule 902 provides that certain types of documents are self-authenticating, i.e., they do not require any extrinsic evidence for authentication. A foreign public document that purports to be executed by an official empowered'to" }, { "docid": "6397664", "title": "", "text": "the circumstances it would be unfair to admit the duplicate in lieu of the original.” A duplicate is a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques which accurately reproduces the original. Fed.R.Evid. 1001(4). The microform copy introduced here was a “duplicate” of the original check and was admissible subject to the limitations of Federal Rule of Evidence 1003. Although Mulinelli objected below to the document’s “authenticity” and elicited testimony that the microform was not the original, she failed to elicit any testimony or make any proffer suggesting that the original had been tampered with or altered in any way and that the copy was not what it purported to be. See United States v. Balzano, 687 F.2d 6, 8 (1st Cir.1982) (declining to question authenticity of duplicate where appellant failed to proffer testimony, beyond statement that evidence was not the original, of alteration or tampering). The duplicate complied with the requirements of Federal Rule of Evidence 1003 and was admissible to the same extent as the original. The district court did not abuse its discretion in admitting the microform copy. Mulinelli’s challenge below as to the “authenticity” of the copy does not clearly identify the argument that the copy was improperly authenticated. Nevertheless, giving Mulinelli the benefit of the doubt as to the scope of her objection below, we review the copy’s authentication. Federal Rule of Evidence 901(a) states: “The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Such authentication can be provided by, among other things, testimony of a custodian or percipient witness or through “the document’s ‘[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.’ ” United States v. Holmquist, 36 F.3d 154, 167 (1st Cir.1994) (quoting Fed. R.Evid. 901(b)(4)). We have recognized that “[i]f the court discerns enough support" }, { "docid": "22131953", "title": "", "text": "the Dominguez Hills Medical Center was inadmissible because, he claims, the tape was made against California law. The tapes of calls to Smith Barney were adequately authenticated before being admitted into evidence. Rule 901(a) of the Federal Rules of Evidence provides that “[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Fed.R.Evid. 901(a). “Recognizing ... that ‘recorded evidence is likely to have a strong impression upon a jury and is susceptible to alteration,’ ” we require clear and convincing evidence of authenticity for admission of recordings. United States v. Ruggiero, 928 F.2d 1289, 1303 (2d Cir.1991) (quoting United States v. Fuentes, 563 F.2d 527, 532 (2d Cir.1977)). We review a district court’s rulings with respect to sufficiency of evidence of authenticity for abuse of discretion. Id. Morrison claims the tapes were edited or altered, and he called an expert to testify at trial that there were anomalies, edits, and pauses on three of the tapes. The Government rebutted with an expert who testified that nothing on the tapes indicated tampering. The contents of the conversations on the challenged tapes are coherent and flow logically, making it improbable that any material was deleted or added. We find that the Government presented sufficient evidence to support the authenticity of the tapes and that the district court committed no abuse of discretion by admitting them. See United States v. Sovie, 122 F.3d 122, 127 (2d Cir.1997). We also reject Morrison’s challenge regarding the chain of custody of the tapes. Breaks in the chain of custody do not bear upon the admissibility of evidence, only the weight of the evidence, and therefore do not provide us any basis for reversal. See Ruggiero, 928 F.2d at 1304. The tape-recorded conversation of Morrison’s conversation with James Spinelli of Dominguez Hills Medical Center was also properly admitted. Morrison claims that the recording violated California law. We need not decide whether it violated California law for Spinelli to record Morrison’s call without Morrison’s consent, because federal" }, { "docid": "6371569", "title": "", "text": "1289, 1303 (2d Cir.) (quoting 5 J. Weinstein &, M. Berger, Weinstein’s Evidence § 901(a)[01] (1990)), cert. denied, 502 U.S. 938, 112 S.Ct. 372, 116 L.Ed.2d 324 (1991). “[T]he burden of authentication does not require the proponent of the evidence to rule out all possibilities inconsistent with authenticity, or to prove beyond any doubt that the evidence is what it purports to be. .Rather, the standard for authentication, and hence for admissibility, is one of reasonable likelihood.” United States v. Holmquist, 36 F.3d 154, 168 (1st Cir.1994), cert. denied, 514 U.S. 1084, 115 S.Ct. 1797, 131 L.Ed.2d 724 (1995). The trial court has broad discretion to determine whether a document has been properly authenticated, and we review its ruling only for abuse of discretion. See, e.g., United States v. Maldonado-Rivera, 922 F.2d at 957; United States v. Ruggiero, 928 F.2d at 1303. Rule 902 provides that certain types of documents are self-authenticating, i.e., they do not require any extrinsic evidence for authentication. A foreign public document that purports to be executed by an official empowered'to execute it is self-authenticating if it is accompanied by an appropriate certification of genuineness made by a diplomatic or consular official of the United States or the foreign country. See Fed.R.Evid. 902(3); United States v. Doyle, 130 F.3d at 545. A document which is of a type that could be self-authenticating but which does not meet all the requirements of Rule 902 may nonetheless be authenticated by any means appropri ate under Rule 901. See, e.g., United States v. Childs, 5 F.3d 1328, 1336 (9th Cir.1993), cert. denied, 511 U.S. 1011, 114 S.Ct. 1385, 128 L.Ed.2d 60 (1994); 5 J. Weinstein & M. Berger, Weinstein’s Federal Evidence § 902.02[1] (1997). Pluta’s contention that the passports were not properly authenticated qua passports under Rule 902(3) is wide of the mark for two reasons. First, the fact that documents in the names of Wicijewska and Dyblik were found in the luggage transported by Pluta was admissible simply to show that Pluta had a connection with the women whom Backhaus found hiding in the bushes. In this respect," }, { "docid": "54874", "title": "", "text": "F.3d 1251, 1263 (2d Cir.1994). The standard for determining relevance is a liberal one. See Daubert v. Metrell Dow Pharmaceuticals, Inc., 509 U.S. at 587, 113 S.Ct. 2786; Contemporary Mission, Inc. v. Famous Music Corp., 557 F.2d 918, 927 (2d Cir.1977). On a motion for summary judgment, barring substantial cause for excluding evidence on relevance grounds, a court should admit and consider the challenged exhibits and testimony. See Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244, 264 (2d Cir.2009). Although the probative weight of each of the contested exhibits varies, each is related to Defendants’ alleged state of mind and intent, and provides context for the alleged conduct. The exhibits, therefore, are relevant, and the Court DENIES Defendants’ motion to exclude them. 2. Authentication Rule 901 of the Federal Rules of Evidence requires evidence to be authenticated or identified before it is admitted. Fed.R.Evid. 901(a). To authenticate evidence, the party seeking to admit the evidence must present “evidence sufficient to support a finding that the matter in question is what its proponent claims.” Id.; see also United States v. Ruggiero, 928 F.2d 1289, 1303 (2d Cir.1991). The standard for authentication is not rigorous. See United States v. Dhinsa, 243 F.3d 635, 658 (2d Cir.2001). Authenticity may be established through a variety of means, including the testimony of a witness with knowledge of the document’s authenticity, see Fed.R.Evid. 901(b)(1), or based upon “[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.” Fed.R.Evid. 901(b)(4). “[T]he standard for authentication, and hence for admissibility, is one of reasonable likelihood.” United States v. Pluto, 176 F.3d 43, 49 (2d Cir.1999) (quoting United States v. Holmquist, 36 F.3d 154, 168 (1st Cir.1994)). Having reviewed the disputed exhibits and the related deposition testimony, the Court finds the “appearance, contents, substance,” and other contextual indicators satisfy the authentication requirement. Accordingly, the Court DENIES Defendants’ motion to exclude the evidence on authentication grounds. 3. Hearsay Defendants object to seventy-six exhibits offered by Plaintiffs on the ground that they constitute inadmissible hearsay. Hearsay is an out-of-court statement offered to “prove the truth" }, { "docid": "23631430", "title": "", "text": "also moved to suppress the Zip disk found in his ear on the ground that it was illegally seized under the Fourth Amendment. The district court denied the motion to suppress because it found that the car search was conducted incident to Tank’s arrest. The jury convicted Tank on all three counts, and the district court sentenced Tank to 285 months of imprisonment. II. CHAT ROOM LOGS We review a district court’s finding that evidence is supported by a proper foundation for an abuse of discretion. See United States v. Santiago, 46 F.Sd 885, 888 (9th Cir.1995). The foundational “requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Fed. R.Evid. 901(a); see also United States v. Harrington, 923 F.2d 1371, 1374 (9th Cir. 1991). “The government need only make a prima facie showing of authenticity, as ‘[t]he rule requires only that the court admit evidence if sufficient proof has been introduced so that a reasonable juror could find in favor of authenticity or identification.’ ” United States v. Black, 767 F.2d 1334, 1342 (9th Cir.1985) (quoting 5 J. Weinstein & M. Berger, Weinstein’s Evidence ¶ 901(a)[01], at 901-16 to -17 (1983)). The government must also establish a connection between the proffered evidence and the defendant. See id. The government made a prima facie showing of authenticity because it presented evidence sufficient to allow a reasonable juror to find that the chat room log printouts were authenticated. In testimony at the evidentiary hearing and at trial, Riva explained how he created the logs with his computer and stated that the printouts, which did not contain the deleted material, appeared to be an accurate representation of the chat room conversations among members of the Orchid Club. See United States v. Catabran, 836 F.2d 453, 458 (9th Cir.1988) (“Any question as to the accuracy of the printouts ... would have affected only the weight of the printouts, not their admissibility.”). Furthermore, the parties vigorously argued the issue of completeness of the chat" }, { "docid": "23362488", "title": "", "text": "could also have found that Gagliardi took a substantial step beyond mere preparation when he arrived at the meeting place with two condoms and a Viagra pill in his car. See also United States v. Munro, 394 F.3d 865, 870 (10th Cir.2005). In light of this conclusion, there is no need for us to reach the government’s argument that because the con viction was for attempt to entice rather than attempt to engage in a prohibited sexual act, the substantial step occurred well before Gagliardi appeared at the designated meeting place, when he repeatedly solicited Lorie and Julie over the Internet. D. Authentication of Documents Gagliardi’s final claim is that the e-mails and transcripts of instant-message chats offered by the government were not properly authenticated. He argues that because the documents were largely cut from his electronic communications and then pasted into word processing files, they were not originals and could have been subject to editing by the government. Gagliardi contends that the communications could even have been completely fabricated. Due to these “highly suspicious” circumstances, Appellant’s Br. at 72, Gagliardi submits that the government failed to establish authenticity and the trial court therefore erred in admitting the evidence. We disagree. We review a district court’s evidentiary rulings for abuse of discretion. Reilly v. Natwest Mkts. Group Inc., 181 F.3d 253, 266 (2d Cir.1999). The bar for authentication of evidence is not particularly high. United States v. Dhinsa, 243 F.3d 635, 658 (2d Cir.2001). “The requirement of authentication ... is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Fed.R.Evid. 901(a). Generally, a document is properly authenticated if a reasonable juror could find in favor of authenticity. United States v. Tin Yat Chin, 371 F.3d 31, 38 (2d Cir.2004). The proponent need not “rule out all possibilities inconsistent with authenticity, or to prove beyond any doubt that the evidence is what it purports to be.” United States v. Pluto, 176 F.3d 43, 49 (2d Cir.1999) (internal quotation marks and citation omitted). We have stated that the standard for authentication is one" }, { "docid": "3968485", "title": "", "text": "the authentication requirement' can be satisfied by “[t]he appearance, contents, substance, ... or other distinctive characteristics of the item, taken together with all the circumstances”); United States v. Pluta, 176 F.3d 43, 49 (2d Cir.1999) (“[T]he burden of authentication does not require the proponent of the evidence to ... prove beyond any doubt that the evidence is what it purports to be. Rather, the standard for authentication, and hence for admissibility, is one of reasonable likelihood.” (alteration in original) (internal quotation marks and citation omitted)); United States v. Bagaric, 706 F.2d 42, 67 (2d Cir.1983) (“The requirement of authentication is satisfied by evi dence sufficient to support a finding that the matter is what its proponent claims. This finding may be based entirely on circumstantial evidence, including [appearance, contents, substance ... and other distinctive characteristics of the writing.” (alterations in original) (internal quotation marks and citations omitted)), abrogated on other grounds by Nat’l Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 114 S.Ct. 798, 127 L.Ed.2d 99 (1994). The record also indicates that these records were produced by the medical providers themselves. See Smyth Decl., App’x A, Tab 5 at 2 (facsimile transmittal page from eRiver Neurology); id., App’x A, Tab 8 at 2 (HIPAA authorization signed by Ms. Rodriguez authorizing release of AR.’s records to plaintiffs’ coun’sel); id., App’x A, Tab 9 at 2 (cover letter to plaintiffs’ counsel describing photocopying fee from school district where A.R.’s evaluating occupational therapist was employed). These documents therefore seem like the type that likely could have been authenticated and certified, had plaintiffs had the opportunity to respond. Moreover, although the district court stated that these records were “inadmissible,” the court still considered them, reviewed them in some detail, and concluded that they were “insufficient to establish a medical condition that substantially limits one or more major life activities.” Rodriguez I, 2013 WL 5592703, at *6-8. Accordingly, although we conclude that the non-medical evidence discussed above is sufficient to raise a genuine dispute as to the extent of AR.’s limitations, we will consider these medical records as well. Cf. Sony Corp. v." }, { "docid": "22106319", "title": "", "text": "as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” See also Ricketts v. City of Hartford, 74 F.3d 1397, 1409 (2d Cir.1996); United States v. Sliker, 751 F.2d 477, 496-500 (2d Cir.1984) (discussing the interaction between Fed. R.Evid. 104 and 901). Rule 901 “does not erect a particularly high hurdle,” United States v. Ortiz, 966 F.2d 707, 716 (1st Cir.1992), and the proponent of the evidence is not required “to rule out all possibilities inconsistent with authenticity, or to prove beyond any doubt that the evidence is what it purports to be.” United States v. Pluta, 176 F.3d 43, 49 (2d Cir.) (internal quotation marks omitted), cert. denied, 528 U.S. 906, 120 S.Ct. 248, 145 L.Ed.2d 208 (1999). The requirement under Rule 901 is satisfied “if sufficient proof has been introduced so that a reasonable juror could find in favor of authenticity or identification.” United States v. Ruggiero, 928 F.2d 1289, 1303 (2d Cir.1991) (quotation marks omitted); see also Pluta, 176 F.3d at 49 (“[T]he standard for authentication, and hence for admissibility, is one of reasonable likelihood.”) (quotation marks omitted); Ortiz, 966 F.2d at 716 (“If in the court’s judgment it seems reasonably probable that the evidence is what it purports to be, the command of Rule 901(a) is satisfied, and the evidence’s persuasive force is left to the jury.”) (quotation marks omitted). The trial court has broad discretion in determining whether an item of evidence has been properly authenticated, and we review its ruling only for abuse of discretion. See Pluta, 176 F.3d at 49; see also Ruggiero, 928 F.2d at 1303. “A telephone conversation is admissible in evidence if the identity of the speaker is satisfactorily established.” United States v. Albergo, 539 F.2d 860, 863-64 (2d Cir.1976). “While a mere assertion of identity by a person talking on the telephone is not in itself sufficient to authenticate that person’s identity, some additional evidence, which ‘need not fall in[to] any set pattern,’ may provide the necessary foundation.” United States v. Khan, 53 F.3d" }, { "docid": "22106318", "title": "", "text": "and English, identified himself as “Gurmeet Singh” and asked Uberoi if she would convey a message to Satinderjit, whom he referred to as “Ladu.” The caller stated that he would have Satinderjit and Uberoi shot if Satin-derjit did not “stay out of his business and not mess around with the case.” Uberoi agreed to relay the message to Satinderjit, and did so later that day. A few days later, Uberoi received a second telephone call from an individual again identifying himself as Gurmeet Singh. The caller inquired about whether Uberoi conveyed his earlier message. Uberoi indicated that she had conveyed the message, but that Satinderjit “didn’t have much to say about it.” The caller then asked Uberoi if “[she] told [Satinderjit] that he would have us shot if [Satinderjit] didn’t stop messing around and to stay out of his business.” After Uberoi informed Satinderjit about the second call, he instructed her not to take similar calls in the future. Rule 901(a) of the Federal Rules of Evidence provides that “[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” See also Ricketts v. City of Hartford, 74 F.3d 1397, 1409 (2d Cir.1996); United States v. Sliker, 751 F.2d 477, 496-500 (2d Cir.1984) (discussing the interaction between Fed. R.Evid. 104 and 901). Rule 901 “does not erect a particularly high hurdle,” United States v. Ortiz, 966 F.2d 707, 716 (1st Cir.1992), and the proponent of the evidence is not required “to rule out all possibilities inconsistent with authenticity, or to prove beyond any doubt that the evidence is what it purports to be.” United States v. Pluta, 176 F.3d 43, 49 (2d Cir.) (internal quotation marks omitted), cert. denied, 528 U.S. 906, 120 S.Ct. 248, 145 L.Ed.2d 208 (1999). The requirement under Rule 901 is satisfied “if sufficient proof has been introduced so that a reasonable juror could find in favor of authenticity or identification.” United States v. Ruggiero, 928 F.2d 1289, 1303 (2d Cir.1991) (quotation marks omitted); see also" }, { "docid": "11708594", "title": "", "text": "reliability of the receipts as proof of Tin Yat Chin’s alibi, but the district court applied an unreasonably high standard for their authentication under Rule 901. A district court has broad discretion to determine whether a piece of evidence has been properly authenticated. United States v. Tropeano, 252 F.3d 653, 661 (2d Cir.2001). Rule 901 provides that “[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Fed. R.Evid. 901(a). Rule 901 “does not erect a particularly high hurdle,” and that hurdle may be cleared by “circumstantial evidence.” United States v. Dhinsa, 243 F.3d 635, 658-59 (2d Cir.2001)-(internal citation and quotation marks omitted). The proponent is not required- “to rule out all possibilities inconsistent with authenticity, or to prove beyond any doubt that the evidence is what it purports to be.” United States v. Pluta, 176 F.3d 43, 49 (2d Cir.1999) (internal citation and quotation marks omitted). Rule 901’s requirements are satisfied “if sufficient proof has been introduced so that a reasonable juror could find in favor of authenticity or identification.” Id. (internal citation and quotations omitted). Once Rule 901’s requirements are satisfied, “ ‘the evidence’s persuasive force is left to the jury.’ ” Dhinsa, 243 F.3d at 658 (quoting United States v. Ortiz, 966 F.2d 707, 716 (1st Cir.1992)); see also Tropeano, 252 F.3d at 661 (“Authentication of course merely renders [evidence] admissible, leaving the issue of ... ultimate reliability to the jury.”). As we recently explained in SCS Communications, Inc. v. The Herrick Co., 360 F.3d 329, 344-45 (2d Cir.2004), the other party then remains free to challenge the reliability of the evidence, to minimize its importance, or to argue alternative interpretations of its meaning, but these and similar other challenges go to the weight of the evidence— not to its admissibility. The evidence that the receipts were signed by Tin Yat Chin at the times and places where they were generated is contradicted by testimony of Government witnesses who place him in China in July 1999." }, { "docid": "23482223", "title": "", "text": "conversation in order to authenticate the recording; it may lay the foundation for the recording through the testimony of the technician who actually made it.”); United States v. Rizzo, 492 F.2d 443, 448 (2d Cir.1974) (holding that voice identification by three detectives was sufficient); United States v. Albert, 595 F.2d 283, 290 (5th Cir.1979) (voice identification by conversation participant proper); see also Pluta, 176 F.3d at 49 (“The burden of authentication does not require the proponent of the evidence to rule out all possibilities inconsistent with authenticity, or to prove beyond any doubt that the evidence is what it purports to be. Rather, the standard for authentication, and hence for admissibility, is one of reasonable likelihood.” (quoting United States v. Holmquist, 36 F.3d 154, 168 (1st Cir.1994)). Finally, Fuentes also noted that “this Circuit has never expressly adopted a rigid standard for determining the admissibility of tape recordings.” 563 F.2d at 532. The district court therefore did not abuse its discretion in admitting the tapes. Authentication of course merely renders the tapes admissible, leaving the issue of their ultimate reliability to the jury. Barroso was free to challenge the tapes’ reliability by, for example, cross-examination of the brokers concerning their familiarity with Barroso’s voice and the tape recording system. Any doubts raised by such a challenge would, however, go to the weight to be given to the tapes by the jury, not to their admissibility. See United States v. Sovie, 122 F.3d 122, 127-28 (2d Cir.1997); Albert, 595 F.2d at 290. We therefore affirm. (o ¡KEY NUMBER SYSTEM > . Once the district court agreed to admit Frederick’s follow-up statement that he had conspired with \"Marlon Tropeano,\" defense counsel informed the court that it was no longer seeking redaction of the Tropeanos’ statements that they had conspired \"with others.” . The Sixth Amendment reads in pertinent part: \"In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him....” U.S, Const, amend. VI. . The government, and to some degree the district court, relied upon appellant’s success-statement that he conspired with Marlon to" }, { "docid": "23362489", "title": "", "text": "circumstances, Appellant’s Br. at 72, Gagliardi submits that the government failed to establish authenticity and the trial court therefore erred in admitting the evidence. We disagree. We review a district court’s evidentiary rulings for abuse of discretion. Reilly v. Natwest Mkts. Group Inc., 181 F.3d 253, 266 (2d Cir.1999). The bar for authentication of evidence is not particularly high. United States v. Dhinsa, 243 F.3d 635, 658 (2d Cir.2001). “The requirement of authentication ... is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Fed.R.Evid. 901(a). Generally, a document is properly authenticated if a reasonable juror could find in favor of authenticity. United States v. Tin Yat Chin, 371 F.3d 31, 38 (2d Cir.2004). The proponent need not “rule out all possibilities inconsistent with authenticity, or to prove beyond any doubt that the evidence is what it purports to be.” United States v. Pluto, 176 F.3d 43, 49 (2d Cir.1999) (internal quotation marks and citation omitted). We have stated that the standard for authentication is one of “reasonable likelihood,” id. (internal quotation marks and citation omitted), and is “minimal,” Tin Yat Chin, 371 F.3d at 38. The testimony of a witness with knowledge that a matter is what it is claimed to be is sufficient to satisfy this standard. See Fed.R.Evid. 901(b)(1). In this case, both the informant and Agent Berglas testified that the exhibits were in fact accurate records of Gagliardi’s conversations with Lorie and Julie. Based on their testimony, a reasonable juror could have found that the exhibits did represent those conversations, notwithstanding that the e-mails and online chats were editable. The district court did not abuse its discretion in admitting the documents into evidence. CONCLUSION For the foregoing reasons, the judgment of conviction is Affirmed." }, { "docid": "17457892", "title": "", "text": "that the exhibits in question were authentic records of those entities. HAG is also correct that the Rules of Evidence apply on a motion for summary judgment. See Raskin v. Wyatt Co., 125 F.3d 55, 65 (2d Cir.1997). However, notwithstanding the Deli’s regrettably casual approach to authentication, the Court’s judgment is the Chowhound and Korea Airline records are sufficiently authenticated to be admitted here. A district court has broad discretion over the admissibility of evidence. See Raskin, 125 F.3d at 65-66. The test for authentication under Federal Rule of Evidence 901 is, simply, whether a reasonable juror could find the proffered evidence authentic. See Fed.R.Evid. 901(a) (“The requirement of authentication ... is satisfied by evidence sufficient to support a finding that the matter in question is what is proponent claims.”); United States v. Tin Yat Chin, 371 F.3d 31, 38 (2d Cir.2004). Under Rule 901(a), “[t]he bar for authentication of evidence is not particularly high.” United States v. Gagliardi, 506 F.3d 140, 151 (2d Cir.2007) (citing United States v. Dhinsa, 243 F.3d 635, 658 (2d Cir.2001)). The proponent need not “rule out all possibilities inconsistent with authenticity, or to prove beyond any doubt that the evidence is what it purports to be.” Gagliardi, 506 F.3d at 151 (citing United States v. Pluto, 176 F.3d 43, 49 (2d Cir.1999)). Rather, a document may be authenticated based on its “appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances,” Fed. R.Evid. 901(b)(4), and circumstantial evidence may establish authenticity. See United States v. Bagaric, 706 F.2d 42, 67 (2d Cir.1983), abrogated in part on other grounds by Nat’l Org. for Women Inc. v. Scheidler, 510 U.S. 249, 114 S.Ct. 798, 127 L.Ed.2d 99 (1994); United States v. Holmquist, 36 F.3d 154, 167 (1st Cir.1994); Denison v. Swaco Geolograph Co., 941 F.2d 1416, 1423 (10th Cir.1991); John Paul Mitchell Sys. v. Quality King Distribs. Inc., 106 F.Supp.2d 462, 472 (S.D.N.Y.2000). Such evidence can include a document’s appearance and content. See John Paul Mitchell, 106 F.Supp.2d at 472; Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 556 (D.Md.2007). Newspaper and" } ]

[ { "docid": "22381796", "title": "", "text": "Per Curiam. A clerk in a Tulsa, Okla., grocery store was shot and killed by a companion of petitioner in the course of a robbery of the store by the two men. Petitioner was convicted of felony-murder in Oklahoma State court. The opinion of the Oklahoma Court of Criminal Appeals in this case states that “[i]n a felony murder case, the proof of the underlying felony [here robbery with firearms] is needed to prove the intent necessary for a felony murder conviction.” 555 P. 2d 76, 80-81 (1976). Petitioner nevertheless was thereafter brought to trial and convicted on a separate information charging the robbery with firearms, after denial of his motion to dismiss on the ground that this prosecution violated the Double Jeopardy Clause of the Fifth Amendment because he had been already convicted of the offense in the felony-murder trial. The Oklahoma Court of Criminal Appeals affirmed. When, as here, conviction of a greater crime, murder, cannot be had without conviction of the lesser crime, robbery with firearms, the Double Jeopardy Clause bars prosecution for the lesser crime after conviction of the greater one. In re Nielsen, 131 U. S. 176 (1889); cf. Brown v. Ohio, 432 U. S. 161 (1977). “[A] person [who] has been tried and convicted for a crime which has various incidents included in it, . . . cannot be a second time tried for one of those incidents without being twice put in jeopardy for the same offence.” In re Nielsen, supra, at 188. See also Waller v. Florida, 397 U. S. 387 (1970); Grafton v. United States, 206 U. S. 333, 352 (1907). The motion for leave to proceed in forma pauperis is granted, the petition for writ of certiorari is granted, and the judgment of the Court of Criminal Appeals is Reversed. The State conceded in its response to the petition for certiorari that “in the Murder case, it was necessary for all the ingredients of the under lying felony of Robbery with Firearms to be proved . . . .” Brief in Opposition 4. Mr. Justice Brennan, with whom Mr. Justice" } ]

[ { "docid": "6803118", "title": "", "text": "act constituting evasion or attempted evasion of the tax. In the abstract, the offense of false filing has an element not required for tax evasion — i.e., the filing of a return. However, we do not decide the issue at hand in the abstract. See Illinois v. Vitale, 447 U.S. 410, 419-21, 100 S.Ct. 2260, 2266-67, 65 L.Ed.2d 228 (1980). In Vitale, the Supreme Court noted that “[t]he mere possibility that the State will seek to rely on all of the ingredients necessarily included in the [lesser included offense] to establish an element of its manslaughter case [the greater offense] would not be sufficient to bar the latter prosecution [for the greater offense].” Id. However, the Court qualified that statement by adding that if the government did in fact rely on and prove the lesser included offense as the act necessary to prove the greater offense, the defendant would have a substantial double jeopardy claim under Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977). In this regard the Court said: In Harris, we held, without dissent, that a defendant’s conviction for felony murder based on a killing in the course of an armed robbery barred a subsequent prosecution against the same defendant for the robbery. The Oklahoma felony-murder statute on its face did not require proof of a robbery to establish felony murder; other felonies could underlie a felony-murder prosecution. But for the purposes of the Double Jeopardy Clause, we did not consider the crime generally described as felony murder as a separate offense distinct from its various elements. Rather, we treated a killing in the course of a robbery as itself a separate statutory offense, and the robbery as a species of lesser-included offense. The State conceded that the robbery for which petitioner had been indict ed was in fact the underlying felony, all elements of which had been proved in the murder prosecution. We held the subsequent robbery prosecution barred under the Double Jeopardy Clause, since under In re Nielsen, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118 (1889), a person who" }, { "docid": "18600344", "title": "", "text": "same proof the State subsequently offered in the adultery prosecution, namely that Nielsen had sexual intercourse with a woman outside of a legal marriage. Having once convicted him of this conduct on a cohabitation charge, the State could not reprosecute him for the same conduct on an adultery charge. The rule to be derived from Nielsen is clarified in Harris v. Oklahoma and Illinois v. Vitale. In Harris, the Court held that a defendant who had been convicted of felony-murder could not subsequently be prosecuted for the felony underlying the prior conviction: “When, as here, conviction of a greater crime, murder, cannot be had without conviction of the lesser crime, robbery with firearms, the Double Jeopardy Clause bars prosecution for the lesser crime after conviction of the greater one.” Under Blockburger, robbery was not, strictly speaking, a lesser-included offense of felony-murder as the felony-murder statute allowed proof of the crime by a number of felonies other than armed robbery. Nevertheless, Harris committed no predicate felony other than robbery, and the State conceded that “in the Murder case, it was necessary for all the ingredients of the underlying felony of Robbery with Firearms to be proved.” Because proof of the robbery was indispensable to the murder conviction, the Court held subsequent prosecution for robbery barred. Similarly, in Vitale, the Court held that the defendant “would have a substantial claim of double jeopardy” if the State sought to prove manslaughter charges against him by offering evidence of his failure to slow his automobile to avoid an accident, an offense for which he had already been convicted. That a manslaughter conviction might hypothetically rest on proof of other reckless acts would not justify reprosecution if in fact the State had to rely on evidence undergirding the first conviction in order to obtain the second. Under the test established in these cases, Rubino’s second prosecution did not put him twice in jeopardy. Although in trying Rubino for aggravated kidnapping the State offered evidence that he shot at Weitzman, proof of the attempted murder was not necessary to obtain the kidnapping conviction because the State" }, { "docid": "1341650", "title": "", "text": "See 18 U.S.C. § 1111(a). Accordingly, where felony murder is premised on kidnapping, all the facts required to prove kidnapping are also required to prove felony murder. In such circumstances, kidnapping would constitute a lesser included offense of felony murder. See, e.g., United States v. Chalan, 812 F.2d 1302, 1316-17 (10th Cir.1987) (concluding that, because all the facts needed to establish robbery in violation of 18 U.S.C. § 2111 are also needed to prove felony murder predicated on robbery in violation of 18 U.S.C. § 1111(a), the two offenses are the “same” for double jeopardy purposes). But even if kidnapping is a lesser included offense of the felony mur der count in Howe II, this case does not involve successive prosecutions for felony murder and the lesser included felony. Rather, the government is attempting to complete a single prosecution for both felony murder and one of the lesser included felonies. As relevant to this appeal, what the Double Jeopardy Clause prohibits is “a successive trial on an offense not charged in the original indictment once jeopardy has already terminated on, what is for double jeopardy purposes, the same offense.” United States v. Jose, 425 F.3d 1237, 1241 (9th Cir.2005) (emphasis added) (internal quotation omitted). Thus, for example, in Ex Parte Nielsen, the Supreme Court held that a defendant previously indicted for, and convicted of, cohabiting with a woman could not be subsequently tried for the separately indicted included offense of adultery. 131 U.S. 176, 187, 9 S.Ct. 672, 33 L.Ed. 118 (1889). Similarly, in Harris v. Oklahoma, the Court held that a defendant previously indicted for, and convicted of felony murder, could not be subsequently tried for the separately indicted underlying felony of armed robbery. 433 U.S. 682, 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977) (per curiam). But here, both the greater and lesser offenses were properly included in the original indictment and tried together in a single trial. And, although the jury acquitted Howe on the greater offense of felony murder, it hung on the lesser included offense of kidnapping. In such circum stances, the courts have uniformly" }, { "docid": "19837016", "title": "", "text": "that denied relief to Rashad. It seems clear to me that there were separate offenses in this case, discovered at different times and at different places. I find no basis to conclude, as does the majority, that what was involved here was “prosecuto-rial expediency” or “strategic maneuvering.” Jordan v. Commonwealth of Virginia, 653 F.2d 870 (4th Cir.1980), relied upon by the majority is not even close on its facts to the instant case. Defendant Jordan committed the offenses in controversy “over a period of a few minutes” — one for obtaining a drug by forged prescription and one for possession of that drug. This was obviously “closely related conduct.” Id. at 871, 872. Evidence used to convict on the first offense “would totally have sufficed to sustain the later felony conviction.” Id. at 874. It was also, in Jordan, a “continuing offense.” Id. at 875. The case under consideration in this appeal is vastly different. In re Nielsen, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118 (1889), also mentioned by the majority, is similarly of no help to Rashad’s cause, in my view. Nielsen involved two charges occurring one day apart: (1) unlawful cohabitation with more than one woman, and (2) adultery with one of the women involved in the first charge. The Supreme Court, on those entirely different facts, found a double jeopardy violation. That ease simply cannot be a basis for finding a double jeopardy violation for separate caches of drugs, separate and divergent times and places of discovery, and by different police officers after an intervening informant’s intelligence. Nor is Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), really applicable to support the majority in this case. The two charges found to involve double jeopardy in Brown were stealing an automobile following conviction for the lesser-included offense of operating the same vehicle without the owner’s consent. The majority, in the instant case, finds “the Blockburger test” to be “insufficient” on these facts, yet Brown relied principally upon Blockburger v. United States, 284 U.S. 299, 302, 52 S.Ct. 180, 181, 76 L.Ed." }, { "docid": "18168270", "title": "", "text": "statutes. 18 U.S.C. § 1961(1). . Although Esposito’s brief focuses on Count II of the Accetturo indictment, the substantive RICO offense, he refers to three of the four counts on which he was indicted in his supplemental letters sent at the request of the court. As will be developed in the text hereafter, a prior conspiracy prosecution would impose no double jeopardy bar, see Iannelli v. United States, 420 U.S. 770, 779, 95 S.Ct. 1284, 1290, 43 L.Ed.2d 616 (1975), and thus neither Count I (conspiracy to violate RICO) nor Count III (conspiracy to distribute and possess cocaine) will be addressed independently. . The Fifth Amendment, applicable to the states through the Fourteenth Amendment, provides: \"nor should any person be subject for the same offense to be twice put in jeopardy of life or limb.\" . We note with interest that in the more recent Supreme Court cases applying the lesser included offense doctrine the defendant had been convicted in the first proceeding, see, e.g., Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977) (per curiam) (conviction of felony-murder during armed robbery bars prosecution for robbery with firearms); Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977) (conviction for lesser included offense of operating a vehicle without the owner's consent bars prosecution for crime of stealing the automobile); Jeffers, 432 U.S. 137, 148-50, 97 S.Ct. 2207, 2214-15, 53 L.Ed.2d 168 (1977) (conspiracy to distribute drugs in violation of 21 U.S.C. § 846 is lesser included offense of conducting a CCE to violate drug laws in violation of 21 U.S.C. § 848). But see Garrett, 471 U.S. at 796, 105 S.Ct. at 2420 (O’Connor, J., concurring) (Brown \"held that the Double Jeopardy Clause prohibits prosecution of a defendant for a greater offense when he has already been tried and acquitted or convicted on a lesser included offense.\"). There is some suggestion in the Supreme Court opinions that it is the constitutional collateral estoppel principle embodied in the Double Jeopardy Clause (as distinguished from the lesser included offense doctrine) which protects a defendant who" }, { "docid": "22098106", "title": "", "text": "murder) and the underlying felony. See Mo. Rev. Stat. § 565.021(2) (1986). Even if the Double Jeopardy Clause provided an absolute bar to multiple punishments in a single trial regardless of legislative intent, see Missouri v. Hunter, 459 U. S. 359, 369 (1983) (Marshall, J., dissenting), the fact would remain that respondent is now serving only a single sentence for a single offense. Under any view of the substantive content of the double jeopardy bar against multiple punishments, respondent has had every benefit the Clause affords. The Court of Appeals’ conclusion that the state court could not cure the double jeopardy violation through the alternative procedure approved in Moms v. Mathews, 475 U. S. 237 (1986), is therefore difficult to understand. In Matheios, we held that a violation of the double jeopardy rule against multiple punishments for the same offense in successive trials could be cured by resentencing to a lesser included offense that was not jeopardy barred. In that case, Mathews was first convicted of aggravated robbery. In a separate trial, he was then convicted of felony murder based on the robbery. The second conviction violated the Double Jeopardy Clause. See, e. g., Harris v. Oklahoma, 433 U. S. 682 (1977) (per curiam) (successive prosecutions for felony murder and the underlying felony a double jeopardy violation). Yet Mathews’ conviction of felony murder necessarily entailed a jury finding that he was guilty of the lesser included offense of nonfelony murder. Because nonfelony murder is not the “same offense” as aggravated robbery, there was no double jeopardy bar to a successive prosecution for that offense. We therefore held that the violation could be cured by resentencing respondent for nonfelony murder, unless Mathews could show prejudice from the admission of evidence on the felony-murder charge that would not have been admissible as to nonfelony murder, in which case he would be entitled to a new trial. The Court of Appeals concluded that Mathews was not applicable to this case because the prisoner in Mathews had not completed his sentence for robbery prior to the resentencing for nonfelony murder, while here Thomas satisfied" }, { "docid": "7984594", "title": "", "text": "(holding that appellant, who had been tried and convicted of felony murder, could not be subsequently tried under a separate indictment for the predicate felony); and Ex parte Nielsen, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118 (1889) (holding that appellant, who had been convicted of cohabiting with more than one woman, could not be subsequently tried under a separóle indictment for the included offense of adultery). Importantly, none of the cases appellants cite in support of this contention involves a situation such as the one here, in which the lesser and greater offenses were charged in one indictment and tried in one case. Vitale, Harris, and Nielsen all involved successive prosecutions in which jeopardy had terminated after a final judgment on a separately indicted lesser or greater offense. They do not speak to the “hybrid” situation in which jeopardy terminated on the lesser included offense but continued on the greater offense by virtue of the defendant’s successful appeal and reversal of that conviction. Appellants insist that the fact “that there is only one indictment makes no difference.” It makes all the difference. Suppose appellants had been charged solely with felony murder and jeopardy terminated on that charge by virtue of an acquittal or final conviction. If the government subsequently sought to try appellants for the lesser included predicate felonies, it would be constitutionally barred from doing so under Nielsen and its progeny. See, e.g., Nielsen, 131 U.S. at 187-88, 9 S.Ct. 672; Brown, 432 U.S. at 169, 97 S.Ct. 2221. Appellants insist that this principle extends to the retrial of a greater offense where the convictions on its lesser included offenses have become final, notwithstanding that both the greater and lesser offenses were initially tried together. Appellants would have us overlook the fact that “there is a difference between separate,- successive trials of greater and lesser offenses, and the different situation in which both are tried together....” United States v. DeVincent, 632 F.2d 155, 158 (1st Cir.1980). The Double Jeopardy Clause embodies two concepts, whose aims serve as its twin rationale — “principles of finality and prosecutorial overreaching.”" }, { "docid": "7984593", "title": "", "text": "double jeopardy questions that may' arise when a defendant is retried on the same charge after ... a conviction is reversed on appeal.” Id. at 165 n. 5, 97 S.Ct. 2221. The appellants nonetheless seek to harness Brown in the service of carving out an exception to the “continuing jeopardy” rule of Ball. That is, the appellants argue that Brown — as well as other double jeopardy cases barring subsequent prosecution on separately indicted lesser or greater offenses — creates a bar to retrial after a successful appeal of a greater offense, when conviction on a lesser offense under the same indictment has become final. Specifically, appellants cite to, Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980) (holding that appellant, who had been convicted for failing to reduce speed to avoid an accident, could not be subsequently indicted and tried for involuntary vehicular manslaughter if the later chargé subsumed all of the elements of the first conviction); Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977) (holding that appellant, who had been tried and convicted of felony murder, could not be subsequently tried under a separate indictment for the predicate felony); and Ex parte Nielsen, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118 (1889) (holding that appellant, who had been convicted of cohabiting with more than one woman, could not be subsequently tried under a separóle indictment for the included offense of adultery). Importantly, none of the cases appellants cite in support of this contention involves a situation such as the one here, in which the lesser and greater offenses were charged in one indictment and tried in one case. Vitale, Harris, and Nielsen all involved successive prosecutions in which jeopardy had terminated after a final judgment on a separately indicted lesser or greater offense. They do not speak to the “hybrid” situation in which jeopardy terminated on the lesser included offense but continued on the greater offense by virtue of the defendant’s successful appeal and reversal of that conviction. Appellants insist that the fact “that there is only one" }, { "docid": "9489865", "title": "", "text": "3 n. 1 (acknowledging that, at the time he pleaded guilty to arson, it “was unlikely that a homicide proceeding would be held” because “for two years after the incident, there was no indication that Wendy Kornegay would die from the injuries she allegedly sustained as a result of the fire”). Therefore, it was objectively reasonable for the state court to conclude there was no constitutional error in admitting petitioner’s plea allocution at his subsequent trial, and his claim for habeas corpus relief must be denied. Double Jeopardy Petitioner also argues that he was twice prosecuted for the same offense in violation of the Double Jeopardy Clause. The test for determining whether two crimes constitute the same offense for double jeopardy purposes was set forth by the Supreme Court in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932): “[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.” Under Blockburger, an individual may not be successively prosecuted for both a greater and lesser-included offense because the lesser offense requires no proof beyond that which is required for conviction of the greater offense. See Brown v. Ohio, 432 U.S. 161, 168-69, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). Based upon this analysis, “the crime generally described as felony murder” is not, for double jeopardy purposes, “a separate offense distinct from its various elements;” rather, the Supreme Court treats the substantive criminal offense underlying the felony murder charge as “a species of lesser-included offense.” Illinois v. Vitale, 447 U.S. 410, 420-21, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980); See also Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977) (per curiam) (conviction of felony murder, where robbery with firearms was the underlying felony, barred subsequent prosecution on charge of robbery with firearms). Petitioner’s case falls within an exception to the general rule outlined in Blockburger and its" }, { "docid": "20391308", "title": "", "text": "its jury instructions, that Delgado “had a fully-form [sic], and conscious intent to commit the offense of murder in that structure,” Trial Transcript at 1513 — the charge of premeditated murder in his second trial did not “require[ ] proof of a fact which the [felony murder did] not.” See Blockburger v. United States, 284 U.S. 299, 304, 52 5.Ct. 180, 76 L.Ed. 306 (1932) (“The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.”); Brown v. Ohio, 432 U.S. 161, 166, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); Ex parte Nielsen, 131 U.S. 176, 188-89, 9 S.Ct. 672, 33 L.Ed. 118 (1889) (“[I]t seems to us very clear that where, as in this case, a person has been tried and convicted for a crime which has various incidents included in it, he cannot be a second time tried for one of those incidents without being twice put in jeopardy for the same offense.”). And, third, because the Constitution’s bar on successive prosecutions for the “same offense” necessarily bars prosecutions for lesser- (and greater-) included offenses, see Brown, 432 U.S. at 168, 97 S.Ct. 2221 (defining a lesser-included offense as an offense “requir[ing] no proof beyond that which is required for conviction of the greater”), the State was prohibited from retrying him for premeditated murder in a second trial. Delgado further argues that the Florida Supreme Court’s decision “was contrary to, or involved an unreasonable application of, clearly established Federal law” because the court refused to look beyond the statutory elements of felony murder and premeditated murder to the description of those elements presented to the jury at trial. He grounds this argument in Ex parte Nielsen, 131 U.S. at 188-89, 9 S.Ct. 672, and its progeny, which he interprets as requiring more than an abstract statutory comparison of elements in a successive prosecution case like his. He also cites our own" }, { "docid": "1341651", "title": "", "text": "jeopardy has already terminated on, what is for double jeopardy purposes, the same offense.” United States v. Jose, 425 F.3d 1237, 1241 (9th Cir.2005) (emphasis added) (internal quotation omitted). Thus, for example, in Ex Parte Nielsen, the Supreme Court held that a defendant previously indicted for, and convicted of, cohabiting with a woman could not be subsequently tried for the separately indicted included offense of adultery. 131 U.S. 176, 187, 9 S.Ct. 672, 33 L.Ed. 118 (1889). Similarly, in Harris v. Oklahoma, the Court held that a defendant previously indicted for, and convicted of felony murder, could not be subsequently tried for the separately indicted underlying felony of armed robbery. 433 U.S. 682, 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977) (per curiam). But here, both the greater and lesser offenses were properly included in the original indictment and tried together in a single trial. And, although the jury acquitted Howe on the greater offense of felony murder, it hung on the lesser included offense of kidnapping. In such circum stances, the courts have uniformly concluded that jeopardy continues as to the lesser offense, notwithstanding the defendant’s acquittal on the greater offense. See, e.g., Forsberg v. United States, 351 F.2d 242, 248 (9th Cir.1965); United States v. Scott, 464 F.2d 832, 834 (D.C.Cir.1972); United States v. Larkin, 605 F.2d 1360, 1368-69 (5th Cir.1979), modified on other grounds, 611 F.2d 585 (5th Cir.1980); see also United States v. Chestaro, 197 F.3d 600, 608-09 (2d Cir.1999); Jose, 425 F.3d at 1243-45. We realize, of course, that the government is now proceeding under a new indictment. As discussed above, after Howe’s first trial, the government moved to dismiss the Howe I indictment without prejudice, the motion was granted over Howe’s objection, and the government subsequently returned the Howe II indictment, which is the subject of this appeal. But that procedural wrinkle does not affect the outcome of this case because the government did not seek dismissal of the original indictment so it could separately indict Howe for the lesser included offense of kidnapping after he was acquitted of felony murder. Rather, Howe was" }, { "docid": "22709388", "title": "", "text": "would constitute double jeopardy under Brown v. Ohio. In any event, it may be that to sustain its manslaughter case the State may find it necessary to prove a failure to slow or to rely on conduct necessarily involving such failure; it may concede as much prior to trial. In that case, because Vitale has already been convicted for conduct that is a necessary element of the more serious crime for which he has been charged, his claim of double jeopardy would be substantial under Brown and our later decision in Harris v. Oklahoma, 433 U. S. 682 (1977). In Harris, we held, without dissent, that a defendant’s conviction for felony murder based on a killing in the course of an armed robbery barred a subsequent prosecution against the same defendant for the robbery. The Oklahoma felony-murder statute on its face did not require proof of a robbery to establish felony murder; other felonies could underlie a felony-murder prosecution. But for the purposes of the Double Jeopardy Clause, we did not consider the crime generally described as felony murder as a separate offense distinct from its various elements. Rather, we treated a killing in the course of a robbery as itself a separate statutory offense, and the robbery as a species of lesser-included offense. The State conceded that the robbery for which petitioner had been indicted was in fact the underlying felony, all elements of which had been proved in the murder prosecution. We held the subsequent robbery prosecution barred under the Double Jeopardy Clause, since under In re Nielsen, 131 U. S. 176 (1889), a person who has been convicted of a crime having several elements included in it may not subsequently be tried for a lesser-included offense — an offense consisting solely of one or more of the elements of the crime for which he has already been convicted. Under Brown, the reverse is also true; a conviction on a lesser-included offense bars subsequent trial on the greater offense. By analogy, if in the pending manslaughter prosecution Illinois relies on and proves a failure to slow to avoid" }, { "docid": "129135", "title": "", "text": "robbery and second degree felony-murder. The Double Jeopardy Clause prohibits prosecution and conviction for both felony-murder and the enumerated felony. Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977); Stephens v. Zant, 631 F.2d 397 (5th Cir.1980), reversed on other grounds, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983). The underlying felony is considered a lesser-included offense of felony-murder and thus the “same offense” for double jeopardy purposes. Stephens, 631 F.2d at 401. In Harris, the Supreme Court held that a defendant’s conviction for felony-murder based on a killing in the course of an armed robbery barred a subsequent prosecution against the same defendant for the armed robbery. 433 U.S. at 682, 97 S.Ct. at 2913, 53 L.Ed.2d at 1056. Harris involved an initial conviction of felony-murder and a subsequent prosecution for a lesser-included offense, but the reverse of Harris is also true — a conviction on a lesser-included offense bars subsequent trial on the greater offense. Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). Although Harris and Brown seem to call for reversal of Sekou’s second degree felony-murder conviction, subsequent case law in both the Supreme Court and the Fifth Circuit sheds significant additional light on this issue. In Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980), the Supreme Court explained its decision in Harris, stating that a key ingredient of the Harris holding was the state’s concession that the robbery for which the defendant had been indicted was in fact the underlying felony which had been proved in the earlier felony-murder prosecution. Vitale, 447 U.S. at 420-21, 100 S.Ct. at 2267, 65 L.Ed.2d at 238. Had that not been the case — for example, had the underlying felony been kidnapping — the armed robbery would not be a lesser included offense of the felony-murder. Therefore, in the present appeal, if the state could have proved felony-murder without also proving armed robbery, then the successive prosecutions do not constitute prosecutions for the “same offense” within the meaning of the Double Jeopardy Clause. See" }, { "docid": "129134", "title": "", "text": "was to run concurrently with the 99-year armed robbery sentence. After exhausting his state court remedies, Sekou sought federal habeas corpus relief on November 26, 1984. The District Court denied the petition and this appeal followed. We affirm. One Lump or Two? Sekou’s primary argument on appeal is that his armed robbery conviction and the conviction based on his subsequent plea to second degree felony-murder constitute two convictions for the same offense in violation of the Double Jeopardy Clause. First, Sekou claims that he was twice convicted of felony-murder, arguing that his first trial was in reality a prosecution for the whole course of criminal activity rather than just the armed robbery. Our examination of the record of Sekou’s first conviction indicates that there is no merit to this argument. Moreover, Sekou’s appeal to the Supreme Court of Louisiana conclusively demonstrates that his first conviction was for armed robbery. State v. Dominick, 354 So.2d 1316 (La.1978). Thus, the two convictions involved in this appeal, and on which Sekou’s double jeopardy claims must rest, are armed robbery and second degree felony-murder. The Double Jeopardy Clause prohibits prosecution and conviction for both felony-murder and the enumerated felony. Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977); Stephens v. Zant, 631 F.2d 397 (5th Cir.1980), reversed on other grounds, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983). The underlying felony is considered a lesser-included offense of felony-murder and thus the “same offense” for double jeopardy purposes. Stephens, 631 F.2d at 401. In Harris, the Supreme Court held that a defendant’s conviction for felony-murder based on a killing in the course of an armed robbery barred a subsequent prosecution against the same defendant for the armed robbery. 433 U.S. at 682, 97 S.Ct. at 2913, 53 L.Ed.2d at 1056. Harris involved an initial conviction of felony-murder and a subsequent prosecution for a lesser-included offense, but the reverse of Harris is also true — a conviction on a lesser-included offense bars subsequent trial on the greater offense. Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187" }, { "docid": "20391307", "title": "", "text": "I, the Florida Supreme Court found the prosecution’s trial evidence was insufficient to sustain its charge of felony murder on the basis of burglary and, consequently, judicially acquitted Delgado of felony murder and burglary. See United States v. Martin Linen Supply Co., 430 U.S. 564, 571, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977) (defining a judicial “acquittal” as a ruling by the court in favor of the defendant that, “whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged”). Just like a favorable jury verdict, such an acquittal trig gers the full protections of the Double Jeopardy Clause and bars any subsequent jeopardy for the “same offense.” See Burks, 437 U.S. at 15, 98 S.Ct. 2141. Second, under Florida’s peculiar burglary law, Delgado’s premeditated murder charge was a lesser-included offense of his felony-murder charge. Because the felony murder was predicated upon burglary, and that burglary was itself predicated upon the crime of premeditated murder — requiring, in the words of the court in its jury instructions, that Delgado “had a fully-form [sic], and conscious intent to commit the offense of murder in that structure,” Trial Transcript at 1513 — the charge of premeditated murder in his second trial did not “require[ ] proof of a fact which the [felony murder did] not.” See Blockburger v. United States, 284 U.S. 299, 304, 52 5.Ct. 180, 76 L.Ed. 306 (1932) (“The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.”); Brown v. Ohio, 432 U.S. 161, 166, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); Ex parte Nielsen, 131 U.S. 176, 188-89, 9 S.Ct. 672, 33 L.Ed. 118 (1889) (“[I]t seems to us very clear that where, as in this case, a person has been tried and convicted for a crime which has various incidents included in it, he cannot be a second" }, { "docid": "637221", "title": "", "text": "to a non-jeopardy-barred lesser included offense.” Thomas v. Morris, 816 F.2d at 371. The defendant in Morris v. Mathews was first convicted of a charge of aggravated robbery. Subsequently, he was also convicted of a charge of felony murder when the State discovered he had committed a homicide along with the robbery. Morris v. Mathews, 475 U.S. at 241, 106 S.Ct. at 1035. The Supreme Court held the two convictions violated the double jeopardy clause. Id. at 244, 106 S.Ct. at 1037. The Court concluded, however, that the jury had implicitly found the defendant guilty of the lesser included offense of murder, which was not jeopardy-barred. The Court, therefore, held that modifying the felony murder conviction to a conviction for the lesser included offense of murder would cure the double jeopardy violation, so long as the defendant could not demonstrate prejudice from being charged with the felony murder offense. Id. The critical difference between Mathews and the present case is that the defendant in Mathews had not fully satisfied either the sentence for the aggravated robbery or the sentence for the felony murder. In the present case Thomas had fully satisfied the sentence for the attempted robbery. This same important distinction runs through the cases of Lange, Bradley, Edick, Holmes, and Holbrook, a distinction which we find determinative here. The State lastly argues that the present case is distinguishable from Lange and Bradley because those cases dealt with multiple punishments of a different quality, imprisonment and a fine. The State cites no authority, and we believe there is none, for the proposition that the double jeopardy clause permits multiple punishments of a similar quality for the same offense. In summary, we hold that Thomas had legally satisfied the 15-year sentence for the attempted robbery and that his continued confinement for the felony murder offense violated his double jeopardy rights. Thus, we reverse the judgment of the district court and remand the case to the district court with instructions to issue the writ of habeas corpus in accordance with this opinion. . The original panel opinion, Thomas v. Morris, 816 F.2d" }, { "docid": "6243312", "title": "", "text": "accomplice had robbed a grocery store, and in the course of the robbery the accomplice shot and killed a store clerk. The petitioner was first tried and convicted of felony murder, with the State citing armed robbery as the underlying felony. Subsequently he was tried and convicted for the robbery itself. A unanimous Supreme Court vacated the second conviction: “When, as here, conviction of a greater crime, murder, cannot be had without conviction of the lesser crime, robbery with firearms, the Double Jeopardy Clause bars prosecution for the lesser crime, after conviction of the greater one.” Id. at 682, 97 S.Ct. at 2913. Although the Supreme Court did not expressly acknowledge the point, it was nonetheless clear from the state court’s opinion that a felony murder charge could have been predicated on a number of felonies other than armed robbery, see Harris v. State, 555 P.2d 76, 80 (Okl.Crim.App.1976), and consequently that robbery was not per se a lesser included offense in relation to felony murder. Three years later, in Vitale, the Court acknowledged the obvious implication of Hams — that one offense need not always constitute a lesser included offense of another in order to raise the double jeopardy bar, but that it may be recognized as such within the confines of an individual case. The Oklahoma felony-murder statute [at issue in Harris] on its face did not require proof of a robbery to establish felony murder; other felonies could underlie a felony-murder prosecution. But for the purposes of the Double Jeopardy Clause, we did not consider the crime generally described as felony murder as a separate offense distinct from its various elements. Rather, we treated a killing in the course of a robbery as itself a separate statutory offense, and the robbery as a species of lesser-included offense. 447 U.S. at 420, 100 S.Ct. at 2267 (footnote omitted). The Supreme Court’s more recent handling of Dixon, although it produced no majority opinion, confirms this point. In Dixon, the two respondents had been convicted of criminal contempt. One of the respondents, Dixon, by possessing cocaine with the intent to" }, { "docid": "22747492", "title": "", "text": "defendant’s acquittal in a previous trial for robbing a different participant in the same poker game had conclusively established that he was not present at the robbery. In In re Nielsen, 131 U. S. 176 (1889), the Court had held that a conviction for cohabiting with two wives over a 214-year period barred a subsequent prosecution for adultery with one of the wives on the day following the end of that period. Although application of the Blockburger test would have permitted the imposition of consecutive sentences in both cases, the Double Jeopardy Clause nonetheless barred these successive prosecutions. Brown, supra, at 166-167, n. 6. Furthermore, in the same Term we decided Brown, we reiterated in Harris v. Oklahoma, 433 U. S. 682 (1977), that a strict application of the Blockburger test is not the exclusive means of determining whether a subsequent prosecution violates the Double Jeopardy Clause. In Harris, the defendant was first convicted of felony murder after his companion shot a grocery store clerk in the course of a robbery. The State then indicted and convicted him for robbery with a firearm. The two prosecutions were not for the “same offense” under Blockburger since, as a statutory matter, felony murder could be established by proof of any felony, not just robbery, and robbery with a firearm did not require proof of a death. Nevertheless, because the State admitted that “ fit was necessary for all the ingredients of the underlying felony of Robbery with Firearms to be proved’ ” in the felony-murder trial, the Court unanimously held that the subsequent prosecution was barred by the Double Jeopardy Clause. Harris, supra, at 682-683, and n. (quoting Brief in Opposition 4). See also Payne v. Virginia, 468 U. S. 1062 (1984). As we later described our reasoning: “[W]e did not consider the crime generally described as felony murder as a separate offense distinct from its various elements. Rather, we treated a killing in the course of a robbery as itself a separate statutory offense, and the robbery as a species of lesser-included offense.” Vitale, 447 U. S., at 420. These cases" }, { "docid": "15147966", "title": "", "text": "defendant guilty of felony murder or of a lesser included offense of killing another with malice aforethought. The jury verdict found defendant guilty of the lesser included offense. The Supreme Court held that the jury had implicitly acquitted the defendant of the greater offense, felony murder, and that double jeopardy barred any reprosecution for felony murder on remand after the appellate court had reversed the conviction of the lesser offense for trial error. When Delap was acquitted of felony murder at the first trial, that acquittal did not bar his second conviction for premeditated murder. However, the finding that there was insufficient evidence of felony murder constituted an acquittal of felony murder, barred any appeal of that acquittal, and barred any further prosecution for that felony murder. Smalis v. Pennsylvania, 476 U.S. 140, 142, 106 S.Ct. 1745, 1747, 90 L.Ed.2d 116 (1986) (judgment that evidence is legally insufficient to sustain a guilty verdict constituted an acquittal for double jeopardy purposes); Burks v. United States, 437 U.S. 1, 15-17, 98 S.Ct. 2141, 2149-50, 57 L.Ed.2d 1 (1978). The state certainly was aware of this when it voluntarily withdrew its proposed felony murder instruction at Delap’s second trial. Delap’s successful appeal of his first conviction “wiped the slate clean” as to the premeditated murder theory, but did nothing to disturb his acquittal of felony murder. Having concluded that Delap was acquitted of felony murder and could not have been reprosecuted therefor, we now turn to the effect of this conclusion on the capital sentencing phase of Delap’s second trial. C. Collateral Estoppel Effect of Prior Acquittal at Second Sentencing. The issue which we now address is whether Delap’s acquittal of felony murder at the guilt phase of his first trial serves, through collateral estoppel principles, to bar a finding that the murder occurred during the commission of a felony so as to constitute an aggravating factor justifying imposition of the death penalty. In Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), the Supreme Court held that the Double Jeopardy Clause of the fifth amendment encompasses the doctrine" }, { "docid": "6803119", "title": "", "text": "In Harris, we held, without dissent, that a defendant’s conviction for felony murder based on a killing in the course of an armed robbery barred a subsequent prosecution against the same defendant for the robbery. The Oklahoma felony-murder statute on its face did not require proof of a robbery to establish felony murder; other felonies could underlie a felony-murder prosecution. But for the purposes of the Double Jeopardy Clause, we did not consider the crime generally described as felony murder as a separate offense distinct from its various elements. Rather, we treated a killing in the course of a robbery as itself a separate statutory offense, and the robbery as a species of lesser-included offense. The State conceded that the robbery for which petitioner had been indict ed was in fact the underlying felony, all elements of which had been proved in the murder prosecution. We held the subsequent robbery prosecution barred under the Double Jeopardy Clause, since under In re Nielsen, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118 (1889), a person who has been convicted of a crime having several elements included in it may not subse-questly be tried for a lesser-included offense — an offense consisting solely of one or more of the elements of the crime for which he has already been convicted. Vitale, 100 S.Ct. at 2267 (footnotes omitted). Similarly, the Court held in Whalen v. United States, 445 U.S. 684, 694-95, 100 S.Ct. 1432, 1439, 63 L.Ed.2d 715 (1980), that two statutes, one prohibiting rape and the other prohibiting killing in the course of committing a felony, did not authorize consecutive sentences when both statutes were violated in a single criminal episode. The Court reasoned that although under the language of the statute felony murder could be committed during the course of a felony other than rape, in this case a conviction for felony murder could not be had without proving all of the elements of the offense of rape. Therefore, felony murder and rape were the same offense under the Blockburger test. The instant case involves the precise situation that Vitale, Harris," } ]

[ { "docid": "13623857", "title": "", "text": "not committed a mistake of law, we affirm the district court’s injunction because of the high probability of success on the merits, the likely threat of irreparable harm and the public interest in favor of enforcement of arbitration only where the parties have so agreed. IV. In conclusion, we affirm the district court’s denial of the motion to compel arbitration and the injunction against arbitration. Because we do not have jurisdiction over the district court’s refusal to transfer venue, we express no opinion on the merits of that issue. . The Court held that \"orders granting or denying stays of 'legal’ proceedings on 'equitable’ grounds are not automatically appealable under § 1292(a)(1).\" Gulfstream, 108 S.Ct. at 1142. . Our holding is strictly limited to the denial of a motion to compel arbitration. We have no occasion to offer an opinion on whether we have jurisdiction to entertain an appeal of a grant of a motion to compel arbitration. We note, however, in Abernathy v. Southern California Edison, 885 F.2d 525 (9th Cir.1989), the Ninth Circuit held that an order granting a stay pending arbitration is not ordinarily an injunction within the meaning of § 1292(a)(1), and is not ordinarily appealable under that section. Id. at 528. The court concluded that an order compelling arbitration is not ordinarily appeal-able under § 1292(a)(1). Id.; see also Zosky v. Boyer, 856 F.2d 554, 560-61 (3d Cir.1988), cert. denied, - U.S. -, 109 S.Ct. 868, 102 L.Ed.2d 992 (1989); VDA, De Fuertes v. Drexel, Burn-ham, Lambert, Inc., 855 F.2d 10, 11 (1st Cir.1988) (per curiam). . When a release clause is ambiguous, it becomes necessary to examine the circumstances surrounding its execution. Cf. Erie Telecommunications v. City of Erie, Pennsylvania, 853 F.2d 1084, 1100 (3d Cir.1988) (release clause which was clear and unambiguous \"refutes any argument that the circumstances surrounding its execution should restrict its scope in any way”)." } ]

[ { "docid": "23583444", "title": "", "text": "a writ or by appeal, with the court determining which, if any, procedure is more appropriate. See Union Carbide Corp. v. United States Cutting Serv., Inc., 782 F.2d 710, 712-13 (7th Cir.1986) (proceedings seeking review by way of appeal or petition for mandamus treated as petition for mandamus on court’s determination that it was the more appropriate procedure); 16 Charles A. Wright, Arthur R. Miller, Edward H. Cooper & Eugene Gressman, Federal Practice and Procedure § 3932 (1977) [hereinafter Federal Practice and Procedure] (parties may proceed alternatively on application for a writ or by appeal, with the court determining which is the appropriate remedy). Therefore, we must first determine whether an appeal is available to the government at this time and if not, whether a writ of prohibition may issue on these facts. A. Orders Appealable Under 28 U.S.C. § 1292(a)(1) Section 1292(a)(1) provides that a court of appeals may exercise jurisdiction over orders granting or denying injunctions or orders that have the practical effect of granting or denying injunctions and have serious consequences. Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 108 S.Ct. 1133, 1142, 99 L.Ed.2d 296 (1988); Carson v. American Brands, Inc., 450 U.S. 79, 84, 101 S.Ct. 993, 996, 67 L.Ed.2d 59 (1981); Presinzano v. Hoffman-La Roche, Inc., 726 F.2d 105, 109 (3d Cir.1984). Even those district court orders lacking the precise label “injunction” may be appealable under section 1292(a)(1) if their effect is injunctive. See Bailey v. Systems Innovation, Inc., 852 F.2d 93, 96 (3d Cir.1988) (court of appeals not constrained by district court’s characterization of its order). While many orders are addressed to a party and direct the party to take or not take some action, not all such orders quali fy as injunctions for purposes of section 1292(a)(1). Drawing the distinction is often difficult. See 16 Federal Practice and Procedure § 3922 (“An affirmative definition is harder to achieve than a list of exclusions.”). If merely ordering action or inaction were sufficient to constitute an “injunction” within the meaning of section 1292(a)(1), every discovery order, for instance, would qualify for immediate interlocutory" }, { "docid": "19758011", "title": "", "text": "a pri- or injunction or order. In resolving their appellate jurisdiction, the circuit courts have looked behind the terminology used by the parties and the district court to prevent litigants from “circumvent[ing] by the filing of repetitive motions the time limitation for taking appeals.” Buckhanon v. Percy, 708 F.2d 1209, 1212 (7th Cir. 1983); see also Birmingham Fire Fighters Ass’n, 280 F.3d at 1293 (noting that Congress did not intend § 1292(a)(1) to open the floodgates to litigation of injunctions). Although none of these cases dealt with a district court expressly “granting” a new injunction, the courts’ reasoning is no less applicable to such a situation. In short, in deciding whether a district court order “granting” an injunction is appealable under § 1292(a)(1), we consider the substance rather than the form of the motion and caption of the order. See Sierra Club v. Marsh, 907 F.2d 210, 213 (1st Cir.1990) (the court looks “not to the form of the district court’s order but to its actual effect”). In so holding, we join the Seventh Circuit’s well-reasoned approach in Gautreaux v. Chicago Housing Authority, 178 F.3d 951 (7th Cir.1999). In that case, a party sought to compel compliance with an existing injunction, and in response, the district court “enjoined” the respondent from taking certain action. Id. at 954. The Seventh Circuit held that when a district court’s order, explicitly labeled an “injunction,” does “nothing more than reassert the court’s prior orders,” it is not a “fresh injunction.” Id. at 958. Relying on its own precedent, the court held that unless a district court order addressing an existing injunction “substantially and obviously alters the parties’ preexisting legal relationship,” as set forth in the existing injunction, the order is an unappealable interpretation or clarification of the prior order. Id. Because the District Court’s order here was based solely on its interpretation of the 1989 permanent injunction, the proper question is whether the court’s order actually modified the existing injunction or instead, as in Gautreaux, merely clarified or interpreted the prior injunction. Appellate courts do not have jurisdiction to review a district court order" }, { "docid": "3832259", "title": "", "text": "civil contempt is [an injunction for the purposes of § 1292(a)(1)]”). . Thus, the Supreme Court has refused to allow parties to characterize the denial of a \"motion for a summary judgment granting a permanent injunction” as an interlocutory \"refusal” of a request for injunction, appeal-able under § 1292(a)(1), because \"the denial of a motion for a summary judgment because of unresolved issues of fact does not settle or even tentatively decide anything about the merits of the claim.” Switz. Cheese, 385 U.S. at 25, 87 S.Ct. 193. Likewise for the denial of class certification under § 1292(a)(1), where that order did not have \"irreparable effect;” \"could be reviewed both prior to and after final judgment;” \"did not affect the merits of petitioner's own claim;” and \"did not pass on the legal sufficiency of any claims for injunctive relief.” Gardner, 437 U.S. at 481-82, 98 S.Ct. 2451. . As noted in Koons: We think it better ... to continue to read § 1292(a)(1) as relating to injunctions which give or aid in giving some or all of the substantive relief sought by a complaint ... and not as including restraints or directions in orders concerning the conduct of the parties or their counsel, unrelated to the substantive issues in the action, while awaiting trial .... [S]uch a construction provides a better fit with the language of the statute ... and with the policy considerations which led Congress to create this exception to the federal final judgment rule. 325 F.2d at 406-07 (emphasis added) (internal quotations omitted). .We note that in addition, \"an order that prohibits a party from pursuing litigation in another forum unquestionably is an injunction for purposes of § 1292(a)(1).” AmSouth Bank v. Dale, 386 F.3d 763, 773 (6th Cir.2004) (quoting 16 Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 3923) (surveying cases from seven Circuit Courts of Appeal, finding \"weight of authority” in agreement, and rejecting Third Circuit decision to the contrary). . Nor was the PAC Notification the only \"final agency action” identified by Alabama in support of federal question jurisdiction under 28" }, { "docid": "9368882", "title": "", "text": "whether its decision was final). “Ap-pealability turns on what has been ordered, not on how it has been described.” Id. II. 28 U.S.C. § 1292(a)(1) Section 1292(a)(1), a “narrowly tailored exception” to § 1291’s final judgment rule, Huminski v. Rutland City Police Dep’t, 221 F.3d 357, 359 (2d Cir.2000) (per curiam), allows the appeal of interlocutory orders “granting, continuing, modifying, refusing or dissolving injunctions .... ” § 1292(a)(1). Plaintiffs contend that we have jurisdiction because the district court granted them injunctive relief. To qualify as an “injunction” under § 1292(a)(1), a district court order must grant at least part of the ultimate, coercive relief sought by the moving party. See HBE Leasing Corp. v. Frank, 48 F.3d 623, 632 & n. 5 (2d Cir.1995) (requiring that the order be “directed to a party, enforceable by contempt, and designed to accord or protect some or all of the substantive relief sought by a complaint,” and reserving the issue of whether the appellant must also' demonstrate “serious consequences” to its interests); Nosik v. Singe, 40 F.3d 592, 596 (2d Cir.1994) (“[A]n order that ‘does not grant part or all of the ultimate relief sought’ in an action cannot be appealed under § 1292(a)(1)”) (quoting Ronson Corp. v. Liquifin Aktiengesellschaft, 508 F.2d 399, 401 (2d Cir.1974)); Etuk v. Slattery, 936 F.2d 1433, 1439-40 (2d Cir.1991) (relief must be coercive, not declaratory, to be appealable under § 1292(a)(1)). No order entered by Judge Johnson meets this threshold test. At oral argument, plaintiffs argued that defendants had been ordered to “meet their obligations” under the ADA and the Rehabilitation Act; but plaintiffs could not direct our attention to such language and we do not see it. In any event, an “obey the law” order entered in a case arising under statutes so general as the ADA and the Rehabilitation Act would not pass muster under Rule 65(d) of the Federal Rules of Civil Procedure, which requires that injunctions be “specific in terms” and “describe in reasonable detail ... the act or acts sought to be restrained.” Id,.; see S.C. Johnson & Son, Inc. v. Clorox" }, { "docid": "3832258", "title": "", "text": "had been only conditionally approved. Se. Fed. Power Customers, Inc. v. Harvey, 400 F.3d 1 (D.C.Cir.2005). . In the context of Rule 65 of the Federal Rules of Civil Procedure, the Court has similarly defined an injunction as simply \"an equitable decree compelling obedience under the threat of contempt.” Int’l Longshoremen’s Assn, Local 1291 v. Phila. Marine Trade Ass'n, 389 U.S. 64, 75, 88 S.Ct. 201, 19 L.Ed.2d 236 (1967); see also 1 Howard C. Joyce, A Treatise on the Law Relating to Injunctions § 1, at 2-3 (1909) (\"In a general sense, every order of a court which commands or forbids is an injunction; but in its accepted legal sense, an injunction is a judicial process or mandate operating in person-am by which, upon certain established principles of equity, a party is required to do or refrain from doing a particular thing.”) . See Cohen v. Bd. of Tr. of Univ. of Med. and Dentistry of N.J., 867 F.2d 1455, 1464 (3d Cir.1989) (“Not every order which may be enforced against a party by civil contempt is [an injunction for the purposes of § 1292(a)(1)]”). . Thus, the Supreme Court has refused to allow parties to characterize the denial of a \"motion for a summary judgment granting a permanent injunction” as an interlocutory \"refusal” of a request for injunction, appeal-able under § 1292(a)(1), because \"the denial of a motion for a summary judgment because of unresolved issues of fact does not settle or even tentatively decide anything about the merits of the claim.” Switz. Cheese, 385 U.S. at 25, 87 S.Ct. 193. Likewise for the denial of class certification under § 1292(a)(1), where that order did not have \"irreparable effect;” \"could be reviewed both prior to and after final judgment;” \"did not affect the merits of petitioner's own claim;” and \"did not pass on the legal sufficiency of any claims for injunctive relief.” Gardner, 437 U.S. at 481-82, 98 S.Ct. 2451. . As noted in Koons: We think it better ... to continue to read § 1292(a)(1) as relating to injunctions which give or aid in giving some or" }, { "docid": "18950422", "title": "", "text": "the conventional final judgment. Id.; see also United States v. Accra Pac, Inc., 173 F.3d 630, 632 (7th Cir. 1999) (“One of many orders interpreting or implementing a consent decree cannot readily be called ‘final’, and we have held accordingly that housekeeping orders in long-running cases are not appealable.”). Nor does it help to speak of “pragmatic finality,” which is too vague to serve as an analogy to the conventional Rule 58 final judgment. Bogará, 159 F.3d at 1063. Instead, Bogará holds, parties who need to bring a post-judgment order with irrevocable consequences before the appellate court — at least in cases involving decrees entered by consent or after full litigation — must normally either use mandamus or seek an order granting, modifying, denying, or otherwise affecting the injunction itself, which would be ap-pealable under 28 U.S.C. § 1292(a)(1). Id. Any direction the February order gave the CHA about how to comply with the 1969 injunction did not serve to bring finality to this litigation. Under ACORN and Bogará, therefore, § 1291 does not confer jurisdiction over this appeal. 2. Section 1292(a)(1) Jurisdiction The CHA has not requested a writ of mandamus, nor did the district court certify this ease for an immediate appeal under 28 U.S.C. § 1292(b). The only possible alternative ground for jurisdiction is thus 28 U.S.C. § 1292(a)(1), which permits appeals from orders “granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions.... ” The next question is whether the February order does any of those things to an injunction, or if, on the other hand, it is a mere clarification or reiteration of a standing injunction that does not fall within the scope of § 1292(a)(1). See ACORN, 75 F.3d at 306. The CHA concedes that the only thing it asked the district court to do was to clarify the injunction, and it acknowledges that this is what the district court said it was doing. It argues, however, that the court’s purported clarification resulted in such a blatant misinterpretation of the injunction that it is tantamount to an appealable modification. This" }, { "docid": "2013590", "title": "", "text": "U.S. at 24, 87 S.Ct. 193) (internal quotations marks omitted); see, e.g., id. (order preventing law firm from transferring work product to plaintiffs substitute counsel directed to counsel rather than a party was not ap-pealable under section 1292(a)(1)); Nosik v. Singe, 40 F.3d 592, 596 (2nd Cir.1994) (protective order that did not grant or deny any of the ultimate relief sought in complaint was not an injunction appealable under section 1292(a)(1)); Metex Corp. v. ACS Indus., Inc., 748 F.2d 150, 156 (3d Cir.1984) (discovery request styled as an injunction was not appealable under section 1292(a)(1)). Appellate courts’ determining jurisdiction under section 1292(a)(1) based on the substance of the order rather than strictly on the district court’s characterization has extended the reach of the provision in one respect: district court orders that “have the substantial and practical effect of in-junctive orders” but which do not “technically take the form of an order relating to an injunction” have been held appealable. 19 Moore et ah, Moore’s Federal Practice, supra, § 203.10[l][b]. For example, an order denying summary judgment on a claim seeking injunctive relief is immediately ap-pealable even though the district court has not specifically denied injunctive relief. See Justin Indus. v. Choctaw Sec., L.P., 920 F.2d 262, 265-66 (5th Cir.1990); see also United States v. Microsoft Corp., 56 F.3d 1448, 1456-57 (D.C.Cir.1995) (order refusing to enter consent decree calling for injunctive relief had practical effect of denying an injunction and was thus appeal-able under section 1292(a)(1)); United States v. All Assets of Statewide Auto Parts, Inc., 971 F.2d 896, 901 (2d Cir.1992) (order refusing to vacate ex parte seizure warrant had practical effect of enjoining business from operating and was thus immediately appealable under section 1292(a)(1)); Manchester Knitted Fashions, Inc. v. Amalgamated Cotton Garment and Allied Indus. Fund, 967 F.2d 688, 690 (1st Cir.1992) (partial summary judgment in favor of plaintiff on claim seeking injunc-tive relief had practical effect of granting injunction and was thus immediately ap-pealable under section 1292(a)(1)). The Supreme Court has significantly curtailed the appealability of interlocutory orders that do not explicitly grant or deny injunctive relief, but" }, { "docid": "3376657", "title": "", "text": "the preparation of a 95,-000-page affidavit.” Appellant’s Brief at 12. The FBI misperceives the scope of section 1292(a)(1). As one of the cases on which it relies defined the term, an injunction under section 1292(a)(1) encompasses “any order ‘directed to a party, enforceable by contempt, and designed to accord or protect some or all of the substantive relief sought by a complaint in more than preliminary fashion.’ ” IAM Nat’l Pension Fund Benefit Plan A v. Cooper Industries, Inc., 789 F.2d 21, 24 (D.C.Cir.) (citation omitted) (emphasis added), cert. denied, — U.S. —, 107 S.Ct. 473, 93 L.Ed. 2d 417 (1986). As we have explained, a Vaughn index does not accord a requester any of the substantive relief s/he seeks, nor does it protect the substance of the matter, in the usual injunctive sense of preserving the status quo. Rather, the index is a tool for determining the requester’s substantive rights. If the fact that the court has directed a party to take some action, here to produce the index, is enough to constitute the order as an injunction, then every discovery order would qualify for immediate interlocutory appeal under section 1292(a)(1). However, the general non-appealability of discovery orders is well-established. See, e.g., Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1116 (3d Cir.1986); Borden Co. v. Sylk, 410 F.2d 843, 845 (3d Cir.1969); cf. Metex Corp. v. ACS Industries, Inc., 748 F.2d 150, 155-56 (3d Cir.1984) (discovery order not made appealable merely because it is framed as an injunction). Indeed, the limited scope of section 1292(a)(1) is reflected in this court’s recent opinion holding that an order enforcing a settlement agreement which did not totally end the case as to all parties is not immediately appealable as an interlocutory injunctive order, notwithstanding that the order directed specific performance. See Saber v. Financeamerica Credit Corp., 843 F.2d 697 (3d Cir.1988). The FBI argues that this case is like Coastal States where we held we had appellate jurisdiction under section 1292(a)(1) over the district court’s order directing actual release of the requested documents after it found the government’s Vaughn index was" }, { "docid": "6844341", "title": "", "text": "We instead must assure ourselves that it would be consonant with the policies underlying section 1292(a)(1) to allow an immediate appeal, even though the order at issue purports to be an interlocutory injunction. The most comprehensive and authoritative exposition of these policies is found in Cohen v. Board of Trustees of the University of Medicine & Dentistry of New Jersey, 867 F.2d 1455 (3d Cir.1989) (in banc), wherein we endeavored to define which orders involve “injunctions” under section 1292(a)(1). In Cohen, a medical school professor, relying on 42 U.S.C. § 1983 and on state law, sued the university and certain members of its administration, claiming that they had violated her constitutional and common-law rights by denying her tenure. 867 F.2d at 1456. At issue on appeal was an interlocutory order of the district court requiring the university to reinstate the plaintiff to her position and to “retain her until such time as she is removed for cause in the same manner that tenured faculty members are removable.” Id. at 1468. In attempting to define injunction, for purposes of determining whether the order was an injunction appealable under section 1292(a)(1), we began with a negative definition: “Not every order which may be enforced against a party by civil contempt is such an injunction.” Id. at 1464. To underscore this point, we listed several types of orders that have been held not to fall under section 1292(a)(1), notwithstanding that they have the effect of granting or denying injunctive relief. We stated: These exceptions to the reach of section 1292(a)(1) serve, negatively, to define injunctions for purposes of that section. What they have in common is that in each case the order in question, while significant, does not either grant or deny the ultimate relief sought by the claimant. Id. (emphasis added). Reasoning from these examples, we concluded that “injunctions” may be defined affirmatively as: Orders that are directed to a party, enforceable by contempt, and designed to accord or protect “some or all of the substantive relief sought by a claimant” in more than a [temporary] fashion. Id. at 1465 n. 9" }, { "docid": "3376656", "title": "", "text": "28 U.S.C. § 1291 (1982). Although the district court certified a second appeal under 28 U.S.C. § 1292(b), a panel of this court denied permission to appeal. Despite its failure to obtain the certified interlocutory appeal, the FBI maintains that we have jurisdiction under 28 U.S.C. § 1292(a)(1), the Cohen collateral order doctrine, or the All Writs Act. We conclude that none of these routes supports this court’s jurisdiction. A. 28 U.S.C. § 1292(a)(1) The FBI argues that the district court’s order has the practical effect of an injunction, and that it is immediately appealable because it might have serious, even irreparable consequences which may only be effectively challenged on an immediate appeal. See Carson v. American Brands, Inc., 450 U.S. 79, 83-84, 101 S.Ct. 993, 996-97, 67 L.Ed.2d 59 (1981); Presinzano v. Hoffman-LaRoche, Inc., 726 F.2d 105, 109 (3d Cir.1984). The consequences it points to are contained in affidavits, filed in this court, to the effect that compliance with the order “will entail over 30,500 man-hours (over 14 man-years), cost over $578,-000, and require the preparation of a 95,-000-page affidavit.” Appellant’s Brief at 12. The FBI misperceives the scope of section 1292(a)(1). As one of the cases on which it relies defined the term, an injunction under section 1292(a)(1) encompasses “any order ‘directed to a party, enforceable by contempt, and designed to accord or protect some or all of the substantive relief sought by a complaint in more than preliminary fashion.’ ” IAM Nat’l Pension Fund Benefit Plan A v. Cooper Industries, Inc., 789 F.2d 21, 24 (D.C.Cir.) (citation omitted) (emphasis added), cert. denied, — U.S. —, 107 S.Ct. 473, 93 L.Ed. 2d 417 (1986). As we have explained, a Vaughn index does not accord a requester any of the substantive relief s/he seeks, nor does it protect the substance of the matter, in the usual injunctive sense of preserving the status quo. Rather, the index is a tool for determining the requester’s substantive rights. If the fact that the court has directed a party to take some action, here to produce the index, is enough to constitute the" }, { "docid": "9368881", "title": "", "text": "1291. See Fiataruolo v. United States, 8 F.3d 930, 937 (2d Cir.1993) (“Finality is determined on the basis of pragmatic, not needlessly rigid pro for-ma, analysis.”). The intent of the district court judge is relevant for purposes of § 1291 when the court’s rulings reveal that the action could be final and it therefore matters whether the trial judge contemplated further proceedings. See Ellender v. Schweiker, 781 F.2d 314, 317 (2d Cir.1986) (concluding that a decision was “final” after analyzing the rulings in the case as well as the intent of the district court judge). But a district court’s assertion of finality cannot deliver appellate jurisdiction to review a decision that is not otherwise “final” for purposes of § 1291. Similarly, in this case nothing turns on the district court’s broad pronouncement that “Judgment is entered in favor of the plaintiffs] and against the defendants.” See Spates v. Manson, 619 F.2d 204, 209 n. 3 (2d Cir.1980) (Friendly, J.) (concluding that the district court’s “use of the word ‘judgment’ ” was immaterial to the question whether its decision was final). “Ap-pealability turns on what has been ordered, not on how it has been described.” Id. II. 28 U.S.C. § 1292(a)(1) Section 1292(a)(1), a “narrowly tailored exception” to § 1291’s final judgment rule, Huminski v. Rutland City Police Dep’t, 221 F.3d 357, 359 (2d Cir.2000) (per curiam), allows the appeal of interlocutory orders “granting, continuing, modifying, refusing or dissolving injunctions .... ” § 1292(a)(1). Plaintiffs contend that we have jurisdiction because the district court granted them injunctive relief. To qualify as an “injunction” under § 1292(a)(1), a district court order must grant at least part of the ultimate, coercive relief sought by the moving party. See HBE Leasing Corp. v. Frank, 48 F.3d 623, 632 & n. 5 (2d Cir.1995) (requiring that the order be “directed to a party, enforceable by contempt, and designed to accord or protect some or all of the substantive relief sought by a complaint,” and reserving the issue of whether the appellant must also' demonstrate “serious consequences” to its interests); Nosik v. Singe, 40 F.3d 592," }, { "docid": "2013589", "title": "", "text": "been limited by-two narrowing constructions. The first controls the meaning of injunctive interlocutory orders covered by the exception. “[N]ot every order in the form of an injunction is an injunction under ... § 1292(a)(1).” Chronicle Publishing Co. v. Hantzis, 902 F.2d 1028, 1030 (1st Cir.1990) (per curiam) (quoting Polyplastics, Inc. v. Transconex, Inc., 713 F.2d 875, 880 (1st Cir.1983)). Appellate jurisdiction under section 1292(a)(1) turns on the substance of the interlocutory order, although the district court’s view of the nature of the order is often useful and is considered by the appellate court. See Etuk v. Slattery, 936 F.2d 1433, 1440 (2d Cir.1991). “Generally, an order is appealable as an injunction [under section 1292(a)(1) ] only when it is directed to a party, is enforceable by contempt, and grants (or denies) part or all of the ultimate relief sought by the suit. Orders that in no way touch on the merits of the claim but only relate[ ] to pretrial procedures are not [appealable].” Chronicle Publishing Co., 902 F.2d at 1030 (quoting Switzerland Cheese, 385 U.S. at 24, 87 S.Ct. 193) (internal quotations marks omitted); see, e.g., id. (order preventing law firm from transferring work product to plaintiffs substitute counsel directed to counsel rather than a party was not ap-pealable under section 1292(a)(1)); Nosik v. Singe, 40 F.3d 592, 596 (2nd Cir.1994) (protective order that did not grant or deny any of the ultimate relief sought in complaint was not an injunction appealable under section 1292(a)(1)); Metex Corp. v. ACS Indus., Inc., 748 F.2d 150, 156 (3d Cir.1984) (discovery request styled as an injunction was not appealable under section 1292(a)(1)). Appellate courts’ determining jurisdiction under section 1292(a)(1) based on the substance of the order rather than strictly on the district court’s characterization has extended the reach of the provision in one respect: district court orders that “have the substantial and practical effect of in-junctive orders” but which do not “technically take the form of an order relating to an injunction” have been held appealable. 19 Moore et ah, Moore’s Federal Practice, supra, § 203.10[l][b]. For example, an order denying summary" }, { "docid": "3376658", "title": "", "text": "order as an injunction, then every discovery order would qualify for immediate interlocutory appeal under section 1292(a)(1). However, the general non-appealability of discovery orders is well-established. See, e.g., Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1116 (3d Cir.1986); Borden Co. v. Sylk, 410 F.2d 843, 845 (3d Cir.1969); cf. Metex Corp. v. ACS Industries, Inc., 748 F.2d 150, 155-56 (3d Cir.1984) (discovery order not made appealable merely because it is framed as an injunction). Indeed, the limited scope of section 1292(a)(1) is reflected in this court’s recent opinion holding that an order enforcing a settlement agreement which did not totally end the case as to all parties is not immediately appealable as an interlocutory injunctive order, notwithstanding that the order directed specific performance. See Saber v. Financeamerica Credit Corp., 843 F.2d 697 (3d Cir.1988). The FBI argues that this case is like Coastal States where we held we had appellate jurisdiction under section 1292(a)(1) over the district court’s order directing actual release of the requested documents after it found the government’s Vaughn index was fatally deficient. However, in Coastal States we noted that the order of the district court “achieved the plaintiff’s very objective — to compel production of documents.” 644 F.2d at 973-74. We based our jurisdiction on the conclusion that “[b]ecause the order to produce in and of itself grants full relief to the FOIA requester, this is a quintessential case of an interlocutory order with ‘serious, perhaps irreparable consequence,’ and which can be ‘effectually challenged’ only by immediate appeal.” Id. at 974 (quoting Carson, 450 U.S. at 84, 101 S.Ct. at 97). In this case, the order directing production of the Vaughn index does not give Hinton any of the substantive relief he seeks; it thus is not an injunction within the meaning of section 1292(a)(1). B. 28 U.S.C. § 1291 The FBI next suggests that the district court’s order falls within that narrow class of collateral orders appealable under the doctrine of Cohen v. Beneficial Indus trial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Such orders are appealable only if" }, { "docid": "23022289", "title": "", "text": "only “incidental” to his employment discrimination claim. Anderson supports his argument with the district court’s prediction that its order is not appeal-able because its relief is “incidental and unrelated to the underlying merits of the employment discrimination complaint.” Anderson, No.1996-118, at 44. See also Anderson, 947 F.Supp. at 900. The district court, however, does not have the last word on this matter. Cf. Bailey v. Systems Innovation, Inc., 852 F.2d 93, 96 (3d Cir.1988) (district court’s characterization of order not dispositive). To be appealable under Section 1292, an order need not grant all of the relief requested in a complaint. Rather, an order is treated as “injunctive” within the meaning of Section 1292(a)(1) when it adjudicates even some of the relief sought in the complaint. “If the order grants fart of the relief requested by the claimant, the label put on an order by the district court does not prevent the appellate tribunal from treating it as an injunction for purposes of section 1292(a)(1).” Cohen, 867 F.2d at 1466 (emphasis provided). Thus, the district court’s view of its own order is irrelevant. In addition, the relief granted by the district court need not encompass the entire (or even the most “important” part of) the complaint. So long as the order touches the merits of part of the complaint, it will fall within Section 1292’s grasp, assuming it is also directed at a party and can be enforced by contempt of court. See United States v. Santtini, 963 F.2d 585, 591 (3d Cir.1992). See also 16 Charles Alan Wright, et. al., Federal Practice and Procedure § 3922. After comparing Anderson’s First Amended Complaint with the subject matter of the district court’s order, we conclude that the district court’s injunction is appealable under Section 1292. Paragraphs 19-25 of Anderson’s First Amended Complaint explicitly describe the Virgin Islands Police Department’s surveillance of Anderson and his attorney. Count VIII and Count XII of the First Amended Complaint incorporate these allegations and demand damages for and injunctive relief from such conduct. Finally, Anderson’s own appellate brief states that “the criminal and intentional Constitutional violations committed" }, { "docid": "1865971", "title": "", "text": "not apply to an order clearly granting or denying a specific request for injunctive relief; such orders are always appealable under § 1292(a)(1).” (quoting I.A.M., 789 F.2d at 24 n. 3)); see also Robert Bosch LLC v. Pylon Mfg. Corp., 659 F.3d 1142, 1147 (Fed.Cir.2011); CFTC v. Walsh, 618 F.3d 218, 224 (2d Cir.2010); Edwards v. Prime, Inc., 602 F.3d 1276, 1290 (11th Cir.2010); Westar Energy, Inc. v. Lake, 552 F.3d 1215, 1223 (10th Cir.2009). . Cf. Western Elec., 777 F.2d at 28-29 & n. 12 (applying Carson requirements where, although the court found that a consent decree was an injunction, it was not clear whether the appealed-from order constituted a \"modification” of that decree). . The argument that the Settlement Order is an injunction for purposes of § 1292(a)(1) is quite strong, given this court’s broad definition of an injunction as any order \" 'directed to a party, enforceable by contempt, and designed to accord or protect some or all of the substantive relief sought by a complaint in more than preliminary fashion,' ” E-Gold, 521 F.3d at 415 (quoting I.A.M., 789 F.2d at 24), as well as our decisions regarding similar orders, see Twelve John Does v. District of Columbia, 117 F.3d 571, 574 (D.C.Cir.1997) (holding that a consent decree is an injunction); Western Elec., 777 F.2d at 28 n. 12 (same). The principal cause for hesitation is Carson itself, which held that the \"order declining to enter the proposed consent decree” in that case \"did not in terms refus[e]' an 'injunctiofn],’ ” but rather \"had the practical effect of doing so.” 450 U.S. at 83, 101 S.Ct. 993. It may be, however, that Carson was focusing on the \"refusing,” rather than the \"injunction,” issue. . We do not mean to suggest that whenever there is something more that the district court \"may yet do,” a party cannot appeal under § 1292(a)(1). Indeed, because § 1292(a)(1) authorizes appeals from \"interlocutory” orders, there will always be something yet to do in the district court. We merely hold that, when a district court rejects only one of multiple grounds for" }, { "docid": "23583445", "title": "", "text": "Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 108 S.Ct. 1133, 1142, 99 L.Ed.2d 296 (1988); Carson v. American Brands, Inc., 450 U.S. 79, 84, 101 S.Ct. 993, 996, 67 L.Ed.2d 59 (1981); Presinzano v. Hoffman-La Roche, Inc., 726 F.2d 105, 109 (3d Cir.1984). Even those district court orders lacking the precise label “injunction” may be appealable under section 1292(a)(1) if their effect is injunctive. See Bailey v. Systems Innovation, Inc., 852 F.2d 93, 96 (3d Cir.1988) (court of appeals not constrained by district court’s characterization of its order). While many orders are addressed to a party and direct the party to take or not take some action, not all such orders quali fy as injunctions for purposes of section 1292(a)(1). Drawing the distinction is often difficult. See 16 Federal Practice and Procedure § 3922 (“An affirmative definition is harder to achieve than a list of exclusions.”). If merely ordering action or inaction were sufficient to constitute an “injunction” within the meaning of section 1292(a)(1), every discovery order, for instance, would qualify for immediate interlocutory appeal under the statute. Hinton v. Department of Justice, 844 F.2d 126, 180 (3d Cir.1988). To actually fall within the scope of section 1292(a)(1) and be deemed an “injunction,” the order must be “ ‘directed to a party, enforceable by contempt, and designed to accord or protect some or all of the substantive relief sought by a complaint in more than preliminary fashion.’ ” Id. (quoting IAM Nat’l Pension Fund Benefit Plan A v. Cooper Indus., Inc., 789 F.2d 21, 24 (D.C.Cir.), cert. denied, 479 U.S. 971, 107 S.Ct. 473, 93 L.Ed.2d 417 (1986)). Substantial uncertainty exists as to “the scope of the mandatory orders that qualify as ‘injunctions,’ [but] ... it can be assumed that injunctions are orders that grant or protect at least part of the permanent relief sought as an ultimate result of the action.” 16 Federal Practice and Procedure § 3921 (emphasis added). The order by the district court in this case, although it forbids certain government action and thus appears to be “injunctive,” is not an “injunction” within the meaning" }, { "docid": "23226924", "title": "", "text": "from seeking abortions while the law was in place. Id. The court reasoned that judicial economy would be served by hearing the inevitable further constitutional challenge to the Pennsylvania Act in this lawsuit rather than in a separate subsequent action. Id. Therefore, the court continued the injunction and set a date for a new trial. The Commonwealth appeals this decision under the interlocutory appeal provision, 28 U.S.C. § 1292(a)(1) (1993) and, in the alternative, seeks a writ of mandamus on the ground that the district court violated our mandate in reopening the record. II. The clinics contend we lack appellate jurisdiction, arguing that the district court’s continuation of the injunction and its decision to reopen the record are not subject to interlocutory appeal. Title 28 U.S.C. § 1292(a)(1) authorizes appellate jurisdiction over “[interlocutory orders of the district courts ... granting, continuing, modifying, refusing or dissolving injunctions,- or refusing to dissolve or modify injunctions, ...” We have defined an “injunction” for purposes of § 1292(a)(1) as an order “directed to a party, enforceable by contempt, and designed to accord or protect ‘some or all of the substantive relief sought by a complaint’ in more than a [temporary] fashion.” Cohen v. Board of Trustees, 867 F.2d 1456, 1465 n. 9 (3d Cir.1989) (in bane) (quoting Charles A. Wright et ah, 12 Federal Practice and Procedure § 3922 (1977)). Conversely, pretrial orders such as orders to compel discovery and denials of summary judgment are not “injunctions” because they do not “grant part of the relief requested by the claimant.” Hershey Foods Corp. v. Hershey Creamery Co., 945 F.2d 1272, 1277 (3d Cir.1991). The clinics contend we lack jurisdiction over the district court’s order under Carson v. American Brands, Inc., 450 U.S. 79, 101 S.Ct. 993, 67 L.Ed.2d 59 (1981). There, the Supreme Court held that an interlocutory order having “the practical effect of refusing an injunction” is appealable only upon a showing that the order “might have a ‘serious, perhaps irreparable, consequence,’ and that the order can be ‘effectually challenged’ only by immediate appeal.” Id. at 84, 101 5.Ct. at 996 (citation omitted" }, { "docid": "16259723", "title": "", "text": "of a determination as to less than all parties in the action, whether plaintiffs or defendants. School District of Kansas City v. Missouri, 592 F.2d 493 (8th Cir. 1979); Melancon v. Insurance Company of North America, 476 F.2d 594 (5th Cir. 1973); Schaefer v. First National Bank, 465 F.2d 234 (7th Cir. 1972); Levin v. Wear-Ever Aluminum, Inc., 427 F.2d 847 (3d Cir. 1970); Sullivan v. Delaware River Port Authority, 407 F.2d 58 (3d Cir. 1969). Indeed, in the cases cited the argument for appealability was stronger than in this case because the district court’s determination as to the party involved in the appeal was based on reasons distinguishing that party from his or her co-parties. Here, in contrast, the district court ruling was equally applicable to all plaintiffs. In any event, it is undisputed that the district court made no Rule 54(b) determination and direction in this case. Therefore, we reject appellant’s claim that we have jurisdiction over his appeal under 28 U.S.C. § 1291. IV. Appellant vigorously presses his alternate argument that we have jurisdiction over his appeal under 28 U.S.C. § 1292(a)(1) because the order appealed from denied injunctive relief. He points to the language of paragraph (4) of the Court’s order, which provides, “Defendants’ motion to dismiss plaintiffs’ prayer for injunctive and declaratory relief is GRANTED. Such dismissal is with prejudice”, and argues that this represents a refusal of his claim for injunctive relief. Section 1292(a)(1) provides, in part: (a) The courts of appeals shall have jurisdiction of appeals from: (1) Interlocutory orders of the district courts of the United States . . . granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions 28 U.S.C. § 1292(a)(1) (emphasis added). Although appellant construes this provision as automatically bestowing appellate jurisdiction when any order nominally grants or denies injunctive relief, the statute conditions our jurisdiction on (1) the entry of an “interlocutory” order, and (2) a district court decision on injunctive relief. The Supreme Court’s review of the purpose of and history behind § 1292(a)(1) is instructive of its scope. The statute was" }, { "docid": "11712815", "title": "", "text": "basis for our jurisdiction. In re Chateaugay Corp., 928 F.2d 63, 64 (2d Cir.1991). In the instant case, the District Court did not expressly determine that there was no just reason for delay in entering judgment. Contrary to the contention of the parties, the explanation given by the District Court for denying Clemence’s motion for a stay does not supply the missing express determination, because there is simply no evidence that the District Court intended its ruling on the stay to constitute a Rule 54(b) certification. The requirement of an express determination cannot be met if the District Court does not make clear that such determi nation is for the purpose of certifying a final judgment {e.g., by labeling its order a “Rule 54(b) Certification”). Because there was no Rule 54(b) certification, the District Court’s order remains interlocutory. However, an immediate appeal may be taken from an interlocutory order granting an injunction. See 28 U.S.C. § 1292(a)(1) (1988). An order has the practical effect of granting injunctive relief within the meaning of section 1292(a)(1) if it is “ ‘directed to a party, enforceable by contempt, and designed to accord or protect some or all of the substantive relief sought by a complaint,’ ” Abish v. Northwestern National Insurance Co., 924 F.2d 448, 453 (2d Cir.1991) (quoting Korea Shipping Corp. v. New York Shipping Ass’n, 811 F.2d 124, 126 (2d Cir.1987)), and if the appealing party demonstrates “ ‘ “serious, perhaps irreparable, consequences,” ’ ” id. (quoting Korea Shipping, 811 F.2d at 126 (quoting Carson v. American Brands, Inc., 450 U.S. 79, 84, 101 S.Ct. 993, 996, 67 L.Ed.2d 59 (1981))). The District Court’s order granted injunctive relief against Clemence insofar as it directed her to remove any liens she may have asserted on the property that is subject to her mortgages. Unlike the provisional remedies of attachment and replevin, which do not constitute injunctions for the purpose of section 1292(a)(1), see 16 Charles A. Wright et al., Federal Practice and Procedure § 3922, at 43 (1977), the District Court’s order is directed to a party, and it is presumably enforceable," }, { "docid": "12076225", "title": "", "text": "with security for the payment for her shares to which she may become entitled. The order, in our view, is a mandato ry injunction. It is therefore appealable under 28 U.S.C. § 1292(a)(1) (authorizing appeals of “interlocutory orders of district courts granting, continuing, modifying, refusing or dissolving injunctions_”). The order at issue here is directed to a party. It requires that party to take action. It is more than minimally coercive. It has serious consequences. It is enforceable through contempt. And, it is not simply related to court procedures. Its subject matter (the property) either itself consists of, or acts as a substitute for, in whole or in part, the substantive relief petitioner seeks in this case. Relevant authority suggests that these characteristics make it a mandatory injunction for purposes of appeal. See I.A.M. Nat. Pension Fund Ben. Plan v. Cooper Industries, Inc., 789 F.2d 21, 24 (D.C.Cir.), cert. denied, 479 U.S. 971, 107 S.Ct. 473, 93 L.Ed.2d 417 (1986) (an injunction, for § 1292(a)(1) purposes is “any order directed to a party, enforceable by contempt, and designed to accord or protect, some or all.of the substantive relief sought” in the action) (citations omitted) (quotations omitted); 16 Wright, Miller, Cooper & Gressman, Federal Practice and Procedure § 3922 (1990 Supp.) at 10, 26 (same); cf. International Products Corp. v. Koons, 325 F.2d 403, 406 (2d Cir.1963) (§ 1292(a)(1) relates “to injunctions which give or aid in giving some or all of the substantive relief sought”) (emphasis added); but cf. Chronicle Pub. Co. v. Hantzis, 902 F.2d 1028, 1030-31 (1st Cir.1990) (same, but omits concept of protecting or helping to secure the final relief sought, which omission seems inadvertent in context of the case). We recognize one possible argument to the contrary. For historical reasons, court ordered “attachments,” even where coercive and designed to protect ultimate relief, are typically considered to be “legal,” not “equitable,” in nature, and therefore are not “injunctions” for § 1292(a)(1) purposes. One might argue that the order before us is not an injunction, but a kind of attachment of property. We are not persuaded by this" } ]

[ { "docid": "23485934", "title": "", "text": "(citation omitted), cert. denied, 481 U.S. 1041, 107 S.Ct. 1983, 95 L.Ed.2d 822 (1987). Nor do Appellants explain how the wording of the injunction could lend itself to alternate interpretations. In the absence of any apparent contextual ambiguities or alternate readings prohibiting legal conduct, it is unlikely that Appellants will misapprehend what conduct is proscribed, or will incur liability to contempt citations for activities not contemplated by this order. B. Attorney Fees Awards of attorney fees are reviewable only to determine if the trial court abused its discretion in granting or denying them. See St. Charles Mfg. Co. v. Mercer, 737 F.2d 891, 894 (11th Cir.1983). Fla. Stat. § 495.151 provides for injunctive relief only. Under Section 35(a) of the Lanham Act, however, courts may award reasonable attorney fees to the prevailing party “in exceptional cases.” 15 U.S.C. § 1117(a). See also Montgomery, 168 F.3d at 1304. Exceptional cases are those where the infringing party acts in a “malicious, fraudulent, deliberate, or willful manner.” Burger King Corp. v. Pilgrim’s Pride Corp., 15 F.3d 166, 168 (11th Cir.1994) (quoting S.R. Rep. 93-1400 (1974), reprinted in 1974 U.S.C.C.A.N. 7132, 7133) (internal quotation marks omitted). Here, the district court awarded attorney fees without articulating a basis for doing so, let alone the factual circumstances that would warrant such an award. Furthermore, there is nothing in the record to support a finding of “malicious, fraudulent, deliberate, or willful” conduct on the part of Planetary motion. Remand is therefore unnecessary on this issue. Accordingly, we find that the award of attorney fees is an abuse of discretion and vacate the award. C. Award of Costs Under the Lanham Act, a successful party “subject to the principles of equity” may recover: “(1) defendant’s [the infringer’s] profits; (2) any damages sustained by the plaintiff, and (3) the costs of the action.” 15 U.S.C. § 1117(a). See Babbit Elecs., Inc. v. Dynascan Corp., 38 F.3d 1161, 1182 (11th Cir.1994). To recover costs under the Lanham Act, therefore, a plaintiff need not establish that the alleged infringer acted maliciously, fraudulently, deliberately, or willfully. Because it was within the district" } ]

[ { "docid": "14498044", "title": "", "text": "order deadlines. (Doc. No. 36-37.) . On December 14, 2011, the Court granted Plaintiffs’ motion for a preliminary injunction and enjoined Defendants HI Hotel Group, Zaver, S. Patel, 1450 Hospitality, Shah and I. Patel from \"utilizing, maintaining, or displaying any signs, fixtures ... or other articles which contain or display the Motel 6 proprietary marks.” (See Doc. Nos. 9-2, 21.) Defendants did not completely remove \"materials bearing the Motel 6 name or marks” until December 31, 2011. (Doc. No. 215 at Stipulation 31.) . \"To recover costs under the Lanham Act, therefore, a plaintiff need not establish that the alleged infringer acted maliciously, fraudulently, deliberately, or willfully.” Planetary Motion, Inc. v. Techsplosion, Inc., 261 F.3d 1188, 1205 (11th Cir.2001); 3-14 Gilson on Trademarks § 14.03 (2015) (\"Under the clear language of the statute, recovery of costs does not require a finding of bad faith or that the case was exceptional .... ”). . Plaintiffs also request reasonable attorney’s fees and costs on their Lanham Act claims against Defendant Zaver pursuant to the franchising agreement. (Doc. No. 224 at 23.) In light of the aforementioned provisions of the Motel 6 franchising agreement, the Court will similarly award reasonable attorney’s fees and costs for Plaintiff's Lanham Act claims against Defendant Zaver pursuant to the franchising agreement. . Plaintiffs claim that they '‘incurred a total . of $3,930.50 in costs as to their breach of contract claim against the HI Hotel defendants, $1,960.69 in costs as to their trademark infringement claims against the HI Hotel defendants, and $1,672.22 in costs as to their trademark infringement claims against the 1450 Hospitality defendants.” (Doc. No. 224 at 10.) . The decision to impose joint and .several liability or impose an award of attorney’s fees jointly and severally against certain defendants is within the district court’s discretion. See Getty Petroleum Corp. v. Bartco Petroleum Corp., 858 F.2d 103, 114 (2d Cir.1988) (addressing a district court's award of attorney’s fees under the Lanham Act); see, e.g., Mike Vaughn Custom Sports, Inc. v. Piku, No. 12-13083, 2015 WL 4603171, at *7 (E.D.Mich. July 30, 2015); Johnson & Johnson" }, { "docid": "14498030", "title": "", "text": "21; 223 at 3.) The Court similarly finds that Defendants HI Hotel Group and 1450 Hospitality were “culpable for their failure to obtain counsel, having been warned by the Court previously that an LLC’s failure to retain counsel [would] result in this Court’s default judgment.” (Doc. No. 223 at 3.) Thus, considering the totality of the circumstances, the Court concludes that this case is “exceptional” for purposes of attorney’s fees and costs under 15 U.S.C. § 1117(a). Fair Wind Sailing, Inc., 764 F.3d at 315. As to all Defendants save Zaver, the Court will award reasonable attorney’s fees and costs for Plaintiffs’ Lanham Act claims under 15 U.S.C. § 1117(a). C. Attorney’s Fees and Costs under the Franchising Agreement Having addressed whether awarding reasonable attorney’s fees and costs is proper under 15 U.S.C. § 1117(a) for Plaintiffs’ Lanham Act claims, the Court next turns to Plaintiffs’ request for reasonable attorney’s fees and costs on their breach of contact claims against Defendants HI Hotel Group, S. Patel, and Zaver pursuant to the Motel 6 franchising agreement. (Doc. No. 224 at 2.) Here, in relevant part, Section 14.7 of the Motel 6 franchising agreement entered into between Accor Franchising North America, LLC and Defendant HI Hotel Group, LLC provides: Franchisee [HI Hotel Group, LLC] shall pay upon demand to Franchisor all damages, costs and expenses, including reasonable attorneys’ fees, incurred by Franchisor in connection with Franchisee’s default and/or the early termination or expiration of this Franchise Agreement including, without limitation, those incurred to enforce and/or obtain injunctive or other relief in connection with this Section 14. (Doc. No. 224-2 at 28.) Section 14 of the Motel 6 franchising agreement sets forth the obligations of the franchisee upon termination: including (1) ceasing to “represent to the public or hold itself out as a present or former Motel 6 franchise;” (2) ceasing to “use, by advertising or in any other manner whatsoever, the name ’Motel 6,’ [as well as] any Proprietary Marks or identifying characteristics of the System;” and (3) “immediately makfing] such modifications or alterations as may be necessary to distinguish the Motel" }, { "docid": "14498028", "title": "", "text": "6 property. (See Doc. No. 184 at 1-2.) In all, the offending conduct spanned the course of only three months, yet largely owing to Defendants’ conduct, Plaintiffs’ straightforward claim resulted in protracted litigation. For example, the Court continued trial on multiple occasions due to repeated changes in defense counsel. (Doc. Nos. 85, 87, 94, 134, 135, 139, 140, 149, 190.) On June 3, 2013, defense counsel withdrew its representation of Defendants 1450 Hospitality, Shah, and I. Patel, in part, for their “refusal to correspond with or reply to communications.” (Doc. Nos. 85, 94; see Doc. No. 87.) On May 16, 2014, the Court granted Defendants 1450 Hospitality, Shah and I. Patel’s motion to continue trial because they had retained new counsel on May 9, 2014 and claimed they could not meet the deadlines set forth by this Court. (Doc. No. 139, 140, 149.) However, on February 4, 2015, defense counsel withdrew its representation of 1450 Hospitality, I. Patel and Shah for their failure to pay their legal fees. (Doc. Nos. 187, 190; see Doc. Nos. 130, 134, 135.) Altogether, though for a variety of reasons, the trial date was rescheduled on eight occasions. (Doc. Nos. 38, 47, 62, 104, 137, 149, 157-159, 186, 189.) These continuances were always occasioned by the Defendants and were always necessitated at the eleventh hour after opposing counsel and the Court made substantial investments in preparing for trial. The jury’s conclusion that Defendants S. Patel, I. Patel, and Shah “intentionally or willfully” infringed Motel 6’s trademarks further supports the finding that this case is “exceptional.” (Doc. No. 219.) Although culpability is no longer a “threshold requirement,” the Third Circuit in Fair Wind Sailing, Inc, stated that “blameworthiness may well play a role in a district court’s analysis of the ‘exceptionality’ of a case.” Fair Wind Sailing, Inc., 764 F.3d at 315. The jury’s finding of culpability is evidenced by the delay between the notice of the infringement on or around November 2, 2011,'the preliminary injunc tion entered on December 14, 2011, and the eventual removal of the trademarks on December 31, 2011. (See Doc. Nos." }, { "docid": "14498039", "title": "", "text": "not provide for prejudgment interest. Moscow Distillery Cristall v. Pepsico, Inc., 141 F.3d 1177 (9th Cir.1998) (“Prejudgment interest is available under the Lanham Act only for counterfeiting _”); see also Georgia-Pac. Consumer Prods. LP v. von Drehle Corp., 781 F.3d 710, 722 (4th Cir.2015) (finding no textual support for the conclusion that Section 35(a) authorizes prejudgment interest in an “exceptional” case). Because this case does not involve counterfeiting, the Court is not persuaded that the circumstances warrant an award of prejudgment interest. Accordingly, the Court will deny Plaintiffs’ request for prejudgment interest. III. CONCLUSION For the reasons stated above, Plaintiffs’ petition for treble damages, attorney’s fees, costs and prejudgment interest will be granted in part and denied in part. An order consistent with this memorandum follows. . On January 30, 2013, the parties stipulated and agreed that all pleadings and docket entries in this matter were to be \"amended to replace plaintiff Accor Franchising North America, LLC with G6 Hospitality Franchising LLC, Accor North America, Inc. with G6 Hospitality LLC and Societe de Participations et D’Invesstissements de Motels with G6 Hospitality IP LLC.” (Doc. No. 67.) . In fact, the parties stipulated that Defendants did not completely remove “materials bearing the Motel 6 name or marks” until December 31, 2011. (Doc. No. 215 at Stipulation 31.) . On May 18, 2015, this Court granted Plaintiffs’ motion for default judgment as to Defendant HI Hotel Group for trademark infringement and breach of contract and as to Defendant 1450 Hospitality for trademark infringement under the Lanham Act. (Doc. No. 223.) . The determination of whether infringement \"amount[s] to counterfeiting is a legal conclusion” for the Court, not the jury. See State of Idaho Potato Comm'n, 425 F.3d at 720 (citing Humetrix, Inc. v. Gemplus S.C.A., 268 F.3d 910, 921 (9th Cir.2001)). . Plaintiffs argue that the Third Circuit affirmed the District Court for the Eastern District of Pennsylvania’s decision in Choice Hotels Int'l, Inc. v. Pennave Associates that “a franchisee who continued using the franchisor's 'Clarion Hotel’ marks after the franchise agreement was terminated was liable for statutory counterfeiting damages.” (Doc. No." }, { "docid": "14498033", "title": "", "text": "with any action brought by Franchisor or its Affiliates to enforce this Guarantee or any other action related to or arising out of this Guarantee in which Franchisor or its Affiliates is deemed to be the prevailing party. (Id. at 4-5.) Therefore, in light of the aforementioned provisions of the Motel 6 franchising agreement, the Court will award reasonable attorney’s fees and costs for Plaintiffs’ breach of contract claims against Defendants HI Hotel Group, S. Patel, and Zaver. D. Reasonableness of Attorney’s Fees Having determined that an award of reasonable attorney’s fees is warranted, the Court turns to the reasonableness of the fees requested. Plaintiffs seek to recover a total of $349,250.80 in attorney’s fees for the time and expenses incurred since November 2011. (Doc. No. 224 at 2.) Plaintiffs’ memorandum apportioned the requested attorney’s fees into three categories: (1) $117,982.60 incurred for the breach of contract claim against Defendants HI Hotel Group, Zaver, and S. Patel; (2) $105,877.43 incurred for the trademark infringement claims against the Defendants HI Hotel Group, Zaver, and S. Patel; and (3) $125,389.77 incurred for the trademark infringement claims against 1450 Hospitality, S. Patel, Shah, and I. Patel. (See Doc. No. 224 at 5, 22-23.) “A party seeking attorney fees bears the ultimate burden of showing that its requested hourly rates and the hours it claims are reasonable.” Interfaith Cmty. Org. v. Honeywell Int’l, Inc., 426 F.3d 694, 703 n. 5 (3d Cir.2005) (citing Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir.1990)). The fee petitioner must submit “evidence supporting the hours worked and rates claimed” to satisfy this burden. Id. “The product of an attorney’s hourly rate and the number of hours spent is referred to as the ’lodestar.’” Id. (interior citations omitted). “The lodestar is presumed to be the reasonable fee.” Rode, 892 F.2d at 1183 (citing Blum v. Stenson, 465 U.S. 886, 897, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984)). Accordingly, the Court will first turn to Plaintiffs’ proposed hourly rates. 1. Reasonableness of Hourly Rate Plaintiffs’ counsel, Edward Greenberg, and Kristin Topolewski, contend that the hourly rates charged are reasonable based" }, { "docid": "14498015", "title": "", "text": "committed trademark infringement under the Lanham Act. The jury trial commenced on April 27, 2015 to determine the amount of damages, whether Defendants Zaver, S. Patel, Shah, and I. Patel were personally liable for the infringement, and whether the infringement was intentional. On April 30, 2015, the jury found that Defendant HI Hotel Group’s infringement amounted to $81,000.00 in actual damages and that Defendant 1450 Hospitality’s infringement amounted to $125,000.00 in actual damages. (Doc. No. 219.) The jury also found that: (1) Defendant S. Patel was personally liable for HI Hotel Group and 1450 Hospitality’s infringement; (2) Defendant Zaver was personally liable for HI Hotel Group’s infringement; (3) Defendant I. Patel was personally liable for 1450 Hospitality’s infringement; and (4) Defendant Shah was personally liable for 1450 Hospitality’s infringement. (Id.) Defendants S. Patel, I. Patel, and Shah were also found by the jury to have infringed Motel 6’s trademarks “intentionally or willfully, knowing it was an infringement, or was willfully blind to the infringement.” (Id.) On May 18, 2015, the Court subsequently granted judgment as a matter of law against Defendants HI Hotel Group, S. Patel and Zaver as to Plaintiffs breach of contract claim. (Doc. No. 222.) On May 19, 2015, Plaintiffs petitioned the Court to award Plaintiffs treble damages, attorney’s fees, costs, and prejudg ment interest. (Doc. No. 224.) Plaintiffs contend that they are contractually entitled to reasonable attorney’s fees and costs under the Motel 6 franchising agreement as well as statutorily entitled to treble damages, reasonable attorney’s fees, costs, and prejudgment interest under Section 85 of the Lanham Act. (See id.) On June 2, 2015,- Defendants S. Patel, Shah, and I. Patel wrote this Court to oppose an award of treble damages and attorney’s fees. (See Doc. Nos. 227, 228.) The petition is now ripe for disposition. II. DISCUSSION Section 35 of the Lanham Act, codified at 15 U.S.C. § 1117, lists the several remedies available for trademark infringement by separating and categorizing “each type of monetary award.” Georgia-Pac. Consumer Prods. LP v. von Drehle Corp., 781 F.3d 710, 717 (4th Cir.2015) (citing 15 U.S.C. § 1117)." }, { "docid": "14498014", "title": "", "text": "signs, the building exterior, and guestroom materials.” (See id. at Stipulations 29, 31.) In fact, Defendant 1450 Hospitality used “Motel 6 forms for guests to sign at the registration desk” and issued Motel 6 receipts to guests after payment. (Id. at Stipulation 23.) Defendants 1450 Hospitality and its members, Priyesh Shah (“Shah”)' and In-drajit Patel (“I. Patel”), did not have the right to use the Motel 6 trademarks. (Id. at Stipulation 24.) On November 2, 2011, the Motel 6 franchising agreement was terminated. (Id. at Stipulation 28.) On November 21, 2011, Plaintiffs G6 Hospitality Franchising LLC, G6 Hospitality IP LLC, G6 Hospitality LLC, and Motel 6 Operating L.P. (together “Plaintiffs”) filed the above-captioned action, alleging that Defendants HI Hotel Group and 1450 Hospitality, along with their respective members Zaver, S. Patel, Shah, and I. Patel, infringed Plaintiffs’ Motel 6 trademarks. (Doc. No. 1.) Plaintiffs also brought a breach of contract claim against Defendants HI Hotel Group, S. Patel, and Zaver. (Id.) Prior to trial, the parties stipulated that Defendants HI Hotel Group and 1450 Hospitality committed trademark infringement under the Lanham Act. The jury trial commenced on April 27, 2015 to determine the amount of damages, whether Defendants Zaver, S. Patel, Shah, and I. Patel were personally liable for the infringement, and whether the infringement was intentional. On April 30, 2015, the jury found that Defendant HI Hotel Group’s infringement amounted to $81,000.00 in actual damages and that Defendant 1450 Hospitality’s infringement amounted to $125,000.00 in actual damages. (Doc. No. 219.) The jury also found that: (1) Defendant S. Patel was personally liable for HI Hotel Group and 1450 Hospitality’s infringement; (2) Defendant Zaver was personally liable for HI Hotel Group’s infringement; (3) Defendant I. Patel was personally liable for 1450 Hospitality’s infringement; and (4) Defendant Shah was personally liable for 1450 Hospitality’s infringement. (Id.) Defendants S. Patel, I. Patel, and Shah were also found by the jury to have infringed Motel 6’s trademarks “intentionally or willfully, knowing it was an infringement, or was willfully blind to the infringement.” (Id.) On May 18, 2015, the Court subsequently granted judgment as" }, { "docid": "14498040", "title": "", "text": "D’Invesstissements de Motels with G6 Hospitality IP LLC.” (Doc. No. 67.) . In fact, the parties stipulated that Defendants did not completely remove “materials bearing the Motel 6 name or marks” until December 31, 2011. (Doc. No. 215 at Stipulation 31.) . On May 18, 2015, this Court granted Plaintiffs’ motion for default judgment as to Defendant HI Hotel Group for trademark infringement and breach of contract and as to Defendant 1450 Hospitality for trademark infringement under the Lanham Act. (Doc. No. 223.) . The determination of whether infringement \"amount[s] to counterfeiting is a legal conclusion” for the Court, not the jury. See State of Idaho Potato Comm'n, 425 F.3d at 720 (citing Humetrix, Inc. v. Gemplus S.C.A., 268 F.3d 910, 921 (9th Cir.2001)). . Plaintiffs argue that the Third Circuit affirmed the District Court for the Eastern District of Pennsylvania’s decision in Choice Hotels Int'l, Inc. v. Pennave Associates that “a franchisee who continued using the franchisor's 'Clarion Hotel’ marks after the franchise agreement was terminated was liable for statutory counterfeiting damages.” (Doc. No. 224 at 13-14.) However, neither the district court nor the Third Circuit opinion makes any reference or devotes any discussion to the circuit split identified in the cases above. See Choice Hotels Int'l, Inc. v. Pennave Associates, 159 F.Supp.2d 780, 786 (E.D.Pa.2001). In fact, appellant’s brief in Choice Hotels Int'l, Inc focused on the award of attorney’s fees and did not address the jurisprudential split concerning 15 U.S.C. § 1117(b). Brief for Appellant David S. Miller, Choice Hotels Int'l, Inc. v. Pennave Associates, 43 Fed.Appx. 517 (3d Cir.2002) (Nos. 01-1632, 01-1925, 01-2397), 2001 WL 34609294, at **2-4. . Section 1116(d) adds the additional requirement that a \"counterfeit mark” (1) \"is registered with the U.S. Patent and Trademark Office’s principal register” and (2) that \"the defendant must not have been authorized to use the mark at the time the goods or services were manufactured or produced.” All Star Championship Racing, Inc. v. O'Reilly Auto. Stores, Inc., 940 F.Supp.2d 850, 866 (C.D.Ill.2013) (citing 15 U.S.C.A. § 1116(d)(1)(B)). Section 1116(d) applies for purposes of assessing damages under 15" }, { "docid": "14498023", "title": "", "text": "franchisee continues to use the franchisor’s original trademark after the franchise has been terminated.” U.S. Structures, Inc., 130 F.3d at 1192. The Sixth Circuit succinctly reasoned that, “[although the use of an original trademark is without authorization, it is not the use of a counterfeit mark.” Id. While the Court recognizes the “likelihood of confusion when an infringer uses the exact trademark,” Opticians Ass’n of Am. v. Indep. Opticians of Am., 920 F.2d 187, 195 (3d Cir.1990), the statute’s language and corresponding legislative history indicate that 15 U.S.C. § 1117(b) applies to “the use of spurious marks,” not the unauthorized use of a genuine mark after a license has terminated. See, e.g., Pennzoil-Quaker State Co. v. Smith, No. 05-1505, 2008 WL 4107159, at *21 (W.D.Pa. Sept. 2, 2008) (“[T]he plain language of the statute indicates that the term ’counterfeit’ refers to the mark itself, not the nature of the goods and services associated with the mark ....”); Motor City Bagels, L.L.C. v. Am. Bagel Co., 50 F.Supp.2d 460, 489 (D.Md.1999). Thus, the Court will deny Plaintiffs’ petition for treble damages and attorney’s fees under 15 U.S.C. § 1117(b). B. Attorney’s Fees and Costs on Lan-ham Act Claims under 15 U.S.C. § 1117(a) Having determined that 15 U.S.C. § 1117(b) is not applicable, the Court next turns to whether an award of reasonable attorney’s fees and costs is proper under 15 U.S.C. § 1117(a) for Plaintiffs’ Lanham Act claims. Plaintiffs contend that imposing attorney’s fees and costs is proper under 15 U.S.C. § 1117(a) for all defendants except Zaver because this case is “exceptional.” (See Doc. No. 224 at 11, 17-18, 22-28.) In support thereof, Plaintiffs emphasize how their “efforts to obtain timely resolution of their claims were repeatedly thwarted by defendants’ failure to respond to discovery” as well as the jury’s finding that Defendants S. Patel, I. Patel, and Shah intentionally or willfully infringed the Motel 6 trademarks. (Id. at 2-3,18.) Section 35(a) of the Lanham Act, codified at 15 U.S.C. '§ 1117(a), provides in relevant part as follows: When a violation of any right of the registrant of a" }, { "docid": "14498032", "title": "", "text": "so clearly from its former appearance and from other Motel 6 Motels as to prevent any possibility of confusion therewith by the public.” (Doc. No. 224 at 27.) Moreover, in Attachment 1 to the Motel 6 franchising agreement (“Attachment 1”), Defendants Zaver and S. Patel agree to guarantee, jointly and severally, the franchisor, its affiliates, successors and as signs. (Doe. No. 224-3 at 4.) Attachment 1, in relevant part, provides: The undersigned [Defendants Zaver and S. Patel] hereby agree to defend, protect, indemnify and hold Franchisor, its Affiliates, their respective successors and assigns ... harmless from and against any and all losses, damages, liabilities, costs and expenses (including but not limited to, reasonable attorneys’ fees, reasonable costs of investigation and court costs) resulting from ... any act or omission of, or any failure by Franchisee to perform any obligation of Franchisee under the Franchise Agreement . The undersigned shall pay Franchisor or its Affiliates for all costs and expenses (including, but not limited to, reasonable attorneys’ fees and court costs) incurred by Franchisor in connection with any action brought by Franchisor or its Affiliates to enforce this Guarantee or any other action related to or arising out of this Guarantee in which Franchisor or its Affiliates is deemed to be the prevailing party. (Id. at 4-5.) Therefore, in light of the aforementioned provisions of the Motel 6 franchising agreement, the Court will award reasonable attorney’s fees and costs for Plaintiffs’ breach of contract claims against Defendants HI Hotel Group, S. Patel, and Zaver. D. Reasonableness of Attorney’s Fees Having determined that an award of reasonable attorney’s fees is warranted, the Court turns to the reasonableness of the fees requested. Plaintiffs seek to recover a total of $349,250.80 in attorney’s fees for the time and expenses incurred since November 2011. (Doc. No. 224 at 2.) Plaintiffs’ memorandum apportioned the requested attorney’s fees into three categories: (1) $117,982.60 incurred for the breach of contract claim against Defendants HI Hotel Group, Zaver, and S. Patel; (2) $105,877.43 incurred for the trademark infringement claims against the Defendants HI Hotel Group, Zaver, and S. Patel;" }, { "docid": "14498027", "title": "", "text": "“a district court may find a case ’exceptional,’ and therefore award fees to the prevailing party, when (a) there is an unusual discrepancy in the merits of the positions taken by the parties or' (b) the losing party has litigated the case in an ’unreasonable manner.’” Id. (cit ing Octane Fitness, LLC, 134 S.Ct. at 1756). “[W]hether litigation positions or litigation tactics are ’exceptional’ enough to merit attorney’s fees must be determined by district courts ’in the case-by-case exercise of their discretion, considering the totality of the circumstances.’” Id. (quoting Octane Fitness, 134 S.Ct. at 1756.) Applying these standards to the facts of this case, the Court finds this case “exceptional” for purposes of awarding attorney’s fees under 15 U.S.C. § 1117(a). Plaintiffs’ claim was a straightforward one — that a former franchisee continued to use its trademarks without permission and then transferred the property in a sham transaction to operators who failed to rectify the unauthorized use of its trademarks. Defendants responded with the argument that Defendants had promised to close a competing Motel 6 property. (See Doc. No. 184 at 1-2.) In all, the offending conduct spanned the course of only three months, yet largely owing to Defendants’ conduct, Plaintiffs’ straightforward claim resulted in protracted litigation. For example, the Court continued trial on multiple occasions due to repeated changes in defense counsel. (Doc. Nos. 85, 87, 94, 134, 135, 139, 140, 149, 190.) On June 3, 2013, defense counsel withdrew its representation of Defendants 1450 Hospitality, Shah, and I. Patel, in part, for their “refusal to correspond with or reply to communications.” (Doc. Nos. 85, 94; see Doc. No. 87.) On May 16, 2014, the Court granted Defendants 1450 Hospitality, Shah and I. Patel’s motion to continue trial because they had retained new counsel on May 9, 2014 and claimed they could not meet the deadlines set forth by this Court. (Doc. No. 139, 140, 149.) However, on February 4, 2015, defense counsel withdrew its representation of 1450 Hospitality, I. Patel and Shah for their failure to pay their legal fees. (Doc. Nos. 187, 190; see Doc. Nos." }, { "docid": "14498012", "title": "", "text": "MEMORANDUM Kane, Judge Before the Court is Plaintiffs’ petition for treble damages, attorney’s fees, costs, and prejudgment interest. (Doc. No. 224.) For the reasons that follow, Plaintiffs’ petition will be granted in part and denied in part. I. BACKGROUND On or about October 6, 2009, Defendant HI Hotel Group, LLC (“HI Hotel Group”) and its members, Navnitlal Zaver (“Za-ver”) and Shailesh Patel (“S. Patel”), entered into a Motel 6 franchising agreement with Accor Franchising North America, LLC concerning property located at 1450 Harrisburg Pike, Carlisle, Pennsylvania. (Doc. Nos. 61 ¶ 22; 215 at Stipulation 7; 224-2 at 5, 32, 36; 224-3 at 20.) By September 2011, Defendant HI Hotel Group had breached the franchising agreement by failing to pay the required monthly fees or maintain brand standards. (See Doc. No. 215 at Stipulations 6, 8-10.) In fact, around that time, the motel was rebranded as a Travel Inn and, from September 27, 2011, as a Red Roof Inn. (Id. at Stipulation 18.) As discussed in detail below, the Motel 6 name and marks nonetheless remained in use at the 1450 Harrisburg Pike location. (Id. at Stipulations 19, 20.) The Motel 6 franchising agreement granted Defendant HI Hotel Group the right to use Motel 6 trademarks for the operation of the franchised motel. (Id. at Stipulation 14.) Plaintiff G6 Hospitality IP LLC is the owner of three valid and incontestable federal trademark registrations for the Model 6 marks with registration numbers: 1,816,223, 2,264,831, and 3,660,-463 (“Motel 6 trademarks”). (Id. at Stipulations 15, 17.) By rebranding the motel as a Travel Inn on or around September 2011, Defendant HI Hotel Group lost its right to conduct business using the Motel 6 trademarks. (See id. at Stipulations 19, 20.) Nonetheless, Defendant HI Hotel Group continued to use the Motel 6 trademarks at the 1450 Harrisburg Pike location. (Id. at Stipulation 20.) On or about September 28, 2011, Defendant HI Hotel Group sold the motel to Defendant 1450 Hospitality PA, LLC (“1450 Hospitality”). (Id. at Stipulation 22.) For months, Defendant 1450 Hospitality operated the property with the Motel 6 name and marks on “roadway" }, { "docid": "14498031", "title": "", "text": "(Doc. No. 224 at 2.) Here, in relevant part, Section 14.7 of the Motel 6 franchising agreement entered into between Accor Franchising North America, LLC and Defendant HI Hotel Group, LLC provides: Franchisee [HI Hotel Group, LLC] shall pay upon demand to Franchisor all damages, costs and expenses, including reasonable attorneys’ fees, incurred by Franchisor in connection with Franchisee’s default and/or the early termination or expiration of this Franchise Agreement including, without limitation, those incurred to enforce and/or obtain injunctive or other relief in connection with this Section 14. (Doc. No. 224-2 at 28.) Section 14 of the Motel 6 franchising agreement sets forth the obligations of the franchisee upon termination: including (1) ceasing to “represent to the public or hold itself out as a present or former Motel 6 franchise;” (2) ceasing to “use, by advertising or in any other manner whatsoever, the name ’Motel 6,’ [as well as] any Proprietary Marks or identifying characteristics of the System;” and (3) “immediately makfing] such modifications or alterations as may be necessary to distinguish the Motel so clearly from its former appearance and from other Motel 6 Motels as to prevent any possibility of confusion therewith by the public.” (Doc. No. 224 at 27.) Moreover, in Attachment 1 to the Motel 6 franchising agreement (“Attachment 1”), Defendants Zaver and S. Patel agree to guarantee, jointly and severally, the franchisor, its affiliates, successors and as signs. (Doe. No. 224-3 at 4.) Attachment 1, in relevant part, provides: The undersigned [Defendants Zaver and S. Patel] hereby agree to defend, protect, indemnify and hold Franchisor, its Affiliates, their respective successors and assigns ... harmless from and against any and all losses, damages, liabilities, costs and expenses (including but not limited to, reasonable attorneys’ fees, reasonable costs of investigation and court costs) resulting from ... any act or omission of, or any failure by Franchisee to perform any obligation of Franchisee under the Franchise Agreement . The undersigned shall pay Franchisor or its Affiliates for all costs and expenses (including, but not limited to, reasonable attorneys’ fees and court costs) incurred by Franchisor in connection" }, { "docid": "14498043", "title": "", "text": "Inc., 79 F.Supp.2d 331, 355-56 (S.D.N.Y.1999) (citing Joint Explanatory Statement, 130 Cong. Rec. H. 12,076 at 12,083 (Oct. 10, 1984)). . The parties do not dispute that Plaintiffs are the prevailing party. . Defendants Shah and I. Patel, members of Defendant 1450 Hospitality which purchased the 1450 Harrisburg Pike property, offered testimony at trial that supported Plaintiffs' sham transaction theory. (See Doc. No. 224 at 21.) Defendant Shah testified that he works full time in the New York City metropolitan area, and Defendant I. Patel testified that he did not visit the property until two years after the property’s sale. . In fact, Magistrate Judge Arbuckle was referred this case for a discovery dispute consisting of Defendants Zaver, S. Patel and HI Hotel Group’s refusal to respond to Plaintiffs' interrogatories or document requests and Defendants 1450 Hospitality, Shah, and I. Patel’s refusal to respond to Plaintiffs' document requests. (Doc. Nos. 32, 33, 34.) Additional communication problems with Defendants HI Hotel Group and Zaver led Magistrate Judge Arbuckle, on April 12, 2012, to extend case management order deadlines. (Doc. No. 36-37.) . On December 14, 2011, the Court granted Plaintiffs’ motion for a preliminary injunction and enjoined Defendants HI Hotel Group, Zaver, S. Patel, 1450 Hospitality, Shah and I. Patel from \"utilizing, maintaining, or displaying any signs, fixtures ... or other articles which contain or display the Motel 6 proprietary marks.” (See Doc. Nos. 9-2, 21.) Defendants did not completely remove \"materials bearing the Motel 6 name or marks” until December 31, 2011. (Doc. No. 215 at Stipulation 31.) . \"To recover costs under the Lanham Act, therefore, a plaintiff need not establish that the alleged infringer acted maliciously, fraudulently, deliberately, or willfully.” Planetary Motion, Inc. v. Techsplosion, Inc., 261 F.3d 1188, 1205 (11th Cir.2001); 3-14 Gilson on Trademarks § 14.03 (2015) (\"Under the clear language of the statute, recovery of costs does not require a finding of bad faith or that the case was exceptional .... ”). . Plaintiffs also request reasonable attorney’s fees and costs on their Lanham Act claims against Defendant Zaver pursuant to the franchising agreement. (Doc." }, { "docid": "14498016", "title": "", "text": "a matter of law against Defendants HI Hotel Group, S. Patel and Zaver as to Plaintiffs breach of contract claim. (Doc. No. 222.) On May 19, 2015, Plaintiffs petitioned the Court to award Plaintiffs treble damages, attorney’s fees, costs, and prejudg ment interest. (Doc. No. 224.) Plaintiffs contend that they are contractually entitled to reasonable attorney’s fees and costs under the Motel 6 franchising agreement as well as statutorily entitled to treble damages, reasonable attorney’s fees, costs, and prejudgment interest under Section 85 of the Lanham Act. (See id.) On June 2, 2015,- Defendants S. Patel, Shah, and I. Patel wrote this Court to oppose an award of treble damages and attorney’s fees. (See Doc. Nos. 227, 228.) The petition is now ripe for disposition. II. DISCUSSION Section 35 of the Lanham Act, codified at 15 U.S.C. § 1117, lists the several remedies available for trademark infringement by separating and categorizing “each type of monetary award.” Georgia-Pac. Consumer Prods. LP v. von Drehle Corp., 781 F.3d 710, 717 (4th Cir.2015) (citing 15 U.S.C. § 1117). Section 35 of the Lanham Act distinguishes, in particular, the monetary relief for “counterfeiting” from mere trademark infringement. State of Idaho Potato Comm’n v. G & T Terminal Packaging, Inc., 425 F.3d 708, 720 (9th Cir.2005). As the United States Court of Appeals for the Fourth Circuit summarized in Georgia-Pacific Consumer Products LP: Section 1117(a), which applies generally to trademark infringement cases ... authorizes a plaintiff to recover (1) the defendant’s profits based simply on proof of the defendant’s sales; (2) the plaintiff’s damages; (3) court costs; and (4) in exceptional cases, attorneys fees ... Section 1117(b), on the other hand, mandates the award of treble profits or treble damages for a defendant’s “use of [a] counterfeit mark” if the infringement consists of (1) “intentionally using a mark or designation, knowing such mark or designation is a counterfeit mark,” or (2) “providing goods or services [using such mark], with the intent that the recipient of the goods or services would put the goods or services to use in committing the violation.” 781 F.3d at 717-18" }, { "docid": "14498042", "title": "", "text": "U.S.C. § 1117(b). . In addition to the aforementioned definition of \"trademark counterfeiting” and “spurious,” the legislative history's rationales for exempting “overrun goods” and \"parallel imports” from the term “counterfeit mark” reinforces the notion that counterfeiting refers to the \"use of spurious marks,” as opposed to the unauthorized use of genuine marks. See Sen. Rep. No. 98-526, at 3, 10 (1984); Comprehensive Crime Control Act of 1984, Pub. L. No. 98-473, 98 Stat. 1976, H-12079 (1984). . The Court also declines Plaintiffs’ request for treble damages under 15 U.S.C. § 1117(a). (Doc. No. 224 at 18.) \"Section 1117(a) provides that 'the court may enter judgment, according to the circumstances of the case, for any sum above the amount found as actual damages, not exceeding three times such amount.”’ U.S. Structures, Inc., 130 F.3d at 1191 (emphasis added) (quoting 15 U.S.C. § 1117(a)). The Court is not persuaded that the circumstances of this case warrant trebled damages under 15 U.S.C. § 1117(a). See, e.g., New York State Soc. of Certified Pub. Accountants v. Eric Louis Associates, Inc., 79 F.Supp.2d 331, 355-56 (S.D.N.Y.1999) (citing Joint Explanatory Statement, 130 Cong. Rec. H. 12,076 at 12,083 (Oct. 10, 1984)). . The parties do not dispute that Plaintiffs are the prevailing party. . Defendants Shah and I. Patel, members of Defendant 1450 Hospitality which purchased the 1450 Harrisburg Pike property, offered testimony at trial that supported Plaintiffs' sham transaction theory. (See Doc. No. 224 at 21.) Defendant Shah testified that he works full time in the New York City metropolitan area, and Defendant I. Patel testified that he did not visit the property until two years after the property’s sale. . In fact, Magistrate Judge Arbuckle was referred this case for a discovery dispute consisting of Defendants Zaver, S. Patel and HI Hotel Group’s refusal to respond to Plaintiffs' interrogatories or document requests and Defendants 1450 Hospitality, Shah, and I. Patel’s refusal to respond to Plaintiffs' document requests. (Doc. Nos. 32, 33, 34.) Additional communication problems with Defendants HI Hotel Group and Zaver led Magistrate Judge Arbuckle, on April 12, 2012, to extend case management" }, { "docid": "14498024", "title": "", "text": "Plaintiffs’ petition for treble damages and attorney’s fees under 15 U.S.C. § 1117(b). B. Attorney’s Fees and Costs on Lan-ham Act Claims under 15 U.S.C. § 1117(a) Having determined that 15 U.S.C. § 1117(b) is not applicable, the Court next turns to whether an award of reasonable attorney’s fees and costs is proper under 15 U.S.C. § 1117(a) for Plaintiffs’ Lanham Act claims. Plaintiffs contend that imposing attorney’s fees and costs is proper under 15 U.S.C. § 1117(a) for all defendants except Zaver because this case is “exceptional.” (See Doc. No. 224 at 11, 17-18, 22-28.) In support thereof, Plaintiffs emphasize how their “efforts to obtain timely resolution of their claims were repeatedly thwarted by defendants’ failure to respond to discovery” as well as the jury’s finding that Defendants S. Patel, I. Patel, and Shah intentionally or willfully infringed the Motel 6 trademarks. (Id. at 2-3,18.) Section 35(a) of the Lanham Act, codified at 15 U.S.C. '§ 1117(a), provides in relevant part as follows: When a violation of any right of the registrant of a mark registered in the Patent and Trademark Office ... the plaintiff shall be entitled ... to recover (1) defendant’s profits, (2) any damages sustained by the plaintiff, and (3) the costs of the action.. .In assessing damages the court may enter judgment, according to the circumstances of the case, for any sum above the amount found as actual damages, not exceeding three times such amount .... The court in exceptional cases may award reasonable attorney fees to the prevailing party. 15 U.S.C. § 1117(a) (emphasis added). The Lanham Act does not define what constitutes “an exceptional case” for purposes of awarding attorney’s fees under 15 U.S.C. § 1117(a). Securacomm Consulting, Inc. v. Securacom Inc., 224 F.3d 273, 279-80 (3d Cir.2000); 3-14 Gilson on Trademarks § 14.03 (2015). For decades, the Third Circuit had “held that an exceptional case under § 35(a) must involve culpable conduct on the part of the losing party.” See Securacomm Consulting, Inc., 224 F.3d at 280 (citing Ferrero U.S.A., Inc. v. Ozak Trading, Inc., 952 F.2d 44, 47 (3d Cir.1991)). Willful" }, { "docid": "14498045", "title": "", "text": "No. 224 at 23.) In light of the aforementioned provisions of the Motel 6 franchising agreement, the Court will similarly award reasonable attorney’s fees and costs for Plaintiff's Lanham Act claims against Defendant Zaver pursuant to the franchising agreement. . Plaintiffs claim that they '‘incurred a total . of $3,930.50 in costs as to their breach of contract claim against the HI Hotel defendants, $1,960.69 in costs as to their trademark infringement claims against the HI Hotel defendants, and $1,672.22 in costs as to their trademark infringement claims against the 1450 Hospitality defendants.” (Doc. No. 224 at 10.) . The decision to impose joint and .several liability or impose an award of attorney’s fees jointly and severally against certain defendants is within the district court’s discretion. See Getty Petroleum Corp. v. Bartco Petroleum Corp., 858 F.2d 103, 114 (2d Cir.1988) (addressing a district court's award of attorney’s fees under the Lanham Act); see, e.g., Mike Vaughn Custom Sports, Inc. v. Piku, No. 12-13083, 2015 WL 4603171, at *7 (E.D.Mich. July 30, 2015); Johnson & Johnson v. Azam Int'l Trading, No. 07-CV-4302 SLT SMG, 2013 WL 4048295, at *17 (E.D.N.Y. Aug. 9, 2013); PepsiCo, Inc. v. IRIE Motivations, Inc., No. 08-2242, 2008 WL 5732153, at *1 (C.D.Cal. Dec. 29, 2008); see also Dumas v. Dagl, No. 88-2293, 1990 WL 258343, at *6 (S.D.N.Y. May 22, 1990) (\"Ordinarily all defendants should be jointly and severally liable for costs” in a copyright infringement case). As such, the Court will find the Defendants jointly and severally liable as detailed in the accompanying order." }, { "docid": "14498013", "title": "", "text": "in use at the 1450 Harrisburg Pike location. (Id. at Stipulations 19, 20.) The Motel 6 franchising agreement granted Defendant HI Hotel Group the right to use Motel 6 trademarks for the operation of the franchised motel. (Id. at Stipulation 14.) Plaintiff G6 Hospitality IP LLC is the owner of three valid and incontestable federal trademark registrations for the Model 6 marks with registration numbers: 1,816,223, 2,264,831, and 3,660,-463 (“Motel 6 trademarks”). (Id. at Stipulations 15, 17.) By rebranding the motel as a Travel Inn on or around September 2011, Defendant HI Hotel Group lost its right to conduct business using the Motel 6 trademarks. (See id. at Stipulations 19, 20.) Nonetheless, Defendant HI Hotel Group continued to use the Motel 6 trademarks at the 1450 Harrisburg Pike location. (Id. at Stipulation 20.) On or about September 28, 2011, Defendant HI Hotel Group sold the motel to Defendant 1450 Hospitality PA, LLC (“1450 Hospitality”). (Id. at Stipulation 22.) For months, Defendant 1450 Hospitality operated the property with the Motel 6 name and marks on “roadway signs, the building exterior, and guestroom materials.” (See id. at Stipulations 29, 31.) In fact, Defendant 1450 Hospitality used “Motel 6 forms for guests to sign at the registration desk” and issued Motel 6 receipts to guests after payment. (Id. at Stipulation 23.) Defendants 1450 Hospitality and its members, Priyesh Shah (“Shah”)' and In-drajit Patel (“I. Patel”), did not have the right to use the Motel 6 trademarks. (Id. at Stipulation 24.) On November 2, 2011, the Motel 6 franchising agreement was terminated. (Id. at Stipulation 28.) On November 21, 2011, Plaintiffs G6 Hospitality Franchising LLC, G6 Hospitality IP LLC, G6 Hospitality LLC, and Motel 6 Operating L.P. (together “Plaintiffs”) filed the above-captioned action, alleging that Defendants HI Hotel Group and 1450 Hospitality, along with their respective members Zaver, S. Patel, Shah, and I. Patel, infringed Plaintiffs’ Motel 6 trademarks. (Doc. No. 1.) Plaintiffs also brought a breach of contract claim against Defendants HI Hotel Group, S. Patel, and Zaver. (Id.) Prior to trial, the parties stipulated that Defendants HI Hotel Group and 1450 Hospitality" }, { "docid": "14498029", "title": "", "text": "130, 134, 135.) Altogether, though for a variety of reasons, the trial date was rescheduled on eight occasions. (Doc. Nos. 38, 47, 62, 104, 137, 149, 157-159, 186, 189.) These continuances were always occasioned by the Defendants and were always necessitated at the eleventh hour after opposing counsel and the Court made substantial investments in preparing for trial. The jury’s conclusion that Defendants S. Patel, I. Patel, and Shah “intentionally or willfully” infringed Motel 6’s trademarks further supports the finding that this case is “exceptional.” (Doc. No. 219.) Although culpability is no longer a “threshold requirement,” the Third Circuit in Fair Wind Sailing, Inc, stated that “blameworthiness may well play a role in a district court’s analysis of the ‘exceptionality’ of a case.” Fair Wind Sailing, Inc., 764 F.3d at 315. The jury’s finding of culpability is evidenced by the delay between the notice of the infringement on or around November 2, 2011,'the preliminary injunc tion entered on December 14, 2011, and the eventual removal of the trademarks on December 31, 2011. (See Doc. Nos. 21; 223 at 3.) The Court similarly finds that Defendants HI Hotel Group and 1450 Hospitality were “culpable for their failure to obtain counsel, having been warned by the Court previously that an LLC’s failure to retain counsel [would] result in this Court’s default judgment.” (Doc. No. 223 at 3.) Thus, considering the totality of the circumstances, the Court concludes that this case is “exceptional” for purposes of attorney’s fees and costs under 15 U.S.C. § 1117(a). Fair Wind Sailing, Inc., 764 F.3d at 315. As to all Defendants save Zaver, the Court will award reasonable attorney’s fees and costs for Plaintiffs’ Lanham Act claims under 15 U.S.C. § 1117(a). C. Attorney’s Fees and Costs under the Franchising Agreement Having addressed whether awarding reasonable attorney’s fees and costs is proper under 15 U.S.C. § 1117(a) for Plaintiffs’ Lanham Act claims, the Court next turns to Plaintiffs’ request for reasonable attorney’s fees and costs on their breach of contact claims against Defendants HI Hotel Group, S. Patel, and Zaver pursuant to the Motel 6 franchising agreement." } ]

[ { "docid": "13853106", "title": "", "text": "restriction, could lead to the most contemptible censorship of unpopular ideas or “unpleasant” messages. Second, even if aesthetics were a compelling interest, the content-based distinction in the ordinance cannot conceivably further that interest. It would be ludicrous to suggest that a temporary for sale sign is more aesthetically pleasing than a political sign, and defendants do not make that argument. The only way the Ordinance furthers the aesthetic interest is simply to lessen the total number of signs that will be posted, but again there must be a reason for limiting signs in the manner undertaken by the Ordinance, rather then in some other, content-neutral, way. “Insofar as the city tolerates [signs] at all, it cannot choose to limit their content to commercial messages; the city may not conclude that [commercial messages] are of greater value than ... non-commercial messages.” Metromedia, 453 U.S. at 513, 101 S.Ct. at 2895. Plaintiff then, has a strong likelihood of success on the merits of his claim, and together with those discussed in part II, all requirements for injunctive relief have been met. In an effort to clarify what may not have been clear in our original order, today we issue an amended order explicating that the injunction is prospective only; it prohibits any new enforcement actions from being brought after the date of the original order. ORDER AND NOW, this 17th day of May, 1991, for the reasons set forth in the accompanying memorandum opinion, IT IS HEREBY ORDERED THAT: (1) The order of this court in the above captioned case dated May 8, 1991, is superseded by the instant order. (2) Plaintiffs motion for Preliminary Injunction is GRANTED. Pending a full hearing on this matter, defendants, Township of Lawrence Park and Paul J. Jazenski are RESTRAINED, ENJOINED AND PROHIBITED from enforcing or attempt ing to enforce § 404.3 of the Lawrence Park Township Zoning Ordinance relative to political and/or campaign signs in any enforcement action which had not been instituted before May 8th, 1991, the date of the original order. (3) Plaintiff shall give security in the sum of $1,000.00 pursuant to" } ]

[ { "docid": "16558990", "title": "", "text": "a delay in eliminating one out of every thirty phone calls. See Moser, 811 F.Supp. at 545. I therefore cannot conclude that this hardship outweighs the harm that would be imposed on the plaintiffs. “In addition, in cases involving First Amendment speech rights, consideration of the public interest tends to weigh in favor of enjoining undue restrictions on expression.” Citizens United for Free \"Speech, 802 F.Supp. at 1238. I therefore conclude that the balance of harms and the public interest strongly weigh in favor of permitting the free exercise of First Amendment rights in this case. Conclusion For the foregoing reasons, the plaintiffs’ application for preliminary injunctive relief is granted. ORDER This matter having come before the court on the motion of plaintiffs for a preliminary injunction enjoining the defendants from enforcing Senate Bill No. 511; and this court having fully considered the submitted briefs and the record before it, including the oral arguments made on November 10,1993; and for the reasons expressed in an opinion issued this same day; and for good cause shown; It is on this 16th day of November, 1993 ORDERED that plaintiffs’ motion for a preliminary injunction is granted; and it is further ORDERED that plaintiffs shall post a bond pursuant to Rule 65(c) of the Federal Rules of Civil Procedure in the amount of $15,000. . A \"caller” is defined as \"a person who attempts to contact or contacts a subscriber in this State by telephone or using a telephone line.” A “subscriber” is defined as \"a person who has subscribed to telephone service from a telephone company regulated as a public utility ... or from a company offering mobile telephone service.” The Act does not define \"commercial advertisement.\" . The Act was scheduled to go into effect on November 13, 1993. However, at oral argument held before this court on November 10, 1993, the state stipulated that it would refrain from prosecuting any violators of the Act until November 18, 1993. . Defendant relies on Casino Marketing in support of its position that the Act is content-neutral. However, that case was decided prior" }, { "docid": "1600051", "title": "", "text": "(9th Cir.2001) (citing cases); see also Burlington N.R.R. Co. v. Dep’t of Revenue, 934 F.2d 1064, 1074 (9th Cir.1991) (“The standard requirements for equitable relief need not be satisfied when an injunction is sought to prevent the violation of a federal statute which specifically provides for in-junctive relief’); Gresham v. Windrush Partners, Ltd., 730 F.2d 1417, 1423 (11th Cir.1984) (“irreparable injury may be presumed from the fact of discrimination and violation of fair housing statutes”). However, while irreparable harm may be presumed, Plaintiffs have not demonstrated that the broad two year blanket injunction they request is necessary to prevent that harm. In the cases cited by Plaintiff above, defendants were enjoined from further violation of the Fair Housing Act over a period of time. In this case, the relief requested is much broader; that Defendants be enjoined for two years from interfering in any way with Pathways’ relocation. As noted by Defendants, the result would be that the town would be powerless to enforce other regulations and make Pathways comply with a variety of generally applicable restrictions that are in the public interest. This would be to give preferential treatment to people with disabilities, rather put them on equal footing as intended by Congress in passing the statute. Smith v. Clarkton, 682 F.2d 1055, 1068 (4th Cir.1982). Additionally, the requested injunction would interfere with Leonardtown’s and the public’s legitimate interest in the enforcement of Leonard-town’s ordinances. Accordingly, the requested injunctive relief is not appropriate and will be denied. IV. Conclusion For the foregoing reasons, the court will deny Defendants’ motion for judgment under Rule 50 or, in the alternative, for new trial under Rule 59. Plaintiffs’ motion for declaratory and injunctive relief will be granted in part and denied in part. A separate order will be entered. ORDER For the reasons stated in the foregoing Memorandum Opinion, it is this_day of August, 2002, by the United States District Court for the District of Maryland, ORDERED that: 1. Defendants’ motion for judgment as a matter of law under Fed.R.Civ.P. 50, or, in the alternative, for new trial under Fed. R.Civ.P. 59" }, { "docid": "15927056", "title": "", "text": "has explained that LaRue lends “no support” to an ordinance authoritatively construed by the state courts as applying to “all live entertainment” when, as in the case at hand, nothing indicates that “unusual problems are presented by live entertainment” generally. See Schad, 452 U.S. at 67, 73-74, n. 15, 101 S.Ct. 2176 (striking ordinance as overbroad and explaining that even if city could “validly place restrictions on certain forms of live nude dancing under a narrowly tailored ordinance, that would not justify the exclusion of all live entertainment ... [including] the nude dancing involved in this case”). For these reasons, we conclude that the district court did not abuse its discretion in finding that Carandola would likely prevail on its overbreadth challenge. Accordingly, we need not consider Carandola’s alternative claims that the restrictions are unconstitutionally vague and unconstitutional as applied. IV. The remaining factors to be considered in awarding a preliminary injunction — the alleged irreparable injury to the plaintiff without an injunction, the potential harm to the defendant from the injunction, and the public interest — all weigh in favor of Carandola. As to Carandola’s irreparable injury, the Supreme Court has explained that “loss of First Amendment rights, for even minimal periods of time, unquestion ably constitutes irreparable injury.” See Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) (citation omitted). We also note that Carandola faces the threat of a substantial fine and temporary suspension of its license on the basis of past conduct, and pro-spectively, the loss of valuable business opportunities. With respect to the harm that would befall if the injunction is left in place, we agree with the district court that a state is “in no way harmed by issuance of a preliminary injunction which prevents the state from enforcing restrictions likely to be found unconstitutional. If anything, the system is improved by such an injunction.” Carandola, 147 F.Supp.2d at 395. The final prerequisite to the grant of a preliminary injunction is that it serve the public interest. Again, we agree with the district court that upholding constitutional rights surely" }, { "docid": "12356023", "title": "", "text": "of the Plan as it is currently written, and the balancing of the harm weighs in favor of granting plaintiffs’ request, and protecting the public’s right to constitutional protections. It may be that a post accident plan could be developed which would not infringe upon legitimate fourth amendment expectations; however, as the Sullivan court stated: [i]t is not the task of the Court to propose subcategories which might meet constitutional standards; rather the burden is on the agency ‘to redefine a new category of employees,’ who may legitimately be subject to this kind of testing. Sullivan, at 302, quoting Harmon, 878 F.2d 484, 491 n. 10. Accordingly, I will grant plaintiffs’ request for a preliminary injunction as to the post accident and unsafe practices portion of the DLA Plan. IV. SECURITY In Roth v. Bank of the Commonwealth, 583 F.2d 527 (6th Cir.1978), the Sixth Circuit held that a trial court must exercise the discretion required of it by Fed.R.Civ.P. 65(c) and expressly consider the question of requiring a bond before issuing a preliminary injunction. Roth, 583 F.2d at 539. However, it also recognizes that the actual requirement of a bond is discretionary with the trial judge. Id.; USACO Coal Co. v. Carbomun Energy, Inc., 689 F.2d 94, 100 (6th Cir.1982) (amount of security given by applicant for an injunction is matter of discretion for trial court, which may require no security at all). In this case, I do not believe that the possibility of material damages will follow the partial granting of plaintiffs’ motion. Accordingly, I will not require the posting of a bond. See Urbain v. Knapp Brothers Manufacturing Company, 217 F.2d 810, 816 (6th Cir.1954). See also Crowley v. Local No. 82, Furniture and Piano Moving, 679 F.2d 978, 1000 (1st Cir.1982) (no bond required in suits to enforce important federal rights or public interests). ORDER In accordance with the opinion entered this date: IT IS HEREBY ORDERED that plaintiffs’ motion for a preliminary injunction is GRANTED IN PART and DENIED IN PART, as follows: IT IS ORDERED that defendants are enjoined from implementing random urinalysis testing" }, { "docid": "16558989", "title": "", "text": "pursuant to the Act. See Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965); see also Citizens United for Free Speech II v. Long Beach Township Bd. of Comm’rs, 802 F.Supp. 1223, 1237-38 (D.N.J.1992) (distinguishing Hohe). In other words, this case involves “direct penalization” of plaintiffs’ First Amendment rights, rather than an “incidental inhibition.” I therefore find that under the circumstances of this case, plaintiffs would suffer irreparable harm if the preliminary injunction were not issued. See Moser, 811 F.Supp. 541, 546 (D.Or.1992). C. Balancing of Public and Private Interests The final two elements of the preliminary injunction analysis, the balance of harms and the public interest, also support issuance of a preliminary injunction. The only harm that would result from a preliminary injunction is that citizens of New Jersey would continue to receive prerecorded commercial telephone advertisements during the pendency of the litigation. As noted above, the ban would only eliminate less than three percent of all telemarketing calls. Therefore, the hardship to the state and the public interest is a delay in eliminating one out of every thirty phone calls. See Moser, 811 F.Supp. at 545. I therefore cannot conclude that this hardship outweighs the harm that would be imposed on the plaintiffs. “In addition, in cases involving First Amendment speech rights, consideration of the public interest tends to weigh in favor of enjoining undue restrictions on expression.” Citizens United for Free \"Speech, 802 F.Supp. at 1238. I therefore conclude that the balance of harms and the public interest strongly weigh in favor of permitting the free exercise of First Amendment rights in this case. Conclusion For the foregoing reasons, the plaintiffs’ application for preliminary injunctive relief is granted. ORDER This matter having come before the court on the motion of plaintiffs for a preliminary injunction enjoining the defendants from enforcing Senate Bill No. 511; and this court having fully considered the submitted briefs and the record before it, including the oral arguments made on November 10,1993; and for the reasons expressed in an opinion issued this same day; and for good cause shown;" }, { "docid": "14959769", "title": "", "text": "provide continuity in the county’s administration, (d) will insure minority access to the political process, (e) will provide districts of less than 2% deviation, (f) possibly will lend itself to a permanent solution at the conclusion of the trial of these cases on the merits, and (g) should not be unduly burdensome to execute using the current electoral process. Notwithstanding the foregoing, it is clear that the preliminary injunction will place administrative and financial burdens on the defendant. Such burdens, however, are not, in the opinion of the court, undue in view of the otherwise irreparable harm to be incurred by plaintiffs. C. The Public Interest Would Be Served By The Issuance of an Injunction 13. Congress established that the public interest requires that election systems that unlawfully dilute black voting strength not be used, 42 U.S.C. 1973, and authorized the Attorney General to seek preliminary relief to prevent a violation of the Voting Rights Act. 42 U.S.C. 1973j(d). The public interest would therefore be served if black citizens are afforded an equal opportunity to elect county commissioners of their choice. CONCLUSION Accordingly, based on all of the above considerations, the court finds that: 1. Plaintiffs have met their burden of showing they will suffer irreparable injury without the requested relief; 2. Granting the preliminary injunction harms the defendants, but the balance of harm tips in favor of the plaintiffs; 3. Plaintiffs have met their burden of showing they will likely succeed on the merits of this dispute; and 4. The. public interest favors issuance of the preliminary injunction. For the foregoing reasons, plaintiffs’ motions for preliminary injunction were granted by order of the court entered July 2, 1984, which order is effective herewith. SO ORDERED. . Most of the recited facts are undisputed. Where disputed, the court's findings, while supported by affidavits, are tentative, and are found for the purpose of ruling on plaintiffs’ respective motions. . The five residency districts are the same districts adopted in 1943 N.C.Sess.Laws 317. See 1959 N.C.Sess.Laws 1041. The districts follow township lines: District 1: Brinkleyville, Butterwood and Little-ton District 2: Roanoke Rapids" }, { "docid": "8978100", "title": "", "text": "Supreme Court has noted that “the legislature must have some leeway in determining which of its employment positions require restrictions on partisan political activities and which may be left unregulated.” Broadrick, 413 U.S. at 607 n. 5, 93 S.Ct. at 2913 n. 5 (citing McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961)). “A state can hardly be faulted for attempting to limit the positions upon which such restrictions are placed.” Id. The legislature has not expressly provided second class townships and boroughs with the authority to limit the political campaigning of their police officers. There is, however, no mandated police civil service system employed in those types of subdivisions either. This is precisely the type of deference that the Supreme Court noted in Broadrick. The plaintiff fails to explain why the legislature’s determination that those forms of local government which are required to provide civil service protection to their police officers may not exercise the state’s interest in prohibiting the effects of political campaigning from affecting this type of civil service system. Every officer within plaintiffs class is provided with the protection and is equally restricted from campaigning for public office. Therefore, the court believes that plaintiff is not likely to succeed on the equal protection claim. C. Harm to the Defendant and the Public Interest The adverse effect upon the opposing party will be great if the court grants a preliminary injunction. Granting such relief Would also not be in the public interest. In deciding whether to grant injunctive relief, the court should consider whether issuing a preliminary injunction would cause greater harm to the other party. The defendant notes that its interest and the public interest are the same. This court agrees. Plaintiff contends that granting the injunction will not harm the defendant and therefore only a nominal bond should be required. The defendant contends that the issuance of a preliminary injunction will effectively undermine the interest of the township and the public in maintaining the integrity of the township’s police force. The appearance of impropriety with regard to the integrity of the" }, { "docid": "12654249", "title": "", "text": "interest” prong, the court credited Arizona’s uncontroverted assertion that Arizona has a substantial government interest in traffic safety. Applying the “direct advancement” prong, the court concluded that the day labor provisions directly advance that interest because they prohibit traffic-blocking activity that would otherwise take place. Under the “not more extensive than necessary” prong, however, the district court first held that the day labor provisions are content-based restrictions and then held that the “[defendants have not shown that [they] ... are drawn to achieve the substantial governmental interest in traffic safety.” On the contrary, the district court noted, the ordinance “appears to be structured to target particular speech rather than a broader traffic problem.” The court cited the purposes clause of S.B. 1070 and the existence of obvious and less-burdensome alternatives as further evidence that the day labor provisions were not drawn to advance Arizona’s interest in traffic safety. The district court concluded that the plaintiffs are likely to succeed on the merits because the day labor provisions are insufficiently tailored under Central Hudson’s fourth prong as modified by Sorrell. It then found that the other requirements for a preliminary injunction (irreparable harm, balance of the equities and the public interest) were met and granted a preliminary injunction barring enforcement of the provisions. The intervenor defendants filed this interlocutory appeal. Standard of Review “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). We review an order granting a preliminary injunction for an abuse of dis cretion. See Katie A. ex rel. Ludin v. Los Angeles County, 481 F.3d 1150, 1155 (9th Cir.2007). “Under this standard, [a]s long as the district court got the law right, it will not be reversed simply because the appellate court would have arrived at a different result if" }, { "docid": "10225274", "title": "", "text": "but apply equally to all states and local jurisdictions. Given the nationwide scope of the Order, and its apparent constitutional flaws, a nationwide injunction is appropriate. YI. INJUNCTION AGAINST THE PRESIDENT The Government also 'argues that, if an injunction is issued, it should not issue against the President. An injunction against the President personally is an “extraordinary measure not lightly to be undertaken.” Swan v. Clinton, 100 F.3d 973, 978 (D.C. Cir. 1996); see Newdow v. Bush, 391 F.Supp.2d 95, 106 (D.D.C. 2005) (“[T]he Supreme Court has sent a clear message that an injunction should not be issued against the President for official acts.”). The Counties assert that the court “has discretion to determine whether the constitutional violations in the Executive Order may be remedied by an injunction against the named inferior officers, or whether this is an extraordinary circumstance where injunctive relief against the President himself is warranted.” I conclude that an injunction against the President is not appropriate. The Counties seek to enjoin the Executive Order which directs the Attorney General and the Secretary to carry out the provisions of Section 9. The President has no role in implementing Section 9. It is not clear how an injunction against the President would remedy the constitutional violations the Counties have alleged. On these facts, the extraordinary remedy of enjoining the President himself is not appropriate. CONCLUSION The Counties have demonstrated that they are likely to succeed on the merits of their challenge to Section 9(a) of the Executive Order,, that-they will suffer irreparable harm absent an' injunction, and that the balance of harms and public interest weigh in their favor. The Counties’ motions for a nationwide preliminary. injunction, enjoining enforcement of Section 9(a), are GRANTED. The defendants (other than the President) are-enjoined from enforcing Section 9(a) of the Executive Order against jurisdictions they deem as sanctuary jurisdictions. This injunction does not impact the Government’s ability to use lawful means to enforce existing conditions' of federal grants or 8 U.S.C. 1373, nor does it restrict the Secretary from developing regulations or preparing guidance on designating a jurisdiction as a “sanctuary" }, { "docid": "11337044", "title": "", "text": "is noted that the present case is distinguishable from the Supreme Court’s decision in City of Erie v. Pap’s AM., 529 U.S. 277, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000), in which an Erie, Pennsylvania ordinance prohibiting nudity was upheld as constitutional. The Court held that the Erie ordinance regulated conduct alone, was content-neutral, and was not directed at restricting nude dancing which conveys an “erotic message” protected by the First Amendment. Pap’s AM., 529 U.S. at 289-90, 120 S.Ct. 1382. In contrast, Daytona Beach’s Land Development Code directly restricts the operation of “adult theaters ” that seek to convey a message of sexuality through nude dancing. Hence, Pap’s AM. does not provide a justification to uphold Daytona Beach’s Land Development Code as applied to adult theaters. Based on the above findings as to the applicability of the prior restraint doctrine, the court finds that Plaintiffs are entitled to preliminary injunctive relief enjoining Daytona Beach from enforcing the Land Development Code with respect to adult theaters. Each element for granting preliminary relief is present. First, for the reasons set forth above, there is a substantial likelihood that Plaintiffs will prevail with respect to their challenge to Daytona Beach’s Land Development Code. Second, the Supreme Court has held that even minimal infringements upon First Amendment protections constitute “irreparable harm.” Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). Third, in weighing Plaintiffs’ injury against the potential damage that Daytona Beach may suffer from the injunction, the court finds that no harm can come to the City by being prohibited from enforcing an unconstitutional zoning scheme. Finally, with respect to the fourth preliminary injunction factor, the court finds that the public interest is championed by judicial protections of legal speech — even when such speech is not applauded by the public at large. Accordingly, Daytona Beach is preliminarily enjoined from enforcing Art. 11 § 4.1 and Art. 17 § 2.1 of its Land Development Code against adult theaters. Daytona Beach’s Alleged Police Practices In its preliminary injunction motion, Boulevard Del seeks to enjoin the City police officers" }, { "docid": "8702987", "title": "", "text": "its business. Rather, the injunction will merely prevent Defendant from marketing this aspect of its business in a way that infringes the “Polk” mark. Finally, as outlined below, the Court shall grant Defendant a reasonable period of time in order to comply with the injunction, which should minimize the potential for harm to third parties. 4. Whether the Public Interest Would be Served by Issuance of the Injunction The public interest is served by protecting a trademark holder’s interest in its mark and by preventing consumer confusion. See Blockbuster, 869 F.Supp. at 516; PACCAR, 115 F.Supp.2d at 780. Accordingly, the Court finds that an injunction in this case serves the public interest. 5. BOND Rule 65 of the Federal Rules of Civil Procedure states: No restraining order or preliminary injunction shall issue except upon the giving of security by the applicant, in such sum as the court deems proper, for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained. Fed.R.Civ.P. 65(c) (emphasis added). Whether to require the applicant to provide security pursuant to Rule 65(c) is a matter within the discretion of the district court. Urbain v. Knapp Bros. Mfg. Co., 217 F.2d 810, 816-17 (6th Cir.1954). Neither party has addressed whether Plaintiff should be required to post security upon the issuance of an injunction. As indicated above, the Court will grant Plaintiffs motion for preliminary injunction. However, without further input from the parties, the Court is not in a position to determine whether Plaintiff should be required to post security, and if so, in what amount. The Court shall therefore require the parties to submit supplemental briefs addressing the matter of appropriate security and shall stay its order pending an expedited resolution of this matter. III. CONCLUSION For the reasons set forth above, IT IS HEREBY ORDERED that Plaintiffs motion for preliminary injunction [docket entry 2] is GRANTED. IT IS FURTHER ORDERED that the Court’s order granting a preliminary injunction is STAYED until the Court resolves the issue of security pursuant to" }, { "docid": "10212890", "title": "", "text": "of the United States Code. Thereafter, on June 22, 1992, Coast Cities filed an adversary proceeding against Navistar for declaratory relief, seeking a declaration that the Dealer Agreement was an existing executory contract assumable under 11 U.S.C. § 365 or, in the alternative, the recovery of the Dealer Agreement under 11 U.S.C. § 548 as a' “fraudulent transfer.” On July 6, 1992, the bankruptcy court issued temporary restraints against Navistar, compelling the defendant to process orders placed by Coast Cities. The restraints were to remain in effect pending a final hearing on the issuance of a preliminary injunction, which was subsequently granted by the bankruptcy court on September 2, 1992, requiring Navistar to comply with the Dealer Agreement. Upon the bankruptcy court’s denial of defendant's application for a stay of the preliminary injunction pending appeal, defendant appealed to this Court pursuant to Bankruptcy Rule 8005. On September 8, 1992, this Court denied Navistar’s motion for a stay pending appeal. On September 30, 1992, this Court heard oral argument on the merits of the appeal. For the reasons set forth below, the Order enjoining Navistar's termination of the Dealer Agreement is hereby reversed. III. DISCUSSION The grant of injunctive relief is an “extraordinary remedy, which should be granted only in limited circumstances.” Frank’s GMC Truck Center, Inc. v. General Motors Corp., 847 F,2d 100, 102 (3d Cir.1988) (citing United States v. City of Philadelphia, 644 F.2d 187, 191 n. 1 (3d Cir.1980)). When deciding such a motion, a court must consider four factors: (1) the moving party’s likelihood of success on the merits; (2) the probability of irreparable injury to the moving party in the absence of relief; (3) the potential harm to the non-moving party; and, if applicable, (4) the public interest. Fechter v. HMW Indus., Inc., 879 F.2d 1111, 1116 (3d Cir.1989) (citing United States v. Price, 688 F.2d 204, 211 (3d Cir.1982)). “Only if the movant produces evidence sufficient to convince the trial judge that all four factors favor preliminary relief should the injunction issue.” Opticians Ass’n of America v. Independent Opticians of America, 920 F.2d 187, 192" }, { "docid": "3454576", "title": "", "text": "City of Redondo Beach, 657 F.3d 936, 948-50 (9th Cir.2011) (striking down ordinance prohibiting solicitation of business, employment, and contributions on streets and highways as overbroad). Since the City has not carried its burden of showing that the challenged provision satisfies strict scrutiny, the Court finds that plaintiffs have established a likelihood of success on the merits of their claim that the last sentence of § 9.05.050 is facially invalid under the First Amendment. In First Amendment cases, “the likelihood of success on the merits will often be the determinative factor.” Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1145 (10th Cir.2013) (citation omitted). The Court also finds that plaintiffs have satisfied the other factors that justify issuance of a temporary restraining order. As to irreparable harm, should the last sentence of § 9.05.050 go into effect on March 23, 2014, plaintiffs will suffer irreparable harm to their First Amendment right to display their signs. The “loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Heideman v. South Salt Lake City, 348 F.3d 1182, 1190 (10th Cir.2003) (citation omitted). The third and fourth factors identified in Roda Drilling, 552 F.3d at 1208, also weigh in favor of plaintiffs. When a law is' likely unconstitutional, the government’s interest in enforcing the law does not outweigh that of individuals in securing the protection of their constitutional rights. Awad v. Ziriax, 670 F.3d 1111, 1131 (10th Cir.2012). “[I]t is always in the public interest to prevent the violation of a party’s constitutional rights.” Id. at 1132. The Court finds that plaintiffs have satisfied the elements necessary to obtain a temporary restraining order of the challenged sentence in § 9.05.050. III. CONCLUSION For the foregoing reasons, it is ORDERED that the portion of Plaintiffs’ Motion for Temporary Restraining Order and Preliminary Injunction [Docket No. 6] seeking a temporary restraining order is GRANTED in part. It is further ORDERED that the City of Grand Junction, Colorado and its officers, agents, servants, employees, and attorneys are enjoined from enforcing the last sentence of Grand Junction, Colo. Mun.Code § 9.05.050" }, { "docid": "4925162", "title": "", "text": "discretion. United States v. Lambert, 695 F.2d 536 (11th Cir.1983); Deerfield Medical Center v. City of Deerfield Beach, 661 F.2d 328 (5th Cir.1981). In exercising its discretion, the court must consider and balance the four recognized prerequisites to preliminary injunc-tive relief as enunciated by the Eleventh Circuit Court of Appeals: (1) a substantial likelihood that the movant will prevail on the underlying merits of the case, (2) a substantial threat that the moving party will suffer irreparable damage if relief is denied, (3) a finding that the threatened injury to the movant outweighs the harm the injunction may cause defendant, and (4) a finding illustrating the extent to which granting the preliminary injunction will dis-serve the public interest. Lucero v. Operation Rescue, 954 F.2d 624 (11th Cir.1992); Tally-Ho, Inc. v. Coast Community College District, 889 F.2d 1018 (11th Cir.1989). The plaintiffs have the burden of persuasion on all four preliminary injunctive standards. United States v. Jefferson County, 720 F.2d 1511 (11th Cir.1983). The court is always guided by the underlying premise that “a preliminary injunction is an extraordinary and drastic remedy.” Canal Authority v. Callaway, 489 F.2d 567, 573 (5th Cir.1974). In the free speech context, the questions of irreparable harm and likelihood of success on the merits are necessarily subsumed into a First Amendment inquiry. Gannett Satellite Information Network, Inc. v. Township of Pennsauken, 709 F.Supp. 530 (D.N.J.1989). If the City of Coral Gables is abridging First Amendment rights, Exito is likely to succeed on the merits. Additionally, it is well-settled that the loss of First Amendment freedoms for even minimal periods of time constitutes irreparable injury. Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976); Cate v. Oldham, 707 F.2d 1176 (11th Cir.1983). If the ordinance violates the First Amendment rights of Ex-ito and the public, the balance of equities will not rescue the defendants. Therefore, the issuance of a preliminary injunction in the context of free speech turns solely on whether the challenged ordinance violates the First Amendment. Prior restraint and procedural due process Initially, this Court must decide whether it is appropriate" }, { "docid": "3340801", "title": "", "text": "and uses bubbling devices to melt ice around its structures within the canals. The Marina complied with the safety requirements of Ordinance 239, although the open water restriction did not apply to Belle Maer because the Marina’s canals exceeded 110 feet in width. In 1996, the Township adopted Ordinance 303, an amendment to Ordinance 239, which removed the exception to the open water restriction for canals exceeding 110 feet in width. The Township contends that excessive bubbling had created hazardous conditions for Township residents using the frozen waterways. These conditions justified increasing the Ordinance’s safety requirements and expanding the open water restriction from “canals one hundred ten (110’) feet or less in width” to “any canal or waterway” in the Township. Ordinance 303 brought the Marina within the ambit of the open water restriction set forth in Ordinance 239. In response, Belle Maer filed a seven-count complaint, seeking, inter alia, a preliminary injunction to prevent the Township from enforcing the open water restriction against Belle Maer. At the outset, the parties stipulated to the entry of a temporary restraining order, enjoining enforcement of the Ordinance pending the conclusion of the proceedings before the court. At the close of discovery, the Township filed a partial motion for summary judgment as to Belle Maer’s federal preemption and vagueness claims, and Belle Maer responded with its own motion for summary judgment for declaratory and injunctive relief. After hearing oral argument concurrently on both motions, the district court ruled from the bench, granting the Township’s partial motion for summary judgment and denying Belle Maer’s motion for declaratory and in-junctive relief. The next day the parties stipulated to an order dismissing the remaining counts of the complaint. The order also stayed enforcement of the Ordinance pending the outcome of this appeal. Belle Maer timely filed the appeal before this court. We have jurisdiction under 28 U.S.C. § 1291 and review a decision granting summary judgment de novo. See Davis v. Sodexho, Cumberland College Cafeteria, 157 F.3d 460, 462 (6th Cir.1998). II. DISCUSSION Turning to the specific arguments presented on appeal, Belle Maer asserts that the" }, { "docid": "17207753", "title": "", "text": "displays above the first floor are distracting to drivers, and also may fall and injure pedestrians. (D.I. 85 at 7 (citing evidence); D.I. 85-1 at 17, 31) In addition, Defendants state that the excessive size of Plaintiffs displays blocks sidewalks and forces pedestrians to walk on the highway. (D.I. 85 at 7; D.I. 85-1 at 17, 31) Plaintiff has alleged that the Town is attempting to benefit his business competitors under the guise of safety and aesthetics. Plaintiff has cited no evidence to support his allegations. That Defendants consider displays of merchandise to be harmful to the general appearance of the Town is not “so unusual as to raise suspicions in itself.” Metromedia, 453 U.S. at 510, 101 S.Ct. 2882. Plaintiff cites Citizens United for Free Speech II v. Long Beach Township Board of Commissioners, 802 F.Supp. 1223 (D.C.N.J.1992), as support for his assertion that aesthetics alone is not sufficient to support regulations of commercial speech. However, the regulation challenged in that ease, restricting the display of “for rent” signs, was not content-neutral, given that “for sale” signs were not targeted. Here, the restrictions apply to all displays of merchandise, regardless of content. Finally, as to the fourth prong, Plaintiff provides insufficient evidence to support a finding that the Code is more extensive than needed to achieve its purposes. The Court concludes that there is no genuine issue of material fact as to whether Defendants’ regulation of displays violates Plaintiffs commercial free speech rights, as the Code provisions at issue advance substantial and legitimate government interests, are content-neutral, and are narrowly drawn. Accordingly, Plaintiffs motion for summary judgment will be denied, and Defendants’ cross-motion for summary judgment will be granted. B. Vagueness Plaintiff next challenges the Code as void for vagueness. A law is void for vagueness if it: “(1) ‘fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits;’ or (2) ‘authorizes or even encourages arbitrary and discriminatory enforcement.’ ” United States v. Stevens, 533 F.3d 218, 249 (3d Cir.2008) (quoting Hill v. Colorado, 530 U.S. 703, 732, 120 S.Ct. 2480, 147 L.Ed.2d" }, { "docid": "8978101", "title": "", "text": "service system. Every officer within plaintiffs class is provided with the protection and is equally restricted from campaigning for public office. Therefore, the court believes that plaintiff is not likely to succeed on the equal protection claim. C. Harm to the Defendant and the Public Interest The adverse effect upon the opposing party will be great if the court grants a preliminary injunction. Granting such relief Would also not be in the public interest. In deciding whether to grant injunctive relief, the court should consider whether issuing a preliminary injunction would cause greater harm to the other party. The defendant notes that its interest and the public interest are the same. This court agrees. Plaintiff contends that granting the injunction will not harm the defendant and therefore only a nominal bond should be required. The defendant contends that the issuance of a preliminary injunction will effectively undermine the interest of the township and the public in maintaining the integrity of the township’s police force. The appearance of impropriety with regard to the integrity of the administration of police protection is a compelling governmental interest. The favoritism and partisan support inherent in a campaign can create an atmosphere for the improper distribution of police services and inject political influences into the internal administration of the defendant’s police services. It is this appearance of impropriety that the statute in question is designed to protect against. The case law adequately establishes the validity of this interest. Thus, the defendant has a sufficient interest in avoiding the appearance of impropriety created by the activity in question. If this court were to grant injunctive relief, the very evils the statute is designed to protect against will be visited upon the defendant. Thus, the defendant will be irreparably injured and the public interest will not be served. For the reasons stated above, this court finds that plaintiff has not established imminent irreparable harm or a likelihood of success on the merits. Also, if the relief requested is granted, the harm to defendant and the public interest will be great. Therefore, the motion for emergency injunctive relief" }, { "docid": "16558988", "title": "", "text": "B. Irreparable Harm It is well-established that “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 2690, 49 L.Ed.2d 547 (1976); School District of Lancaster Manheim Township School District v. Lake Asbestos of Quebec, Ltd. (In re School Asbestos Litigation), 842 F.2d 671, 679 (3d Cir.1988). In Hohe v. Casey, 868 F.2d 69 (3d Cir.), cert. denied, 493 U.S. 848, 110 S.Ct. 144, 107 L.Ed.2d 102 (1989), the Third Circuit explained, however, that “the assertion of First Amendment rights does not automatically require a finding of irreparable injury.” Id. at 72-73. The court explained: Rather the plaintiffs must show “a chilling effect on free expression.” It is “purposeful unconstitutional [government] suppression of speech [which] constitutes irreparable harm for preliminary injunction purposes.” Accordingly, it is the “direct penalization, as opposed to incidental inhibition, of First Amendment rights [which] constitutes irreparable injury.” Id. at 73 (citations omitted). Here, plaintiffs have demonstrated a chilling effect resulting from threatened prosecution of plaintiffs pursuant to the Act. See Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965); see also Citizens United for Free Speech II v. Long Beach Township Bd. of Comm’rs, 802 F.Supp. 1223, 1237-38 (D.N.J.1992) (distinguishing Hohe). In other words, this case involves “direct penalization” of plaintiffs’ First Amendment rights, rather than an “incidental inhibition.” I therefore find that under the circumstances of this case, plaintiffs would suffer irreparable harm if the preliminary injunction were not issued. See Moser, 811 F.Supp. 541, 546 (D.Or.1992). C. Balancing of Public and Private Interests The final two elements of the preliminary injunction analysis, the balance of harms and the public interest, also support issuance of a preliminary injunction. The only harm that would result from a preliminary injunction is that citizens of New Jersey would continue to receive prerecorded commercial telephone advertisements during the pendency of the litigation. As noted above, the ban would only eliminate less than three percent of all telemarketing calls. Therefore, the hardship to the state and the public interest is" }, { "docid": "17207752", "title": "", "text": "also challenges Defendants on the third prong of the test, contending that the Code does not directly advance the asserted government interest. The Supreme Court has shown great deference to local lawmakers in regards to safety issues regarding signs where there is nothing to suggest that lawmakers’ judgments were unreasonable. See Metromedia, 453 U.S. at 509, 101 S.Ct. 2882 (holding that Court should not trespass on local problems without showing that regulations are manifestly unreasonable, despite meager record of link between traffic safety problems and billboards). The same reasoning supports the Town’s claims regarding aesthetics. The Supreme Court in Me-tromedia noted that aesthetic judgments are “necessarily subjective,” and “must be carefully scrutinized to determine if they are only a public rationalization of an impermissible purpose.” Metromedia, 453 U.S. at 510, 101 S.Ct. 2882. Plaintiff argues there is little or no evidence ' supporting Dewey Beach’s claim that banning displays above the first story of a building or restricting the size of displays on outside private property increases safety. (D.I. 86 at 1) Defendants respond that displays above the first floor are distracting to drivers, and also may fall and injure pedestrians. (D.I. 85 at 7 (citing evidence); D.I. 85-1 at 17, 31) In addition, Defendants state that the excessive size of Plaintiffs displays blocks sidewalks and forces pedestrians to walk on the highway. (D.I. 85 at 7; D.I. 85-1 at 17, 31) Plaintiff has alleged that the Town is attempting to benefit his business competitors under the guise of safety and aesthetics. Plaintiff has cited no evidence to support his allegations. That Defendants consider displays of merchandise to be harmful to the general appearance of the Town is not “so unusual as to raise suspicions in itself.” Metromedia, 453 U.S. at 510, 101 S.Ct. 2882. Plaintiff cites Citizens United for Free Speech II v. Long Beach Township Board of Commissioners, 802 F.Supp. 1223 (D.C.N.J.1992), as support for his assertion that aesthetics alone is not sufficient to support regulations of commercial speech. However, the regulation challenged in that ease, restricting the display of “for rent” signs, was not content-neutral, given that" }, { "docid": "10692665", "title": "", "text": "Cir.1981)). III. Preliminary Injunction Analysis Injunctive relief is the most common form of remedy sought by citizens suing federal agencies in environmental cases. In such cases, courts have traditionally exercised considerable equitable discretion in deciding whether to issue injunctions. See e.g., Citizens for Environmental Quality v. United States, 731 F.Supp. 970, 996-997 (D.Colo. 1989) (“The issuance of an injunction is governed by traditional principles of equity. [ ] The granting or refusing of injunctive relief rests in the sound discretion of the court.”) (citing: Stringer v. United States, 471 F.2d 381, 384 (5th Cir.), cert. denied, 412 U.S. 943, 93 S.Ct. 2775, 37 L.Ed.2d 404 (1973); and Goldammer v. Fay, 326 F.2d 268 (10th Cir. 1964), for respective propositions). In purely private-party civil suits, courts have long balanced the claims and potential injuries (harms) to each party before deciding whether to enjoin challenged conduct. Such balancing of claims and harms remains appropriate in citizen suits against federal agencies on allegations of the agencies’ non-compliance with unambiguous statutory prescriptions. But in this latter area, traditional injunctive relief analysis also gives rise to separation of powers and checks and balances considerations. See generally Michael D. Axline, Constitutional Implications of Injunctive Relief Against Federal Agencies in Environmental Cases, 12 Haev. Envtl.L.Rev. 1, 1 (1988). Under the traditional framework of preliminary injunction analysis, Plaintiffs must establish four factors in order to obtain relief: (1) a substantial likelihood of success on the merits; (2) a substantial threat of irreparable harm absent an injunction; (3) that the irreparable harm threatened is greater than that caused by the injunction; and (4) that the public interest would be served by the injunction. See generally Sierra Club v. Lyng, 694 F.Supp. 1260, 1277 (E.D.Tex.1988). If irreparable injury to the environment is sufficiently likely, the balance of harms will usually favor the issuance of an injunction to protect the environment. Amoco Production Co. v. Gambell, 480 U.S. 531, 542, 107 S.Ct. 1396, 1402, 94 L.Ed.2d 542 (1986) (White, J.). A. Plaintiffs Enjoy a Substantial Likelihood of Success on Their NFMA and NEPA Claims The Court is convinced that Plaintiffs are" } ]

[ { "docid": "23352241", "title": "", "text": "although Dr. Hill allegedly would not allow Plaintiff to represent the Hispanic student, Plaintiff did discuss the incident with the Chancellor’s Affirmative Action Advisory Committee. Plaintiffs evidence is insufficient to create a jury question that his stressful working conditions were inflicted upon him because of racial animus. We note that, although Plaintiff alleges that his hostile work environment began when Dr. Hill was hired as CFME director, much of his evidence of Dr. Hill’s alleged racial animus occurred before Dr. Hill was associated with the CFME office. We, therefore, affirm summary judgment on Plaintiffs hostile work environment claim. Plaintiff also appeals the district court’s entry of summary judgment on his disparate treatment claim. The district court found that Plaintiff met his initial burden of establishing a prima facie case of racial discrimination by showing (1) that he is a member of a racial minority, (2) that he suffered an adverse employment action, and (3) that similarly situated employees were treated differently. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Once an employee carries his burden of demonstrating a prima facie case, the burden of production shifts to the employer to demonstrate “some legitimate, nondiscriminatory reason” for the adverse employment action. Id.; see Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 254-55, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). If the employer offers a nondiseriminatory reason, the burden shifts back to the employee to show that there is a genuine dispute of material fact as to whether the employer’s reason for the challenged action is pretextual and unworthy of belief. See Burdine, 450 U.S. at 256, 101 S.Ct. 1089; Ingels v. Thiokol Corp., 42 F.3d 616, 622 (10th Cir.1994). A reason is not 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). The. employer is entitled to summary judgment if the employee “could not offer evidence tending to show the" } ]

[ { "docid": "18164119", "title": "", "text": "situated non-minority employees. To establish a prima facie compensation discrimination claim, plaintiffs must show: (1) that they are members of a protected class; (2) they were paid less or otherwise treated disparately than similarly situated non-members of their protected class; and (3) evidence of a discriminatory animus. See Belfi v. Prendergast, 191 F.3d 129, 139 (2d Cir.1999); Cruse v. G & J USA Publ’g, 96 F.Supp.2d 320, 326 (S.D.N.Y.2000). Plaintiffs fail to satisfy prong two and three of the prima facie test. (i) Salaries First, Plaintiffs fail to show that they were treated disparately in pay from similarly situated Caucasian co-workers. Indeed, neither Plaintiff could identify by name a single similarly situated employee who was paid more or treated differently. The record indicates that during Lumhoo’s deposition, he stated that he had no knowledge of what others were paid. (Morway Aff., Exh. B at 24-25). In addition, when asked in an interrogatory to identify the higher paid Causcasion employee who was unidentified in the Complaint, Plaintiffs stated they were “the Caucasian employees at the Valley Stream store whose full names and identities are not known to Plaintiffs.” (Morway Aff., Exh'. O at 3-4). Next, Plaintiffs’ claim that a program of pay adjustments instituted in the Valley Stream store is proof of disparate pay is unavailing because the record indicates (i) the adjustment program commenced prior to either Plaintiffs’ employment at the Valley Stream store and did not affect Plaintiffs; (ii) during the relevant period, Lum-hoo was the third highest paid of the eight drivers employed at the Valley Stream store; and (iii) the administrative store manager Nichols, who set Plaintiffs’ salaries and completed the adjustment pro gram testified that the disparity was not limited to minority employees and that certain African-Americans were highly paid, (Morway Aff., Exh. E at 112). Finally, Plaintiffs’ reliance on the testimony of co-worker Dadaille to prove that white employees were paid more than minority employees is misplaced. Dadaille was unable to identify any white employee similarly situated to Plaintiffs who were paid more, and when questioned, Dadaille testified that his knowledge of the alleged disparity" }, { "docid": "15366188", "title": "", "text": "direct evidence of any discriminatory intent on behalf of the Eye Center; thus, her claim of discriminatory treatment on the basis of her gender rests purely on circumstantial evidence and must be analyzed under the McDonnell Douglas-Burdine framework. Under this framework, a plaintiff can generally establish a prima facie case of unlawful discrimination under Title VII by showing that: (1) she is a member of a protected class; (2) she was subjected to an adverse employment action by her employer; (3) she was qualified for the job in question, and (4) her employer treated similarly situated employees outside her protected classification (ie. those of a different sex) more favorably than it treated her. See McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817; see also Wright v. Southland Corp., 187 F.3d 1287, 1290 (11th Cir.1999); Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir.1997). Defendants do not dispute that Plaintiff can fulfill the first three elements of a prima facie case. Assuming that Plaintiff were able to establish that she was subjected to an adverse job action because she was constructively discharged, which the Court already has found that she cannot, see Discussion supra at 49-54, the Court finds that she cannot show that a similarly situated male employee was treated more favorably than she was, and her gender discrimination claim fails for that reason as well. When a plaintiff attempts to establish a claim of discrimination by pointing to more favorable treatment toward other employees, the plaintiff first must identify an employee outside of her protected class to which she is “similarly situated in all relevant respects.” Holifield, 115 F.3d at 1562; see also Knight v. Baptist Hospital of Miami, 330 F.3d 1313, 1316 (11th Cir.2003); Silvera v. Orange County School Bd., 244 F.3d 1253, 1259 (11th Cir.2001). If a plaintiff fails to show the existence of a similarly situated employee, summary judgment is appropriate when no other evidence of discrimination is present. Holifield, 115 F.3d at 1562. In addition, the plaintiff must point to evidence that the identified comparator committed the same or similar infractions as the plaintiff," }, { "docid": "15139039", "title": "", "text": "conditions, or privileges” of her employment. See 42 U.S.C. § 2000e-2(a)(l). “A plaintiff may prove such disparate treatment by showing that she was treated less favorably than similarly situated employees who are not in the plaintiffs protected class.” Stanback v. Best Diversified Products, Inc., 180 F.3d 903, 909-10 (8th Cir.1999); see also Barge v. Anheuser-Busch, Inc., 87 F.3d 256, 259-60 (8th Cir.1996). To establish a prima facie case, a plaintiff must demonstrate that she is a member of a protected class and that she was^ treated differently because of her race [or sex] than similarly situated employees who were not members of a protected class. Stanback v. Best Diversified Products, Inc., 180 F.3d at 909-10 (construing prima facie elements for hostile environment based upon racial harassment). To succeed against a motion for summary judgment, a plaintiff must produce “ ‘spécific tangible evidence’ showing a disparity in the treatment of similarly situated employees.” Stanback, at 909-10 (citing Rose-Maston v. NME Hosps., Inc., 133 F.3d 1104, 1109 n. 4 (8th Cir.1998)). The plaintiff has the burden of proving that she and the disparately treated employees (nonmembers of a protected class) were similarly situated in all relevant respects. Ward v. Procter & Gamble Paper Products Co., 111 F.3d 558, 560 (8th Cir.1997); Harvey v. Anheuser-Busch, 38 F.3d 968, 972 (8th Cir.1994); Jones v. Frank, 973 F.2d 673, 676 (8th Cir.1992). “Employees are similarly situated when they are involved in or accused of the same offense and are disciplined in different ways.” Harvey, 38 F.3d at 972. Plaintiff has failed to make any showing that she was treated differently than any similarly situated employee who was not a member of her protected class. She does not allege sufficient facts to demonstrate that she was treated differently in any respect to any male at Ludlow-Saylor. Plaintiff alleges two instances to support this claim. First, Plaintiff suggests that her assignment to the “brake” position on the first shift was indicative of disparate treatment, She alleges she was required to take this position and that it required harder work that some positions. Plaintiff readily testified, however, that" }, { "docid": "23628717", "title": "", "text": "inappropriately held John H. Bryan (“Bryan”) to a higher threshold than a plaintiff is required to meet to establish a prima facie case of employment discrimination sufficient to defeat summary judgment. Bryan has shown sufficient evidence in the record to meet the proper threshold. Accordingly, I respectfully dissent from the majority’s affirmance of the district court’s grant of summary judgment to McKinsey. & Company, Inc. (“McKinsey”), and its dismissal of Bryan’s employment discrimination suit. I agree that, in order to make a prima facie case, a plaintiff must establish that he (1) is a member of a protected class; (2) was qualified for the position; (3) was subject to an adverse employment action; and (4) was either replaced by someone outside the protected class, or, that other similarly situated employees .outside the protected class were treated more favorably, in other words the plaintiff received disparate treatment. Okoye v. Univ. of Texas Houston Health Sci. Ctr., 245 F.3d 507, 512 (5th Cir.2001). McKinsey concedes that Bryan has established three of the elements of a prima facie ease. It asserts, however, that Bryan has failed to show the fourth element, that he was either replaced by someone outside the protected class or that similarly situated non-protected employees were treated more favorably. Bryan does not contend that he was replaced as an Associate Principal (“AP”) by someone outside the protected class'. Instead, he asserts that McKinsey employees similarly situated were treated more favorably than he in that they were retained after he was terminated, or if they were fired along with him, it was only after receiving more feedback, guidance and longer tenures. McKinsey points to the fact that it terminated white APs around the time Bryan was terminated in arguing that Bryan has failed to show disparate treatment between himself and similarly situated white employees. While on its face that may appear to preclude a finding of disparate treatment, the inquiry does not end there. Simply showing that employees of a non-protected class were fired along with the plaintiff will not necessarily result in a finding that no disparate treatment existed. For" }, { "docid": "4847339", "title": "", "text": "Court will analyze his claim under McDonnell Douglas. Under McDonnell Douglas, a plaintiff must first make out a prima facie case of discrimination by showing that (1) he is a member of a protected group; (2) he was subject to an adverse employment action; (3) he was qualified for the position and satisfactorily performed his job; and (4) similarly-situated non-protected employees were treated more favorably. See Russell v. Univ. of Toledo, 537 F.3d 596, 604 (6th Cir.2008). In this case, it is undisputed that Plaintiff, an African-American, was a member of a protected class and that he satisfactorily performed his job while employed by Hoops. Plaintiff asserts that the following constitute “adverse employment action” in violation of Title VII:(1) Defendant failed to compensate Plaintiff for working through lunch breaks, (2) Plaintiff was assigned to perform menial tasks outside of his job description, (3) Plaintiff was given inaccurate “write-ups or reprimands,” (4) Plaintiff was denied payment for classes or books needed to prepare for licensing tests, (5) Plaintiff was required to have certain professional licenses that other employees were not required to maintain, and (6) Defendant terminated Plaintiffs employment. The Court need not address whether the aforementioned conduct constitutes “adverse employment action,” however, because Plaintiff has failed to identify any similarly-situated non-protected employees who were treated more favorably than Plaintiff. In his response to Defendant’s Motion for Summary Judgment Plaintiffs sole contention in support of a claim for race discrimination relies on the theory that he was subject to a racially hostile work environment. (See Def.’s Resp. to Pl.’s Mot. for Summ. J. at 8-12.) As discussed supra, the Court has already found that Plaintiffs hostile work environment claim fails as a matter of law. Plaintiff must therefore satisfy his burden of identifying similarly-situated non-protected employees who were treated more favorably than Plaintiff to proceed under a theory of disparate treatment. Having not met this burden, Defendant’s Motion for Summary Judgment is GRANTED as it relates to Plaintiffs claim of disparate treatment race discrimination. C. Title VII retaliation claim “Title VII forbids an employer from ‘discriminat[ing] against any of his employees" }, { "docid": "22045680", "title": "", "text": "protected group.” A Title VII plaintiff supplies this indispensable comparative evidence at the pri-ma facie stage through the last prong of the McDonnell Douglas test ... by identifying those individuals who are allegedly treated differently. This explains the McDonnell Douglas Court’s articulation of this factor as requiring a showing “that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications.” Proof that a Title VII plaintiff belongs to a racial minority, that he was qualified for his position, and that he was fired, without more, simply fails to present evidence that the plaintiff “was rejected under circumstances which give rise to an inference of unlawful discrimination.” We do not mean to suggest that a Title VII plaintiff seeking to prove disparate treatment must always present evidence establishing the last prong of the McDonnell Douglas prima facie test. We do note, however, that in eases where courts have found that a Title VII plaintiff presented a prima facie case without proof that the employer continued to solicit applications, some additional evidence tended to establish the inference of discrimination. In particular, the plaintiffs were able to point to other individuals who were more favorably treated. Shah, 816 F.2d at 268-69 (citations omitted). Therefore, our opinion in Shah made clear that showing that similarly situated non-protected employees were treated more favorably than the plaintiff is not a requirement but rather an alternative to satisfying the fourth element of the prima facie ease — a plaintiff may satisfy the fourth element by showing either that the plaintiff was replaced by a person outside of the protected class or that similarly situated non-protected employees were treated more favorably than the plaintiff. Moreover, in the paragraph preceding the language relied on by the district court, we stated: “As earlier noted, plaintiffs failure to show that GE attempted to fill his vacated position is not fatal if he can establish other evidence raising an inference of disparate treatment. For example, a plaintiff can establish a prima facie case by presenting evidence that similarly situated non-minority employees were not" }, { "docid": "14075297", "title": "", "text": "is presented on whether or not loss of the “bonus” earned pursuant to the Employee Incentive Program constituted an “adverse employment action.” See Anderson, 477 U.S. at 248, 106 S.Ct. 2505 (the question is whether “a reasonable jury could return a verdict for the nonmoving party”). Pepsi is not entitled to summary judgment on Dunbar’s claim on the ground that he cannot show any “adverse employment action.” 3. Treatment of similarly situated persons As this court explained above, because disparate treatment is the only kind of race discrimination that Dunbar now asserts, to complete his prima facie case, he must show that “non-members of [his] class, e.g., white employees, were treated differently.” Jones, 336 F.3d at 691; Scott, 180 F.3d at 917-18 (such a “strong showing” is required when disparate treatment is the only form of discrimination asserted by the plaintiff). Pepsi contends that, although Van Syoc supervised all of the loaders, there is no evidence that Van Syoc treated Dunbar differently than he treated other warehouse employees who were not African-American. Dunbar disagrees, pointing to evidence that Lee was not disciplined in the same way that he was even though Lee admitted the loading error for which Dunbar was disciplined, and other non-African-American employees received bonuses, even though they had also made occasional loading errors. As this court has explained, when the “strong showing” is required, either for purposes of a prima facie case or a showing of “pretext,” the plaintiff must show that he was “ ‘similarly situated in all relevant respects’ to a non-member of the protected class who was more favorably treated.” See Joens v. John Morrell & Co., 243 F.Supp.2d 920, 948 (N.D.Iowa 2003). More specifically, In order to determine whether a plaintiff has shown that the employees involved were “similarly situated,” the court considers, for example, whether the employees are involved in or accused of the same or similar conduct and are disciplined in different ways. Cronquist [v. City of Minneapolis], 237 F.3d [920,] 927 [ (8th Cir.2001) ]; Williams v. Ford Motor Co., 14 F.3d 1305, 1309 (8th Cir.1994); Boner v. Board of" }, { "docid": "5440624", "title": "", "text": "each element of his prima facie case of discrimination. See Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir.1995). The Tenth Circuit Court of Appeals has set forth two sets of elements to establish a prima facie case of discriminatory discharge. Compare Aramburu v. Boeing Co., 112 F.3d 1398, 1403 (10th Cir.1997) (listing the elements as (1) member of a protected class; (2) discharged for violating a work rule; and (3) that similarly situated non-minority employees were treated differently) with Martin v. Nannie & The Newborns, Inc., 3 F.3d 1410, 1417 (10th Cir.1993) (listing the elements as (1) member of a protected class; (2) qualified and satisfactorily performing job; and (3) terminated under circumstances giving rise to an inference of discrimination). Martin appears to better state the elements, when similarly situated persons are not present. See Rawlins-Roa v. United Way of Wyandotte County, Inc., 977 F.Supp. 1101, 1105 n. 2 (D.Kan.1997) (finding the Martin test “to be the correct standard, particularly because ‘similarly situated persons’ are not present in every case of discrimination”). In this case no party presents evidence of any non-minority similarly situated to plaintiff being treated differently. He was a probationary, supervisory employee during his employment. The court will apply the three-part test set forth in Martin to determine whether plaintiff has established a prima facie case for a wrongful termination claim. If he has established his prima facie case, the burden shifts to defendant to offer a legitimate, nondiscriminatory reason for its employment decision. Randle, 69 F.3d at 451 (citing McDonnell Douglas, 411 U.S. at 802-03, 93 S.Ct. 1817; EEOC v. Flasher Co., 986 F.2d 1312, 1317-19 (10th Cir.1992)). If defendant presents a nondiscriminatory reason for its actions, the burden then reverts to plaintiff “to show that there is a genuine dispute of material fact as to whether the employer’s proffered reason for the challenged action is pre-textual — i.e., unworthy of belief.” Id. (citing Ingels v. Thiokol Corp., 42 F.3d 616, 622 (10th Cir.1994)). If plaintiff proffers such evidence, the motion for summary judgment must be denied. Id. “At the summary judgment stage," }, { "docid": "4847340", "title": "", "text": "other employees were not required to maintain, and (6) Defendant terminated Plaintiffs employment. The Court need not address whether the aforementioned conduct constitutes “adverse employment action,” however, because Plaintiff has failed to identify any similarly-situated non-protected employees who were treated more favorably than Plaintiff. In his response to Defendant’s Motion for Summary Judgment Plaintiffs sole contention in support of a claim for race discrimination relies on the theory that he was subject to a racially hostile work environment. (See Def.’s Resp. to Pl.’s Mot. for Summ. J. at 8-12.) As discussed supra, the Court has already found that Plaintiffs hostile work environment claim fails as a matter of law. Plaintiff must therefore satisfy his burden of identifying similarly-situated non-protected employees who were treated more favorably than Plaintiff to proceed under a theory of disparate treatment. Having not met this burden, Defendant’s Motion for Summary Judgment is GRANTED as it relates to Plaintiffs claim of disparate treatment race discrimination. C. Title VII retaliation claim “Title VII forbids an employer from ‘discriminat[ing] against any of his employees ... because [the employee] has opposed any practice made an unlawful employment practice by [Title VII] [the so-called ‘opposition clause’], or because [the employee] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII] [the so-called ‘participation clause’].’ ” Niswander v. The Cincinnati Ins. Co., 529 F.3d 714, 719-20 (6th Cir. 2008) (citing 42 U.S.C. § 2000e-3(a)) (alterations in original). Unlawful employment practices under Title VII include any actions taken on the basis of race, color, religion, sex, or national origin that “discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment.” Id. (citing 42 U.S.C. § 2000e-2). In the absence of direct evidence of retaliation, courts analyze Title VII retaliation claims at the summary judgment stage using the McDonnell Douglas burden-shifting framework. Imwalle v. Reliance Med. Prods., Inc., 515 F.3d 531, 544 (6th Cir.2008). Under this framework, the plaintiff has the initial burden to establish a prima facie case of retaliation by showing: (1) he engaged in a protected" }, { "docid": "18164118", "title": "", "text": "the DST class,” Lumhoo Dep. at 201, fail to bolster Plaintiffs’ failure to promote claims or give rise to an inference that defendants’ promotion policies had a dispa rate impact. See Lawson v. Getty Terminals Corp., 866 F.Supp. 793, 802-03 (S.D.N.Y.1994); Bitter v. Chase Manhattan Bank, 1983 WL 610, at *6 (S.D.N.Y. Dec.7,1983) (“plaintiffs statistical evidence does not bolster his promotion discrimination claim because plaintiff does not compare himself to individuals who have his education, experience or job level”). Finally, Plaintiffs’ claim that whites were disproportionately promoted over blacks based on another non-management employee’s belief is insufficient to create a genuine issue of material fact. “Allegations of disparate treatment made without personal knowledge and unsupported by admissible evidence do not satisfy even the minimal burden which a plaintiff faces at the prima facie stage of proceedings.” Wang v. N.Y.C. Dep’t of Finance, 1999 WL 529550 *14 (E.D.N.Y. July 21, 1999), aff'd 216 F.3d 1074 (2d Cir.2000) (b) Compensation Plaintiffs also claim that their compensation, including their salaries, raises and/or bonuses, was not equal to similarly situated non-minority employees. To establish a prima facie compensation discrimination claim, plaintiffs must show: (1) that they are members of a protected class; (2) they were paid less or otherwise treated disparately than similarly situated non-members of their protected class; and (3) evidence of a discriminatory animus. See Belfi v. Prendergast, 191 F.3d 129, 139 (2d Cir.1999); Cruse v. G & J USA Publ’g, 96 F.Supp.2d 320, 326 (S.D.N.Y.2000). Plaintiffs fail to satisfy prong two and three of the prima facie test. (i) Salaries First, Plaintiffs fail to show that they were treated disparately in pay from similarly situated Caucasian co-workers. Indeed, neither Plaintiff could identify by name a single similarly situated employee who was paid more or treated differently. The record indicates that during Lumhoo’s deposition, he stated that he had no knowledge of what others were paid. (Morway Aff., Exh. B at 24-25). In addition, when asked in an interrogatory to identify the higher paid Causcasion employee who was unidentified in the Complaint, Plaintiffs stated they were “the Caucasian employees at the Valley" }, { "docid": "1790552", "title": "", "text": "you know, in the facility there. Q. Do you know if any. blacks ever complained about that? A. If they did, it was just among, you know. It’s nothing out loud or nothing like that. Just talking in general. (Id. at 116-17). Defendant argues that it is entitled to summary judgment as to plaintiffs additional claims because of her failure to establish a prima, facie case. Specifically, defendant argues that “[pjlaintiff cannot establish that employees outside her protected class were treated more favorably than her in the terms and conditions of employment.” (Defendant’s Brief, p. 12). “As part of the Title VII plaintiffs pri-ma facie case, the plaintiff must show that h[er] employer treated similarly situated employees outside h[er] classification more favorably than herself. To .make a com parison of the plaintiffs treatment to that of non-minority employees, the plaintiff must show that [s]he and the employees are similarly situated in all relevant respects .... If a plaintiff fails to show the existence of a similarly situated employee, summary judgment is appropriate where no other evidence of discrimination is present.” Holifield, 115 F.3d at 1562. Plaintiff does not respond to defendant’s argument that she has failed to establish a prima facie case with respect to her additional claims, and she has not produced evidence of any employee outside plaintiffs protected class and similarly situated to plaintiff who was treated more favorably with regard to investigation and discipline, continuing education, or other terms and conditions of employment. The court has addressed plaintiffs only identified promotion claim above, and has found that defendant is entitled to summary judgment on that claim. “Having failed to meet her burden of proving that [she] was similarly situated to a more favorably treated employee, [plaintiff] has not established a prima facie case.” Holifield, 115 F.3d at 1562. Thus, defendant is entitled to summary judgment on plaintiffs additional claims of discrimination. CONCLUSION For the foregoing reasons, it is ORDERED that defendant’s motion for summary judgment is GRANTED, and this action is DISMISSED. . As it is required to do, the court has viewed the evidence presented on" }, { "docid": "23622934", "title": "", "text": "evidence that (1) she is a member of a protected class; (2) she suffered an adverse action at the hands of the defendants in her pursuit of her education; (3) she was qualified to continue in her pursuit of her education; and (4) she was treated differently from similarly situated students who are not members of the protected class. See Mitchell, 964 F.2d at 582 (noting that a plaintiff may substitute for the fourth element in the typical McDonnell Douglas framework evidence that similarly situated individuals outside the protected class received better treatment than he). Even assuming that Ms. Bell could meet the third element of the prima facie case, she has come forward with not even a scintilla of evidence of the fourth, namely, that the defendants treated any similarly situated non-minority student differently from the way they treated Ms. Bell with regard to any aspect of her relationship with the Medical College. The district court correctly held that without such evidence, Ms. Bell had failed to make out a prima facie case of discrimination on the basis of race. Ms. Bell argues before us that she met her burden by presenting her deposition testimony. According to Ms. Bell, she testified that she knew Caucasian students were permitted to retake exams, but she was not given that opportunity. Ms. Bell declares, [i]n essence, the trial Court requires that Plaintiff identify by name an individual who received more favorable treatment. This is not required under the law. Plaintiff testified that she was aware that Caucasian students were treated differently. This is sufficient evidence of disparate treatment.... Plaintiff has indeed come forth with sufficient evidence to demonstrate that the students who were allowed to retake exams had the most important characteristic, namely, they were Caucasian. The trial Court requires too much when it asks the Plaintiff to identify the similarly situated students by name, etc. Not surprisingly, Ms. Bell cites no authority for this proposition. Merely reading Fed. R. Civ. Pro. 56(e) would disabuse her of this view: When a motion for summary judgment is made and supported as provided in" }, { "docid": "22123576", "title": "", "text": "may affirm the grant of summary judgment for reasons other than those used by the district court as long as they are adequately supported by the record. Id. III. Claim for Wrongful Discharge on the Basis of Ancestry Aramburu contends that he was discharged because of his Mexican-American ancestry, while Boeing and Whitesell contend he was discharged for failing to maintain satisfactory attendance. To establish a prima facie case on a claim of discriminatory discharge, where the plaintiff was discharged for the purported violation of a work rule, the plaintiff must show that (1) he is a member of a protected class, (2) that he was discharged for violating a work rule, and (3) that similarly situated non-minority employees were treated differently. EEOC v. Flasher Co., Inc., 986 F.2d 1312, 1316 (10th Cir.1992). If the plaintiff establishes a prima facie case, the defendant must articulate, and support with some evidence, a legitimate, nondiscriminatory reason for the discharge. Flasher, 986 F.2d at 1316; see also St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506-07, 113 S.Ct. 2742, 2746-47, 125 L.Ed.2d 407 (1993). If the defendant meets this burden, the plaintiff must then present evidence raising a genuine issue that his termination was the result of his ancestry or that the reason offered by Boeing and Whitesell was a mere pretext. See Corneveaux v. Cuna Mutual Ins. Group, 76 F.3d 1498, 1503 (10th Cir.1996); Flasher, 986 F.2d at 1316. At the summary judgment stage, if the plaintiff can show a prima facie case of discrimination and present evidence that the employer’s proffered nondiseriminatory reason is a mere pretext, the case should go to the factfinder. Jones v. Unisys Corp., 54 F.3d 624, 630 (10th Cir.1995). The district court ruled that Aramburu failed to present evidence demonstrating the existence of a genuine issue of material fact regarding the reason proffered by Boeing and Whitesell for his discharge, excessive absenteeism, or that Aramburu was treated differently in regards to attendance because of his ancestry. The district court also ruled that Aramburu failed to show that he was similarly situated to fellow employees whom" }, { "docid": "2535247", "title": "", "text": "she filed her response to defendant’s motion, Magistrate Judge Reid, in the meantime, has granted in part and denied in part plaintiffs motion to compel. This ruling was issued more than two weeks ago. Nonetheless, plaintiff has not made any efforts to supplement her papers or seek additional time to respond to defendant’s motion with respect to the pay discrimination claim. Finally, there is simply no evidence in the record before the court (nor does plaintiff even argue) that similarly situated non-African-American employees were compensated differently than plaintiff. Accordingly, plaintiff has failed to establish a prima facie case of disparate treatment. See Trujillo v. University of Colorado Health Sciences Center, 157 F.3d 1211, 1214 (10th Cir.1998) (to establish prima facie case of disparate treatment, plaintiff must show, inter alia, that similarly situated employees were treated differently). For the foregoing reasons, the court grants defendant’s motion for summary judgment on plaintiffs pay discrimination claim. IT IS THEREFORE ORDERED BY THE COURT THAT defendant’s motion for summary judgment (doc. # 114) is granted in part and denied in part. Defendant’s motion is granted with respect to plaintiffs racial harassment and pay discrimination claims. Defendant’s motion is also granted with respect plaintiffs failure-to-promote claims arising prior to the applicable limitations period. Defendant’s motion is denied with respect to plaintiffs failure-to-promote claims that were filed within the limitations period. IT IS SO ORDERED. . In accordance with the applicable summary judgment standard, the facts are uncontro-verted or related in the light most favorable to plaintiff. . Plaintiff initially asserted these claims under both Title VII and § 1981. In her papers, however, she concedes that she failed to exhaust her administrative remedies with respect to her hostile work environment and pay discrimination claims. Thus, only plaintiff’s failure-to-promote claims are properly asserted under both Tille VII and § 1981. Her remaining claims are asserted under § 1981 only. In any event, the court applies the same standards and burdens to plaintiffs claims regardless of whether they arise under Title VII or § 1981. See Aramburu v. Boeing Co., 112 F.3d 1398, 1403 n. 3 (10th" }, { "docid": "22681951", "title": "", "text": "younger person. Therefore, the District Court held that Plaintiff failed to establish a prima facie case of either race or age discrimination. Although the District Judge found no prima facie case had been established by Plaintiff because of the lack of the fourth “replaced-by-a-‘non-protected’-person” element of the McDonnell Douglas/Burdine criteria, a plaintiff can also make out a prima facie case by showing, in addition to the first three elements, that “a comparable non-protected person was treated better”. As the Sixth Circuit has frequently phrased the requirements of a prima facie claim of disparate treatment using such a “comparable non-protected person was treated better” element as one of the requisites, the plaintiff must produce evidence which at a minimum establishes (1) that he was a member of a protected class and (2) that for the same or similar conduct he was treated differently than similarly-situated non-minority employees. See e.g., Davis v. Monsanto Chemical Co., 858 F.2d 345 (6th Cir.1988), cert. denied, 490 U.S. 1110, 109 S.Ct. 3166, 104 L.Ed.2d 1028 (1989); Long v. Ford Motor Co., 496 F.2d 500 (6th Cir. 1974). It appears that it is under this formula that Plaintiff here attempted to make out her case. She alleges that one non-minority Hospital employee, Karen Lind, had a poor attendance record. She also alleges that, in 1987, Bobbie Walley, an employee in charge of filing, cursed at her team leader. But neither Lind nor Walley was fired. According to Plaintiff, these “facts” establish a prima facie case that non-minority employees, guilty of conduct of “comparable seriousness” to the conduct for which she was fired, received more lenient treatment. However, as the facts of this case demonstrate, Plaintiff’s allegations regarding other employees not being fired for different, but what she subjectively believes to be more serious, misconduct simply does not satisfy that element either. It is fundamental that to make a comparison of a discrimination plaintiff's treatment to that of non-minority employees, the plaintiff must show that the “comparables” are similarly-situated in all respects. Stotts v. Memphis Fire Department, 858 F.2d 289 (6th Cir.1988). Thus, to be deemed “similarly-situated”, the" }, { "docid": "22123578", "title": "", "text": "he contends were differently treated. A Prima Facie Case of Discrimination In this case, we assume without deciding that Aramburu has met the elements of his prima facie case under Flasher. E.g., Morgan v. Hilti, Inc., 108 F.3d 1319, 1324 (10th Cir.1997) (assuming without deciding that ADA plaintiff had met prima facie case requirements); Jones, 54 F.3d at 630 (same). B. Legitimate, Nondiseriminatory Reason The record contains evidence that Aramburu was discharged for failing to maintain satisfactory attendance. This reason is legitimate and nondiseriminatory. See Morgan, 108 F.3d at 1324. As Boeing and Whitesell have met their burden to articulate and produce some evidence that Aramburu was discharged for a facially legitimate and nondiseriminatory reason, “the presumption of discrimination established by the prima facie showing simply drops out of the picture.” See Jones, 54 F.3d at 630 (internal quotation omitted). C. Pretext We turn to the dispositive inquiry on this claim, the requirement that Aramburu present evidence raising a genuine issue that his termination was the result of his ancestry or that the reason offered by Boeing and Whitesell was a mere pretext. See Jones, 54 F.3d at 630; Flasher, 986 F.2d at 1316. In this connection, Aramburu contends that similarly situated non-minority employees were not discharged for violating rules of comparable seriousness. He also contends that the evidence surrounding his discharge must be viewed in his favor under the spoliation doctrine. Lastly, he contends that he has presented diréct evidence that Whitesell harbored a discriminatory animus against Mexican-Americans. We reject each contention in turn. 1. Differential Treatment of Similarly Situated Non-Minority Employees To assert a claim of disparate treatment, the plaintiff must show that he was treated differently than other similarly situated employees who violated work rules of comparable seriousness. Elmore v. Capstan, Inc., 58 F.3d 525, 529-30 (10th Cir.1995). “Similarly situated employees are those who deal with the same supervisor and are subject to the same standards governing performance evaluation and discipline.” Wilson v. Utica Park Clinic, Inc., No. 95-5060, 76 F.3d 394, 1996 WL 50462 (10th Cir. Feb.7, 1996) (unpublished) (citing Mazzella v. RCA Global Communications, Inc.," }, { "docid": "15139038", "title": "", "text": "• When Plaintiff took a call from Tucker at work, supervisors learned that he had threatened Plaintiffs children and permitted her to call police and her family immediately. Tucker was not in the vicinity of the Ludlow-Saylor premises at the time. Thus, even assuming Plaintiff could set forth a prima facie case with regard to Tucker’s behavior, Ludlow-Saylor has set forth the remedial actions it took to prevent these incidents and to protect Plaintiff from them (changing shifts, locking doors, etc.). Plaintiff has provided the Court with nothing beyond mere allegation which disputes the response of management was adequate. Plaintiff has failed to set forth a prima facie case of harassment. Moreover, even if she had, Ludlow-Saylor has set forth an affirmative defense, the substance of which Plaintiffs own testimony does not dispute, and to which the Plaintiff has failed to respond. Disparate Treatment Title VII prohibits employers from discharging an employee because of her sex, but also prohibits an employer from treating her differently, by reason of her sex, with respect to the “terms, conditions, or privileges” of her employment. See 42 U.S.C. § 2000e-2(a)(l). “A plaintiff may prove such disparate treatment by showing that she was treated less favorably than similarly situated employees who are not in the plaintiffs protected class.” Stanback v. Best Diversified Products, Inc., 180 F.3d 903, 909-10 (8th Cir.1999); see also Barge v. Anheuser-Busch, Inc., 87 F.3d 256, 259-60 (8th Cir.1996). To establish a prima facie case, a plaintiff must demonstrate that she is a member of a protected class and that she was^ treated differently because of her race [or sex] than similarly situated employees who were not members of a protected class. Stanback v. Best Diversified Products, Inc., 180 F.3d at 909-10 (construing prima facie elements for hostile environment based upon racial harassment). To succeed against a motion for summary judgment, a plaintiff must produce “ ‘spécific tangible evidence’ showing a disparity in the treatment of similarly situated employees.” Stanback, at 909-10 (citing Rose-Maston v. NME Hosps., Inc., 133 F.3d 1104, 1109 n. 4 (8th Cir.1998)). The plaintiff has the burden of" }, { "docid": "14226956", "title": "", "text": "the only Hispanic, “dark-skinned person” in the Education Center. (Id. 7; see, e.g., Risco Dep. 55:18-21, 77:11-14; FFC Tr. 35:12-16, 88:13-89:5. ) Risco claims that Byrd would have handled then-interpersonal problems differently if she had been a light-skinned, Caucasian employee. (FFC Tr. 45:8-11,110:18-21.) Defendant argues that he is entitled to summary judgment on Plaintiffs race and color discrimination claims because: (1) Risco has failed to identify any similarly situated employee outside her protected group who was treated more favorably, and (2) Plaintiff fails to satisfy the fourth element of a prima facie case in that she cannot offer any direct evidence sufficient to give rise to an inference of discrimination on the basis of race or color. (Def.’s Mem. 12-14; Def.’s Reply Mem. 3-6.) Defendant does not address whether Plaintiff has satisfied the first three elements of a prima facie case of discrimination. C. Discussion 1. Disparate Treatment With respect to Plaintiffs claims of disparate treatment, Risco has failed to identify any comparators with whom she claims she was similarly situated. She has provided “no factual support that a single alleged comparator performed similar job functions, was subjected to, the same disciplinary standards, engaged in similar conduct, or was treated more favorably.” Abdul-Hakeem v. Parkinson, No. 3:10-cv747 (JBA), 2012 WL 234003, at *5 (D.Conn. Jan. 25, 2012). Risco’s general claim that “basic rules of the workplace applied to Risco and her co-workers,” including “being treated in an honest manner by one’s superior,” and “being given the same treatment with regard to the dissemination of an employee’s performance standards” (Pl.’s Mem. 8), does not demonstrate that Risco was similarly situated “in all material respects” to her co-workers in the Education Center. The Second Circuit has clearly explained that the plaintiff must be “subject to the same performance evaluation and discipline standards” as the employees who she claims are similarly situated. Ruiz, 609 F.3d at 493-94. In this case, Risco was the only probationary employee in the Education Center. As a probationary employee, Risco was subject to being disciplined and even terminated in a more summary fashion and was therefore not similarly" }, { "docid": "14567015", "title": "", "text": "to nothing but an unsubstantiated conclusion. Merriweather produced no evidence that Examiner Elliott (or any other person) was similarly situated — that is, had been placed on light duty or had been hospitalized with no known date of return to work and required to provide a doctor’s excuse. In addition, Merriweather has not even stated the circumstances surrounding the third instance for which she alleges she was required to provide a doctor’s excuse. Since she, like the plaintiff in Pugh, carries the burden of showing that the defendant treated similarly situated, non-minority employees more favorably, her unsubstanti ated conclusion that she was required to obtain doctor’s excuses while white employees were not is not enough to establish that similarly situated non-minority employees received more favorable treatment from DPS regarding the enforcement of the doctor’s excuse rule. Merriweather therefore fails to establish a prima facie ease of disparate treatment based on the doctor’s excuse rule. 3. April 1996 Job Evaluation Merriweather claims that in April of 1996, after refusing to sign a job evaluation with which she did not agree, she was escorted to Montgomery and asked to sign the evaluation, whereas no other employees had been punished for similar conduct. The court finds again that Merriweather fails to establish a prima facie case because the third element, that the defendant treated similarly situated, non-minority employees more favorably, has not been shown. If the plaintiff fails to identify similarly situated, non-minority employees who were treated more favorably, her case must fail. Jones v. Bessemer Carraway Medical Ctr., 137 F.3d 1306, 1311 (11th Cir.1998). In the present case, Merriweather has not even alleged that any other employee had ever refused to sign an evaluation form. In the absence of such evidence, the court fails to see how DPS’ action in requiring her to travel to Montgomery with her supervisors and to sign her evaluation could be motivated by racial animus. Thus, Merriweather fails to state a prima facie case for racially disparate treatment for the events which followed April 1996 evaluation. Even assuming that Merriweather had stated a claim for racially disparate" }, { "docid": "14567016", "title": "", "text": "she did not agree, she was escorted to Montgomery and asked to sign the evaluation, whereas no other employees had been punished for similar conduct. The court finds again that Merriweather fails to establish a prima facie case because the third element, that the defendant treated similarly situated, non-minority employees more favorably, has not been shown. If the plaintiff fails to identify similarly situated, non-minority employees who were treated more favorably, her case must fail. Jones v. Bessemer Carraway Medical Ctr., 137 F.3d 1306, 1311 (11th Cir.1998). In the present case, Merriweather has not even alleged that any other employee had ever refused to sign an evaluation form. In the absence of such evidence, the court fails to see how DPS’ action in requiring her to travel to Montgomery with her supervisors and to sign her evaluation could be motivated by racial animus. Thus, Merriweather fails to state a prima facie case for racially disparate treatment for the events which followed April 1996 evaluation. Even assuming that Merriweather had stated a claim for racially disparate treatment based on these events, Defendants have provided a legitimate business reason for their actions in requiring Merriweather to travel to Montgomery with her supervisors. Defendants state that Captain Howell, who reviews all driver license employee evaluation forms, asked Merriweather and her supervisors to travel to Montgomery in order to find out whether there was a problem with Merriweather’s evaluation, and if so, to resolve it. See Howell Aff. at p. 2. As Defendants note, Merriweather makes no attempt to show that Defendants’ proffered business reason for such action was pretext for discrimination. In the absence of any evidence to support that Defendants’ actions were discriminatory, Merriweather’s racially disparate treatment claim, insofar as it is based upon the April 1996 evaluation events, cannot survive Defendants’ Motion for Summary Judgment. 3. Training classes Merriweather asserts that she was not given the opportunity to attend special training classes or to receive similar on-the-job training opportunities while other employees were given such opportunities to enhance and improve job skills and performance. Specifically, Merriweather complains that she was not" } ]

[ { "docid": "1703396", "title": "", "text": "rental charges, landing fees, and other service charges from aircraft operators for the use of airport facilities. . The prohibition is broader than just against head taxes. Aloha Airlines, Inc. v. Director of Taxation, 464 U.S. 7, 104 S.Ct. 291, 78 L.Ed.2d 10 (1983). . Whether there is standing by any private charging party to appeal the administrative ruling of the Secretary is an issue we need not decide. But see 49 U.S.C.App. § 1486(a). . 49 U.S.C.App. § 1305 reads in part: (a) Preemption (1) Except as provided in paragraph (2) of this subsection, no State or political subdivision thereof and no interstate agency or other political agency of two or more States shall enact or enforce any law, rule, regulation, standard, or other provision having the force and effect of law relating to rates, routes, or services of any air carrier having authority under subchapter IV of this chapter to provide air transportation. ****** (b) Proprietary powers and rights (1) Nothing in subsection (a) of this section shall be construed to limit the authority of any State or political subdivision thereof or any interstate agency or other political agency of two or more States as the owner or operator of an airport served by any air carrier certificated by the Board to exercise its proprietary powers and rights. . Although there is, in our opinion, a serious question whether a private cause of action exists under § 105 of the Federal Aviation Act, see Air Transport Ass’n v. P.U.C. of State of Cal., 833 F.2d 200, 207 (9th Cir.1987), cert. denied, — U.S. —, 108 S.Ct. 2904, 101 L.Ed.2d 936 (1988); Montauk-Caribbean Airways, Inc. v. Hope, 784 F.2d 91, 97-98 (2d Cir.1986), cert. denied, 479 U.S. 872, 107 S.Ct. 248, 93 L.Ed.2d 172 (1986), this issue was neither argued below nor raised before us. The district court, relying on American Airlines Inc. v. Massachusetts Port Authority, 560 F.2d 1036 (1st Cir.1977), a pre-1978 Deregulation Act case, assumed that there was a private right to suit and decided the § 105 issue on the merits. We shall follow suit." } ]

[ { "docid": "7626795", "title": "", "text": "appeal from the district court’s denial of her motion, Mrs. Digre argues that the court erred in concluding that a 42 U.S.C. § 1983 action is not available to remedy violations of the EHA or the due process clause of the fourteenth amendment. We agree. A section 1983 action lies when a defendant acting under color of state law violates a right secured by the Constitution or federal laws. Watertown Equip. Co. v. Norwest Bank, Watertown, N.A., 830 F.2d 1487, 1489 (8th Cir.1987). It encompasses claims based on purely statutory violations of federal laws. Maine v. Thiboutot, 448 U.S. 1, 5-6, 100 S.Ct. 2502, 2504-05, 65 L.Ed.2d 555 (1980). An exception to this general rule exists when a comprehensive remedial scheme evidences a congressional intent to foreclose resort to section 1983 to remedy statutory violations. Wright v. City of Roanoke Redevelopment & Housing Auth., 479 U.S. 418, 107 S.Ct. 766, 771, 93 L.Ed.2d 781 (1987); Middlesex County Sewerage Auth. v. Nat’l Sea Clammers Ass’n, 453 U.S. 1, 19, 101 S.Ct. 2615, 2625, 69 L.Ed.2d 435 (1981). In Smith v. Robinson, 468 U.S. 992, 1012, 104 S.Ct. 3457, 3468, 82 L.Ed.2d 746 (1984), the Supreme Court analyzed the EHA’s extensive remedial scheme and concluded that Congress intended to preclude reliance on section 1983 for violations of the EHA or an equal protection claim to a publicly financed special education. The court, however, distinguished a due process challenge and suggested that “unlike an independent equal protection claim, maintenance of an independent due process challenge to state procedures would not be inconsistent with the EHA’s comprehensive scheme.” Id. at 1014-15 n. 17, 104 S.Ct. at 3469 n. 17. We have held that a due process challenge under section 1983 to procedures local and state agencies employ in an EHA context is permitted. Miener v. State of Missouri, 800 F.2d 749, 755 (8th Cir.1986) (challenging Missouri’s administrative procedures); Rose v. State of Nebraska, 748 F.2d 1258, 1263 (8th Cir.1984) (challenging partiality of hearing officer), cert. denied sub nom. Lutjeharms v. Rose, 474 U.S. 817, 106 S.Ct. 61, 88 L.Ed.2d 50 (1985). See also Robinson" }, { "docid": "20450581", "title": "", "text": "equal protection claim before we turn to the issue of qualified immunity. B. General Preclusion of § 1983 Claims Section 1 of the Civil Rights Act of 1871, codified as 42 U.S.C. § 1983, “authorizes suits to enforce individual rights under federal statutes as well as the Constitution” against state and local government officials. City of Rancho Palos Verdes, Cal. v. Abrams, 544 U.S. 113, 119, 125 S.Ct. 1453, 161 L.Ed.2d 316 (2005). Section 1983 does not create substantive rights, but operates as “a means for vindicating federal rights conferred elsewhere.” Padula v. Leimbach, 656 F.3d 595, 600 (7th Cir.2011) (quoting Ledford v. Sullivan, 105 F.3d 354, 356 (7th Cir.1997)). In evaluating the limits of relief available under § 1983 for statutory claims, the Supreme Court has held that “[w]hen the remedial devices provided in a particular Act are sufficiently comprehensive, they may suffice to demonstrate congressional intent to preclude the remedy of suits under § 1983.” Middlesex Cnty. Sewerage Auth. v. Nat’l Sea Clammers Ass’n, 453 U.S. 1, 20, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981). In Sea Clammers, the Supreme Court held that a suit for damages under the Federal Water Pollution Control Act (“FWPCA”) or Marine Protection, Research, and Sanctuaries Act of 1972 (“MPRSA”) could not be brought pursuant to § 1983 because both Acts “provide quite comprehensive enforcement mechanisms.” Id. These mechanisms include citizen-suit provisions, which allow private citizens to sue for prospective relief, and notice provisions requiring such plaintiffs to notify the EPA, the State, and the alleged violator before filing suit. Id. at 6, 101 S.Ct. 2615. Over two decades after Sea Clammers, the Supreme Court again rejected a plaintiffs attempt to seek damages under § 1983 for violation of a statute which provided its own, more restrictive judicial remedy. See Rancho Palos Verdes, 544 U.S. at 121-23, 125 S.Ct. 1453. In Rancho Palos Verdes, the plaintiff filed suit for injunctive relief under the Telecommunications Act of 1996 (“TCA”) and sought damages and attorney’s fees under § 1988 after a city planning committee denied his request for a conditional-use permit for an antenna tower" }, { "docid": "18314847", "title": "", "text": "potentially bear on the subject matter of the PBR: (1) the ADA, Pub.L. No. 95-504, 92 Stat. 1705 (1978); and (2) the Federal Aviation Act of 1958 (the “FAA”), Pub.L. No. 85-726, 72 Stat. 731. We begin with the former. I. “Since the existence of preemption turns on Congress’s intent, we are to ‘begin as we do in any exercise of statutory construction[,] with the text of the provision in question, and move on, as need be, to the structure and purpose of the Act in which it occurs.’” McNally v. Port Auth. of N.Y. & N.J. (In re WTC Disaster Site), 414 F.3d 352, 371 (2d Cir.2005) (alteration in original) (quoting N.Y. State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 655, 115 S.Ct. 1671, 131 L.Ed.2d 695 (1995)). The ADA’s express preemption provision states as follows: Except as provided in this subsection, a State, political subdivision of a State, or political authority of at least 2 States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier that may provide air transportation under this subpart. 49 U.S.C. § 41713(b)(1). The exceptions to which this provision refers are not applicable in this case. Thus, the PBR is preempted if it is “related to a price, route, or service of an air carrier.” We conclude that it is. A. Air Transport’s complaint asserts a claim under the Supremacy Clause and a claim that the PBR violates § 41713(b)(1). Importantly, § 41713(b)(1) does not provide an express private right of action, and we have held with regard to its predecessor statute, which is substantively identical, that no private right of action can be implied. W. Air Lines, Inc. v. Port Auth. of N.Y. & N.J., 817 F.2d 222, 225 (2d Cir.1987); Montauk-Caribbean Airways, Inc. v. Hope, 784 F.2d 91, 97 (2d Cir.1986). Air Transport therefore cannot sue for a violation of the statute. Nevertheless, Air Transport is entitled to pursue its preemption challenge through its" }, { "docid": "19835838", "title": "", "text": "(8th Cir.), cert. denied, - U.S. -, 117 S.Ct. 395, 136 L.Ed.2d 310 (1996) (citing Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 24, 100 S.Ct. 242, 249, 62 L.Ed.2d 146 (1979)). A private right of action cannot be implied on the basis of the third and fourth factors alone. Interface Group, Inc. v. Massachusetts Port Authority, 816 F.2d 9 (1st Cir.1987) (citing Transamerica Mortgage Advisors, Inc., 444 U.S. at 23, 100 S.Ct. at 249). The district court found no private right of action éxists under the AAIA and dismissed the cause of action brought by Dollar under the AAIA. Although this is a case of first impression in the Eighth Circuit, the district court agreed with and adopted the reasoning in Northwest Airlines, Inc. v. County of Kent, 955 F.2d 1054 (6th Cir.1992), aff'd on other grounds, 510 U.S. 355, 114 S.Ct. 855, 127 L.Ed.2d 183 (1994); Interface Group, Inc. v. Massachusetts Port Authority, 816 F.2d 9 (1st Cir.1987); and Arrow Airways, Inc. v. Dade County, 749 F.2d 1489 (11th Cir.1985). In each of these cases, the courts found none of the AAIA’s provisions, including the requirement of various assurances of nondiscrimination, suggest the AAIA was intended to benefit nonaeronautieal parties such as car rental concessionaires; the AAIA lacked language that “could run in favor of private plaintiffs”;. and the AAIA’s enforcement scheme did not suggest Congress intended to create a private right of action. Interface, 816 F.2d at 15; Arrow Airways, Inc., 749 F.2d at 1490-91; Northwest Airlines, Inc., 955 F.2d at 1058-59. See also Western Air Lines v. Port Auth. of N.Y. & N.J., 817 F.2d 222, 225 (2d Cir.1987) (no private right of action exists under the Airport and Airway Improvement Act of 1982), cert. denied, 485 U.S. 1006, 108 S.Ct. 1467, 99 L.Ed.2d 697 (1988). We agree with our sister circuits and find it unnecessary to repeat the analysis set forth in these cases and elaborated on by the district court. Dollar also contends the administrative remedy found in the AAIA is not inconsistent with a private right of action. Section 47107(g) rests enforcement" }, { "docid": "21423550", "title": "", "text": "536 U.S. at 280, 122 S.Ct. 2268 (quoting Pennhurst, 451 U.S. at 17, 28, and 28 n. 21, 101 S.Ct. 1531). Second, in Middlesex County Sewerage Authority v. National Sea Clammers Ass’n, 453 U.S. 1, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981), the Court explained that “[w]hen the remedial devices provided in a particular Act are sufficiently comprehensive, they may suffice to demonstrate congressional intent to preclude the remedy of suits under § 1983.” Id. at 20, 101 S.Ct. 2615. Since Pennhurst and Sea Clammers, the Supreme Court has developed a three-prong framework for “determining whether a particular statutory provision gives rise to a federal right” redressable via § 1983. See Blessing, 520 U.S. at 340, 117 S.Ct. 1353. Specifically, courts must consider whether: (l)“Congress ... intended that the provision in question benefit the plaintiff’; (2) the plaintiff has “demonstrate[d] that the right assertedly protected by the statute is not so ‘vague and amorphous’ that its enforcement would strain judicial competence”; and (3) “the statute ... unambiguously impose[s] a binding obligation on the States,” such that “the provision giving rise to the asserted right ... [is] couched in mandatory, rather than precatory terms.” Id. at 340-41, 117 S.Ct. 1353 (citing Wilder v. Va. Hosp. Ass’n, 496 U.S. 498, 510-11, 110 S.Ct. 2510, 110 L.Ed.2d 455 (1990), superseded on other grounds by statute as discussed in Alaska Dep’t of Health & Soc. Servs. v. Ctrs. for Medicare & Medicaid Servs., 424 F.3d 931, 941 (9th Cir.2005), Wright v. Roanoke Redevelopment and Hous. Auth., 479 U.S. 418, 430, 431-32, 107 S.Ct. 766, 93 L.Ed.2d 781 (1987); and Pennhurst, 451 U.S. at 17, 101 S.Ct. 1531). In a 2002 decision, Gonzaga University v. Doe, the Court clarified the first of these three factors. As Gonzaga explained: Section 1983 provides a remedy only for the deprivation of “rights, privileges, or immunities secured by the Constitution and laws” of the United States. Accordingly, it is rights, not the broader or vaguer “benefits” or “interests,” that may be enforced under the authority of that section. 536 U.S. at 283, 122 S.Ct. 2268. “This being so,” the" }, { "docid": "1703364", "title": "", "text": "there are several statutes here in question, we believe for purposes of analysis it is best to deal with each statute individually. Section 511 of the Airport and Airway Improvement Act of 1982 We commence our review of these issues in the light of Section 511 oí the Airport and Airway Improvement Act of 1982, 49 U.S.C.App. § 2210, because in a sense this is the least controversial of the statutes before us. The district court dismissed the allegations in the various complaints making claims pursuant to § 511, ruling that no private cause of action existed under this provision. Obviously, Mass-port, who initially raised this issue, supports this holding, and the Secretary, although not a party to the district court law suit, is equally in agreement. Although appellants in Nos. 88-1971, 1972 and 1973 challenge this result, we must affirm it, as it is in keeping with unambiguous circuit precedent, Interface Group, Inc. v. Massachusetts Port Authority, 816 F.2d 9, 15 (1st Cir.1987), as well as the clear language of the statute. Ante n. 18. See also Arrow Airways, Inc. v. Dade County, 749 F.2d 1489, 1491 (11th Cir.1985). Cf. Rocky Mountain Airways, Inc. v. Pitkin County, 674 F.Supp. 312 (D.Colo.1987) (airline has no private cause of action against county under 42 U.S.C. § 1983 for county’s alleged violation of § 511). At least as to § 511, this outcome has the benign effect of eliminating potentially conflicting decisions between the judicial and administrative forums. As to § 511 there can be no conflict, as the district court did not decide the merits of the questions raised. But affirmance of the district court’s decision on this issue does not end the matter. It just shifts the arena in which this controversy is to be fought from the courts to the administrative forum. Interface Group, Inc., 816 F.2d at 15 (“Congress intended to enact an exclusively administrative enforcement scheme”). It is left to the Secretary to enforce § 511. Arrow Airways, Inc., 749 F.2d at 1491. Section 511(b) provides in part that: To insure compliance with this section, the Secretary" }, { "docid": "11433766", "title": "", "text": "S.Ct. 2502, 65 L.Ed.2d 555 (1980). In order to seek redress under § 1983, a plaintiff “must assert the violation of a federal right,” and not merely a violation of federal law. Golden State Transit Corp. v. Los Angeles, 493 U.S. 103, 106, 110 S.Ct. 444, 107 L.Ed.2d 420 (1989). Thus, a plaintiff alleging a violation of a federal statute may not proceed under § 1983 unless (1) the statute creates “enforceable rights, privileges, or immunities within the meaning of § 1983” and (2) Congress has not “foreclosed such enforcement of the statute in the enactment itself.” Wright v. Roanoke Redev. & Hous. Auth., 479 U.S. 418, 423, 107 S.Ct. 766, 93 L.Ed.2d 781 (1987). See Middlesex County Sewerage Auth. v. National Sea Clammers Ass’n, 453 U.S. 1, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981) (holding that § 1983 actions were impliedly precluded under the Federal Water Pollution Control Act). A plaintiff asserting a statutory claim under § 1983 has the initial burden of demonstrating that the statute creates a substantive right. See Blessing v. Freestone, 520 U.S. 329, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997). If the plaintiff carries this burden, a rebuttable presumption arises that a § 1983 claim is available, and the burden shifts to the defendant to show that a § 1983 action was explicitly or implicitly precluded by the statute. See Wright, 479 U.S. at 423, 107 S.Ct. 766. One way that a statute may implicitly preclude a § 1983 action is by creating a comprehensive remedial scheme. See Sea Clammers, 453 U.S. at 20, 101 S.Ct. 2615; Smith v. Robinson, 468 U.S. 992, 1011, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984) (holding that § 1983 actions were impliedly precluded under the Education of the Handicapped Act); see also Farley v. Philadelphia Hous. Auth., 102 F.3d 697, 703 (3d Cir.1996) (“The Supreme Court has held that in enacting the U.S. Housing Act, Congress did not specifically foreclose a § 1983 remedy by enactment of a comprehensive scheme of remedial mechanisms”). A key distinction between schemes that are sufficiently comprehensive to preclude a § 1983 claim" }, { "docid": "9811588", "title": "", "text": "airports receiving federal funds and requires recipients of federal funds to furnish contractual assurances that they will refrain from such discrimination. Although the statute mandates that the Secretary of Transportation may approve grants to federally funded airports only upon written assurance that the airport operator will comply with non-discrimination provisions, we have previously concluded that no private right of action existed under similar provisions. Western Air Lines v. Port Auth. of N.Y. & NJ, 817 F.2d 222, 225 (2d Cir.1987) (rejecting the argument that the predecessor to 49 U.S.C. 47107(a), 49 U.S.C.App. § 2210(a), created a private right of action). See also Montauk-Caribbean Airways, Inc. v. Hope, 784 F.2d 91, 97-98 (2d Cir.1986) (no implied private right of action under 49 U.S.CApp. § 1305(a), which established the federal government’s sphere of power over the states in areas of interstate air transportation or 49 U.S.C.App. § 1349(a) which provided that “[t]here shall be no exclusive right for the use of any landing area or air navigation facility upon which Federal funds have been expended”); County of Westchester v. Town of Greenwich, 745 F.Supp. 951, 955 (S.D.N.Y.1990) (no private right of action under 49 U.S.C.App. § 1304, which provided that “[t]here is recognized and declared to exist in behalf of any citizen of the United States a public right of freedom of transit through the navigable airspace of the United States”). Additionally, the Eighth Circuit has found that no private right of action exists under the very provision at issue here. See Four T’s, Inc. v. Little Rock Mun. Airport Comm’n, 108 F.3d 909, 915 (8th Cir.1997). On remand, we invite the district court to reconsider, in light of the foregoing, its decision that 49 U.S.C. § 47107(a) provides Sound with a federal right that may serve as a basis for its § 1983 claim. D. Clearly Established Law Only after determining “whether the plaintiff has alleged the deprivation of an actual constitutional right at all” should the district court “proceed to determine whether that right was clearly established at the time of the alleged violation.” Wilson, 119 S.Ct. at 1697 (quotation" }, { "docid": "23287842", "title": "", "text": "section 706(8) [29 U.S.C. § 706(8)], shall, solely by reason of his or her handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.... 29 U.S.C. § 794 (Supp.1989). 42 U.S.C. § 1983 provides a remedy for violations of rights secured by the Constitution or federal statutes, where such violations were committed under color of state law. Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir.1986), cert. denied, 479 U.S. 1054, 107 S.Ct. 928, 93 L.Ed.2d 979 (1987). In Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980), the Supreme Court announced the general rule that a section 1983 claim could be predicated solely on a violation of a federal statute. Id. at 4-8, 100 S.Ct. at 2504-06. In Middlesex County Sewerage Auth. v. National Sea Clammers Ass’n, 453 U.S. 1, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981) the Court reiterated two exceptions to the general rule of Thiboutot. Of particular relevance here, the Court held that a section 1983 claim, based solely on a violation of a federal statute, does not lie where Congress has foreclosed a section 1983 remedy through a sufficiently comprehensive remedial and enforcement apparatus in the underlying federal statute. Middlesex, 453 U.S. 1, 19-20, 101 S.Ct. 2615, 2625-26, 69 L.Ed.2d 435 (1981) (citing Pennhurst State School & Hospital v. Halderman, 451 U.S. 1, 28, 101 S.Ct. 1531, 1545, 67 L.Ed.2d 694 (1981)). Relying on Middlesex, the magistrate found that the Rehabilitation Act provided a sufficiently comprehensive remedy to demonstrate congressional intent to supplant section 1983 claims, and therefore granted summary judgment dismissing plaintiffs’ First Amendment claims. Defendants urge the same conclusion from this Court. 1. “Could Have Been Brought” The magistrate’s conclusion that plaintiffs’ section 1983 claims were barred by the Rehabilitation Act is erroneous for two reasons. First, the doctrine of Middle-sex only bars section 1983 claims that could have been brought under a separate federal statute which provides remedial devices sufficiently comprehensive to demonstrate a congressional intent to preclude section 1983 claims." }, { "docid": "5301317", "title": "", "text": "There is no private right of action under 49 U.S.C.App. Section 2210. See, e.g., New England Legal Foundation v. Massachusetts Port Auth., 883 F.2d 157, 168 (1st Cir.1989); Western Airlines, Inc. v. Port Auth. of New York and New Jersey, 817 F.2d 222, 225 (2nd Cir.1987), cert. denied, 485 U.S. 1006, 108 S.Ct. 1467, 99 L.Ed.2d 697 (1988); Arrow Airways, Inc. v. Dade County, 749 F.2d 1489, 1491 (11th Cir.1985). (3) Defendants are not federal agencies within the meaning of the federal Administrative Procedures Act and are therefore not subject to the requirements of the APA. See, e.g., Munoz-Mendoza v. Pierce, 711 F.2d 421, 430 (1983); City of Rohnert Park v. Harris, 601 F.2d 1040, 1048 (9th Cir.1979), cert. denied, 445 U.S. 961, 100 S.Ct. 1647, 64 L.Ed.2d 236 (1980). (4) Defendants are not \"executive agencies” and therefore are not covered by the Maryland Administrative Procedures Act. Md.State Gov’t Code Ann. § 10-102(a) (1984). (5) Plaintiffs have no viable claims for punitive damages either under 42 U.S.C. Section 1983, see City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 268, 101 S.Ct. 2748, 2760, 69 L.Ed.2d 616 (1981), or under Maryland law for breach of contract. Md.Cts. & Jud.Proc.Code, §§ 5-322 to 5-324 (1992 cum. supp.); See Miller Building Supply, Inc. v. Rosen, 305 Md. 341, 503 A.2d 1344, 1347 (1986). . It is well established that a corporation is a “person” within the meaning of the Due Process clause of the Fourteenth Amendment, see, e.g., Metropolitan Life Ins. Co. v. Ward, 470 U.S. 869, 881 n. 9, 105 S.Ct. 1676, 1683 n. 9, 84 L.Ed.2d 751 (1985); Grosjean v. American Press Co., 297 U.S. 233, 244, 56 S.Ct. 444, 446, 80 L.Ed. 660 (1936), and that a corporation may vindicate its constitutional rights by suing under Section 1983. See, e.g., South Macomb Disposal Authority v. Township of Washington, 790 F.2d 500, 503 (6th Cir.1986); California Diversified Promotions, Inc. v. Musick, 505 F.2d 278, 283 (9th Cir.1974). . Defendants point out that complaints about the Skydiving Center’s operations had been a frequent topic of conversation at the Airport Commission" }, { "docid": "18712978", "title": "", "text": "Dist., 817 F.2d 303 (5th Cir.1987) (denying qualified immunity where teacher tied student to a chair for an entire school day). To account for this, Plaintiff argues that qualified immunity does not demand that pri- or cases be precisely on point in order to find clearly established law. See Stoneking v. Bradford Area School District, 882 F.2d 720, 730 (3d Cir.1989), cert. denied, 493 U.S. 1044, 110 S.Ct. 840, 107 L.Ed.2d 835 (1990). Yet this is not a case where prior cases logically lead to the right asserted by Plaintiff. The extension of liability for failure to protect against student-to-student behavior does not clearly flow from prior sexual harassment and duty to protect cases. Further, attempts to extend constitutional protections to such cases have been controversial and consistently unsuccessful. See, e.g., Walton v. Alexander, 44 F.3d 1297 (5th Cir.1995); Graham v. Independent School District No. I-89, 22 F.3d 991 (10th Cir.1994); Dorothy J. v. Little Rock School District, 7 F.3d 729 (8th Cir.1993). Although Mr. Bouchard’s alleged failure protect Plaintiff is very troubling, it did not violate a clearly established constitutional or statutory right. Defendant Bouchard is entitled to qualified immunity from Plaintiffs Title IX claim. III. Count II — Fourteenth Amendment Defendants argue that Plaintiff cannot bring constitutional claims based on the same factual allegations as her Title IX claims. In Middlesex County Sewerage Authority v. National Sea Clammers Ass’n, 453 U.S. 1, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981), the Supreme Court held that “[w]hen the remedial devices provided in a particular Act are sufficiently comprehensive, they may suffice to demonstrate congressional intent to preclude the remedy of suits under § 1983.” Id. at 20, 101 S.Ct. at 2626. The Third Circuit has held that constitutional claims grounded on the same underlying facts as a Title IX claim are “subsumed” within the Title IX claim. Williams v. School Dist. of Bethlehem, 998 F.2d 168, 176 (3d Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 689, 126 L.Ed.2d 656 (1994); Pfeiffer v. School Bd. for Marion Ctr. Area, 917 F.2d 779, 789 (3d Cir.1990). Applying the Sea Clammers test," }, { "docid": "4603966", "title": "", "text": "for the denial of rights created by a federal statute. Maine v. Thiboutot, 448 U.S. 1, 4-7, 100 S.Ct. 2502, 2504-06, 65 L.Ed.2d 555 (1980). However, Thiboutot has been narrowed by subsequent decisions. See Middlesex County Sewerage Auth. v. Nat’l Sea Clammers Ass’n., 453 U.S. 1, 19, 101 S.Ct. 2615, 2625-26, 69 L.Ed.2d 435 (1981); Pennhurst State School and Hosp. v. Halderman, 451 U.S. 1, 28, 101 S.Ct. 1531, 1545, 67 L.Ed.2d 694 (1981). Pennhurst created two exceptions limiting the effect of the Thiboutot rule. More particularly, in cases involving the enforcement of federal statutory rights, access to a section 1983 remedy should be denied if (1) the language of the statute indicates a congressional intent to preclude section 1983 enforcement by making alternative remedies available, Pennhurst, 451 U.S. at 17-18, 101 S.Ct. at 1539-40, or (2) the statute does not create “rights” enforceable by private parties under section 1983, id. at 20-22, 101 S.Ct. at 1541-43. See also Coos Bay Center v. State of Or., Dep’t. of Human Resources, 803 F.2d 1060, 1062 (9th Cir.1986), vacated on grounds of mootness, — U.S. —, 108 S.Ct. 52, 98 L.Ed. 2d 17 (1987). With respect to the first exception, the focus of the inquiry should be on the “comprehensiveness” of a statute’s remedial scheme, if there is no express statement of congressional intent in the statute itself or the legislative history. Coos Bay Center, 803 F.2d at 1062. The comprehensiveness of a remedial scheme can suffice to demonstrate congressional intent to “preclude the remedy of suits under § 1983.” Middlesex County Sewerage Auth., 453 U.S. at 20, 101 S.Ct. at 2626. When “ ‘a state official is alleged to have violated a federal statute which provides its own comprehensive enforcement scheme, the requirements of that enforcement scheme may not be bypassed by bringing suit directly under § 1983.’ ” Id. With respect to the second exception, the analysis should focus primarily on whether Congress intended to create a private right of action to enforce the statute. Boatowners and Tenants Ass’n. v. Port of Seattle, 716 F.2d 669, 672 (9th Cir.1983). The" }, { "docid": "20450580", "title": "", "text": "disagree with Levin’s analysis. Instead, we believe this case is analogous to Wilkie v. Robbins, 551 U.S. 537, 127 S.Ct. 2588, 168 L.Ed.2d 389 (2007). In Wilkie, on an interlocutory appeal of the denial of qualified immunity, the Supreme Court considered whether a new, freestanding damages remedy should exist under Bivens. Id. at 548-50, 127 S.Ct. 2588 (citing Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971)). The Supreme Court held that it had jurisdiction to consider whether such a remedy existed because the recognition of an entire cause of action is “directly implicated by the defense of qualified immunity.” Id. at 549 n. 4 (quoting Hartman v. Moore, 547 U.S. 250, 257 n. 5, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006)). Similar to Wilkie, the very existence of a freestanding damages remedy under § 1983 is directly implicated by a qualified immunity defense such that we have jurisdiction over this appeal. Thus, we first consider whether the ADEA precludes a § 1983 equal protection claim before we turn to the issue of qualified immunity. B. General Preclusion of § 1983 Claims Section 1 of the Civil Rights Act of 1871, codified as 42 U.S.C. § 1983, “authorizes suits to enforce individual rights under federal statutes as well as the Constitution” against state and local government officials. City of Rancho Palos Verdes, Cal. v. Abrams, 544 U.S. 113, 119, 125 S.Ct. 1453, 161 L.Ed.2d 316 (2005). Section 1983 does not create substantive rights, but operates as “a means for vindicating federal rights conferred elsewhere.” Padula v. Leimbach, 656 F.3d 595, 600 (7th Cir.2011) (quoting Ledford v. Sullivan, 105 F.3d 354, 356 (7th Cir.1997)). In evaluating the limits of relief available under § 1983 for statutory claims, the Supreme Court has held that “[w]hen the remedial devices provided in a particular Act are sufficiently comprehensive, they may suffice to demonstrate congressional intent to preclude the remedy of suits under § 1983.” Middlesex Cnty. Sewerage Auth. v. Nat’l Sea Clammers Ass’n, 453 U.S. 1, 20, 101 S.Ct. 2615, 69 L.Ed.2d" }, { "docid": "19835839", "title": "", "text": "of these cases, the courts found none of the AAIA’s provisions, including the requirement of various assurances of nondiscrimination, suggest the AAIA was intended to benefit nonaeronautieal parties such as car rental concessionaires; the AAIA lacked language that “could run in favor of private plaintiffs”;. and the AAIA’s enforcement scheme did not suggest Congress intended to create a private right of action. Interface, 816 F.2d at 15; Arrow Airways, Inc., 749 F.2d at 1490-91; Northwest Airlines, Inc., 955 F.2d at 1058-59. See also Western Air Lines v. Port Auth. of N.Y. & N.J., 817 F.2d 222, 225 (2d Cir.1987) (no private right of action exists under the Airport and Airway Improvement Act of 1982), cert. denied, 485 U.S. 1006, 108 S.Ct. 1467, 99 L.Ed.2d 697 (1988). We agree with our sister circuits and find it unnecessary to repeat the analysis set forth in these cases and elaborated on by the district court. Dollar also contends the administrative remedy found in the AAIA is not inconsistent with a private right of action. Section 47107(g) rests enforcement authority with the Secretary of Transportation. We find the Sixth Circuit’s reasoning persuasive: The fact that § 47107 requires the various written assurances of nondiscrimination to be given to the Secretary of Transportation “indicates that Congress intended to establish an administrative enforcement scheme” rather than a private right of action. Northwest Airlines, Inc., 955 F.2d at 1058. In summary, we find the district court did not err when it found Dollar was not one of the class “for whose especial benefit” the AAIA was enacted. We also find the district court did not err when it found the statute contained no explicit or implicit legislative intent to create a private remedy under the AAIA. Accordingly, we hold the AAIA does not create a private right of action; therefore, the district court appropriately dismissed Dollar’s cause of action brought under the AAIA Jf2 U.S.C. § 1983 Dollar contends the district court erred when it found Dollar had no cause of action to enforce the AAIA under 42 U.S.C. § 1983. A plaintiff may bring a private" }, { "docid": "11312374", "title": "", "text": "private parties to enforce the relevant provisions of federal law against those officials. See Middlesex County Sewage Auth. v. National Sea Clammers Ass’n, 453 U.S. 1, 21 n. 31, 101 S.Ct. 2615, 2627 n. 31, 69 L.Ed.2d 435 (1981) (“[W]e do not suggest that the burden is on a plaintiff to demonstrate congressional intent to preserve § 1983 remedies.”). Instead, Congress is, in effect, presumed to legislate against the background of section 1983 and thus to contemplate private enforcement of the relevant statute against state and municipal actors absent fairly discernible congressional intent to the contrary. See, e.g., Keaukaha-Panaewa Community Ass’n v. Hawaiian Homes Comm., 739 F.2d 1467, 1470-71 (9th Cir.1984). Thus in Sea Clammers, the Court explicitly recognized that the availability of section 1983 to enforce federal statutory rights was subject to two “exceptions” indicating affirmative congressional intent to preclude section 1983 enforcement: (1) Congress’ explicit or implicit foreclosure of private enforcement in the statutory scheme itself or (2) Congress’ failure to establish “enforceable rights” in the relevant statutory provision. See Sea Clammers, 453 U.S. at 19, 101 S.Ct. at 2625; Pennhurst State School & Hospital v. Halderman, 451 U.S. 1, 28, 101 S.Ct. 1531, 1545, 67 L.Ed.2d 694 (1981). As an example of the first such exception, the Court has stated that “[wjhen the remedial devices provided in a particular Act are sufficiently comprehensive, they may suffice to demonstrate congressional intent to preclude the remedy of suits under § 1983.” Sea Clammers, 453 U.S. at 20, 101 S.Ct. at 2626. As an example of the second, the Court has suggested that a section 1983 action will not lie to enforce vague policy sections of federal statutes intended only to advise, rather than to mandate, a particular course of conduct. See Pennhurst, 451 U.S. at 28, 101 S.Ct. at 1545. Under Sea Clammers and Pennhurst, then, plaintiffs can enforce all federal laws against state officials under section 1983 unless it can be shown that Congress affirmatively intended to foreclose such enforcement by failing to impose mandatory federal obligations or by creating a comprehensive remedial scheme in the statute itself." }, { "docid": "18314848", "title": "", "text": "other provision having the force and effect of law related to a price, route, or service of an air carrier that may provide air transportation under this subpart. 49 U.S.C. § 41713(b)(1). The exceptions to which this provision refers are not applicable in this case. Thus, the PBR is preempted if it is “related to a price, route, or service of an air carrier.” We conclude that it is. A. Air Transport’s complaint asserts a claim under the Supremacy Clause and a claim that the PBR violates § 41713(b)(1). Importantly, § 41713(b)(1) does not provide an express private right of action, and we have held with regard to its predecessor statute, which is substantively identical, that no private right of action can be implied. W. Air Lines, Inc. v. Port Auth. of N.Y. & N.J., 817 F.2d 222, 225 (2d Cir.1987); Montauk-Caribbean Airways, Inc. v. Hope, 784 F.2d 91, 97 (2d Cir.1986). Air Transport therefore cannot sue for a violation of the statute. Nevertheless, Air Transport is entitled to pursue its preemption challenge through its Supremacy Clause claim. The distinction between a statutory claim and a Supremacy Clause claim, although seemingly without a difference in this particular context, is important and is not a trifling formalism: W. Air Lines, 817 F.2d at 225-26. Moreover, contrary to amici’s suggestion, Air Transport’s preenforcement challenge presents no problem of unripeness or other barriers to justiciability. See Morales v. Trans World Airlines, Inc., 504 U.S. 374, 880-81, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992) (citing Ex parte Young, 209 U.S. 123, 145-47, 163-65, 28 S.Ct. 441, 52 L.Ed. 714 (1908)). A claim under the Supremacy Clause that a federal law preempts a state regulation is distinct from a claim for enforcement of that federal law.... A claim under the Supremacy Clause simply asserts that a federal statute has taken away local authority to regulate a certain activity. In contrast, an implied private right of action is a means of enforcing the substantive provisions of a federal law. It provides remedies, frequently including damages, for violations of federal law by a government entity or by" }, { "docid": "15398478", "title": "", "text": "since Salt Lake City is more than 1,500 miles from LaGuardia. In the district court, Western’s effort to enjoin the perimeter rule centered on three federal aviation statutes: 49 U.S.C. § 1305, which limits local authority to regulate airlines’ “rates, routes or services;” 49 U.S.C. § 2210(a), which requires an airport proprietor receiving federal funds to make its facilities available on a reasonable and non-discriminatory basis; and 49 U.S.C. § 1349(a), which prohibits such proprietors from granting exclusive access to any airline. Western claimed that there is an implied private right of action under each statute; Western also relied on 42 U.S.C. § 1983. Western also claimed that under the Supremacy Clause, the perimeter rule was preempted by section 1305(a)(1). The district court, relying on our holding in Montauk-Caribbean Airways, Inc. v. Hope, 784 F.2d 91 (2d Cir.), cert. denied, _ U.S. _, 107 S.Ct. 248, 93 L.Ed.2d 172 (1986), ruled that the statutes relied on by Western do not provide a private right of action. In addition, the court dismissed Western’s claims under section 1983 for lack of prosecution. The district court did find that Western could assert its preemption claim based on the Supremacy Clause. On the merits, however, it found that the Authority’s perimeter rule was not preempted by section 1305. Discussion In Montauk-Caribbean, we held that there are no implied private rights of action to enforce sections 1349(a) and 1305(a). 784 F.2d at 97-98. We are, of course, bound by that decision, fairly construed. The district court correctly recognized that our analysis in Montauk-Caribbean applies equally to a suit claiming an implied right of action to enforce section 2210(a). See also Interface Group, Inc. v. Massachusetts Port Authority, 816 F.2d 9, 14-16 (1st Cir.1987); Arrow Airways, Inc. v. Dade County, 749 F.2d 1489, 1490-91 (11th Cir.1985). We also held in Montauk-Caribbean that sections 1305(a) and 1349(a) cannot be enforced through section 1983. 784 F.2d at 98. That holding would require dismissal of Western’s section 1983 claims with respect to sections 1305(a) and 1349(a) in this case. We need not decide, however, whether there is a persuasive" }, { "docid": "3770105", "title": "", "text": "prior to October 1, 1981, are binding on this court); Harris v. Menendez, 817 F.2d 737, 739 & n. 4 (11th Cir.1987) (holding a summary affirmance of district court to be binding under Bonner). The authorizing statute and the transportation regulation thus satisfy the third prong of the Wilder, test. Because the statutory provisions and the regulation create an enforceable right to transportation under the three-prong Wilder test, the final question is whether the Medicaid statute itself creates a remedial scheme that is “sufficiently comprehensive ... to demonstrate congressional intent to preclude the remedy for suits under § 1983.” Middlesex County Sewerage Auth. v. Nat’l Sea Clammers Ass’n, 453 U.S. 1, 20, 101 S.Ct. 2615, 2626, 69 L.Ed.2d 435 (1981). Neither the majority nor the State contends that a sufficient remedial scheme exists here to foreclose a § 1983 remedy. The plaintiffs thus have an enforceable right to transportation, actionable under § 1983. IV. Employing either the approach to enforceable rights proposed by the majority or the long-standing framework employed by the Supreme Court, I would hold that the Medicaid statute, 42 U.S.C. § 1396a(a), and the applicable regulation, 42 C.F.R. § 431.53, confer upon the plaintiffs an enforceable right to transportation. I therefore respectfully DISSENT. . See Harris v. James, 883 F.Supp. 1511, 1521 (M.D.Ala.1995). In its initial brief on appeal, the State referred to many of the same Supreme Court cases relied on by the majority, see infra note 3, but it did not dispute that regulations could be considered under the three-prong Wilder test. Instead, the State argued that “the Secretary's regulation for transportation services exceeds the mandate of the Congressional statute and, therefore, is not a right within the meaning of§ 1983.” Appellant's Brief at 19. . An appellant's argument must be in its initial brief in order not to be considered waived. McGinnis v. Ingram Equipment Co., Inc., 918 F.2d 1491, 1496-97 (11th Cir.1990); 20 James Wm. Moore, Moore’s Federal Practice II 328.20[4],[7] (3d ed.1997). See Fed.R.App.P. 28(a) (describing required contents of appellant's brief). A claim absent from an appellant's initial brief is considered abandoned" }, { "docid": "9811587", "title": "", "text": "record evidence ... suggesting] that ... [defendant’s] actions may have been wholly unwarranted under the law.” Notably, plaintiffs in Brady specified the laws which had been improperly enforced against them, namely state building codes and town zoning regulations. Additionally, at the summary judgment stage, the record contained specific facts from which constitutional malice could be inferred. Id. at 208, 216-17. Of course, in the current procedural stance and on the present record, we cannot ascertain whether plaintiffs’ allegations rise to the level of a denial of Equal Protection. Accordingly, we leave this question for the district court on remand. C. 49 U.S.C. § 47107(a) Sound alleges a violation of their right, pursuant to 49 U.S.C. § 47107(a), to be free from disparate treatment because the Town Board members discriminated against Sound during the bidding process. The district court concluded that the alleged violations, if proved, may constitute unfair' discrimination giving rise to a § 1983 claim. Section 47107(a) of Title 49 prohibits certain forms of discrimination among competing fixed base operators and air carriers at airports receiving federal funds and requires recipients of federal funds to furnish contractual assurances that they will refrain from such discrimination. Although the statute mandates that the Secretary of Transportation may approve grants to federally funded airports only upon written assurance that the airport operator will comply with non-discrimination provisions, we have previously concluded that no private right of action existed under similar provisions. Western Air Lines v. Port Auth. of N.Y. & NJ, 817 F.2d 222, 225 (2d Cir.1987) (rejecting the argument that the predecessor to 49 U.S.C. 47107(a), 49 U.S.C.App. § 2210(a), created a private right of action). See also Montauk-Caribbean Airways, Inc. v. Hope, 784 F.2d 91, 97-98 (2d Cir.1986) (no implied private right of action under 49 U.S.CApp. § 1305(a), which established the federal government’s sphere of power over the states in areas of interstate air transportation or 49 U.S.C.App. § 1349(a) which provided that “[t]here shall be no exclusive right for the use of any landing area or air navigation facility upon which Federal funds have been expended”); County of" }, { "docid": "5301316", "title": "", "text": "fact relates, I will assume that defendants’ factual assertion is correct. . Plaintiffs also contend that parachute jumping falls within the right to travel protected by the Fourteenth Amendment. The only authority which they cite in support of this proposition is Shapiro v. Thompson, 394 U.S. 618, 629, 89 S.Ct. 1322, 1328, 22 L.Ed.2d 600 (1969), which struck down state statutes establishing waiting periods for the receipt of welfare benefits. I am unpersuaded that the Constitution should be trivialized as plaintiffs suggest. Thus, since the Gibsons were not parties to the Skydiving Center's lease and have no cognizable property right under the lease, their Section 1983 claim fails. Five others claims asserted by plaintiffs may be summarily disposed of. (1) There is no direct constitutional claim, either for a denial of due process or an infringement of the right to travel, against a local municipality under the U.S. Constitution. See, e.g., Weller v. Department of Social Services, 901 F.2d 387, 398 (4th Cir.1990); Cale v. City of Covington, 586 F.2d 311, 313 (4th Cir.1978). (2) There is no private right of action under 49 U.S.C.App. Section 2210. See, e.g., New England Legal Foundation v. Massachusetts Port Auth., 883 F.2d 157, 168 (1st Cir.1989); Western Airlines, Inc. v. Port Auth. of New York and New Jersey, 817 F.2d 222, 225 (2nd Cir.1987), cert. denied, 485 U.S. 1006, 108 S.Ct. 1467, 99 L.Ed.2d 697 (1988); Arrow Airways, Inc. v. Dade County, 749 F.2d 1489, 1491 (11th Cir.1985). (3) Defendants are not federal agencies within the meaning of the federal Administrative Procedures Act and are therefore not subject to the requirements of the APA. See, e.g., Munoz-Mendoza v. Pierce, 711 F.2d 421, 430 (1983); City of Rohnert Park v. Harris, 601 F.2d 1040, 1048 (9th Cir.1979), cert. denied, 445 U.S. 961, 100 S.Ct. 1647, 64 L.Ed.2d 236 (1980). (4) Defendants are not \"executive agencies” and therefore are not covered by the Maryland Administrative Procedures Act. Md.State Gov’t Code Ann. § 10-102(a) (1984). (5) Plaintiffs have no viable claims for punitive damages either under 42 U.S.C. Section 1983, see City of Newport v. Fact" } ]

[ { "docid": "15175926", "title": "", "text": "on the motion to confirm the award by summary judgment. This motion pleads the statute, and is expressly based on section 9 thereof, which provides that “If the parties in their agreement have agreed that a judgment of the court shall be entered upon the award made pursuant to the arbitration, and shall specify the court, then at any time within one year after the award is made any party to the arbitration may apply to the court so specified for an order confirming the award, and thereupon the court must grant such an order unless the award is vacated, modified, or corrected as prescribed in sections 10 and 11 of this title. If no court is specified in the agreement of the parties, then such application may be made to the United States court in and for the district within which such award was made.” U. S. C., title 9, § 9 (9 USCA § 9). But the ai'bitration agreement here in question contained no agreement for confirming any award by judgment of any court, summary or otherwise; the plaintiff relying for his statutory jurisdiction entirely upon the phrase of the arbitration agreement that an, award thereunder should be binding. All procedural provisions of the act deal mainly with proceedings in admiralty, in equity, or by motion, which are for decision by a judge aloue, but the proviso of. section 4 expressly saves trial by jury in certain fundamental questions of agreement and default, without which the constitutionality of so much of the act would be open to grave question. Capital Traction Co. v. Hof, 174 U. S. 1, 19 S. Ct. 580, 43 L. Ed. 873. Section 9 is predicated upon an agreement of the parties not only to arbitrate their disputes, but to confirm their awards in courts which they may select if they wish, but which the statute nominates if the parties do not. In re Thurston (C. C. A.) 48 F.(2d) 578. And the proceedings before the motions judge in this case, as indicated in the record, illustrate the difficulty of summary action in such" } ]

[ { "docid": "23489406", "title": "", "text": "district court on the trial. Moreover, the terms of .Section 4 of the Act are permissive, not mandatory. See International Brotherhood of Teamsters v. Shapiro, supra. Our conelusion is that it was not necessary for Smith & Bird to resort to Section 4 of the Act before proceeding to arbitration m this case by the single arbitrator. Regardless of the foregoing conclusions, appellant contends that the award in favor of Smith & Bird could not be enforced by an action at law commenced more than one year after the award was made. This claim is based upon the proposition that the enforcement of the award in this case is barred by Section 9 of the United States Arbitration Act, which-provides that: “If the parties in their agreement have agreed that a judgment of the court shall be entered upon the award made pursuant to the arbitration, and shall specify the court, then at any time within one year after the award is made any party to the arbitration may apply to the court so specified for an order confirming the award, and thereupon the court must grant such an order unless the award is vacated, modified, or corrected as prescribed in sections 10 and 11 of this title. If no 'court is specified in the agreement of the parties, then such application may be made to the United States court in and for the district within which such award was made.” The language of the foregoing section as to application to the court for an order is not mandatory, but permissive. See United Fuel Gas Co. v. Columbian Fuel Corp., 4 Cir., 165 F.2d 746; Lehigh Structural Steel Co. v. Rust Engineering Co., 61 App.D.C. 224, 59 F.2d 1038. A party may, therefore, apply to the court for an order confirming the award, but is not limited to such remedy. Prior to the enactment of the United States Arbitration Act, an action at law on the award was the proper method of enforcing it. Red Cross Line v. Atlantic Fruit Co., 264 U.S. 109, 44 S.Ct. 274, 68 L.Ed. 582." }, { "docid": "9328250", "title": "", "text": "unless the award is vacated, modified, or corrected as prescribed in sections 10 and 11 of this title. If no court is specified in the agreement of the parties, then such application may be made to the United States court in and for the district within which such award was made. 9 U.S.C.A. § 9 (1970). Ordinary canons of statutory construction suggest that Congress would have used stronger language than “such application may be made” or “may apply” if the intention was to restrict the power of a federal court in Arbitration Act cases. Interpretation of the federal statute as being a permissible rather than a mandatory method for the enforcement of arbitration awards is even more plausible in light of various federal decisions holding that passage of the Arbitration Act did not supersede common law enforcement of such awards. Kentucky River Mills v. Jackson, 206 F.2d 111, 120 (6th Cir. 1953), cert. denied 346 U.S. 887, 74 S.Ct. 144, 98 L.Ed. 392 (1953); Brown v. Bridgeport Rolling Mills Co., 245 F.Supp. 41, 45 n. 7 (D.Conn.1965). No jurisdictional restrictions under Title 9 apply to such a method of enforcement. Therefore, the Court concludes that the federal district court in Oklahoma had subject matter jurisdiction over this case, and was empowered to transfer the matter to this Court under § 1404(a) of Title 28. Even if this Court were to rule that the Oklahoma tribunal had no subject matter jurisdiction over the affirmation of the award, the case law indicates that the “one year” provision of § 9 of the Arbitration Act is not tantamount to a statute of limitations. See Kentucky River Mills, 206 F.2d at 120; Brown, 245 F.Supp. at 45 n. 7. Nothing before the Court indicates that the plaintiff would be precluded from filing a petition to affirm the award in this district tomorrow if the motion to dismiss would be granted today. Since the matter is before the Court on the merits at the present time, it would be impractical and inefficient to require the parties to engage in an additional circuitous procedure to satisfy" }, { "docid": "9328249", "title": "", "text": "the opposite of that confronted by the Second Circuit in the Robert Lawrence Co. case. The Court must consider whether Congress has limited the jurisdiction of federal courts in arbitration award affirmance cases to the district in which the award was granted. Some courts have so held. See, e. g., Arthur Imerman Undergarment Co. v. Local 162, International Ladies’ Garment Workers’ Union, 145 F.Supp. 14, 17 (D.N.J.1956). While Congress has the power to restrict the jurisdiction of federal courts in the manner suggested by the defendant, the statute seems to suggest that the power has not been explicitly executed. The law in question provides as follows: If the parties in their agreement have agreed that a judgment of the court shall be entered upon the award made pursuant to the arbitration, and shall specify the court, then at any time within one year after the award is made any party to the arbitration may apply to the court so specified for an order confirming the award, and thereupon the court must grant such an order unless the award is vacated, modified, or corrected as prescribed in sections 10 and 11 of this title. If no court is specified in the agreement of the parties, then such application may be made to the United States court in and for the district within which such award was made. 9 U.S.C.A. § 9 (1970). Ordinary canons of statutory construction suggest that Congress would have used stronger language than “such application may be made” or “may apply” if the intention was to restrict the power of a federal court in Arbitration Act cases. Interpretation of the federal statute as being a permissible rather than a mandatory method for the enforcement of arbitration awards is even more plausible in light of various federal decisions holding that passage of the Arbitration Act did not supersede common law enforcement of such awards. Kentucky River Mills v. Jackson, 206 F.2d 111, 120 (6th Cir. 1953), cert. denied 346 U.S. 887, 74 S.Ct. 144, 98 L.Ed. 392 (1953); Brown v. Bridgeport Rolling Mills Co., 245 F.Supp. 41, 45 n." }, { "docid": "6921193", "title": "", "text": "to Confirm All that remains before the Court, then, is the Defendant’s [13] Cross-Motion to Confirm the Arbitration Award. Defendant moves for confirmation of the award pursuant to 9 U.S.C. § 9, which provides as follows: If the parties in their agreement have agreed that a judgment of the court shall be entered upon the award made pursuant to the arbitration, and shall specify the court, then at any time within one year after the award is made any party to the arbitration may apply to the court so specified for an order confirming the award, and thereupon the court must grant such an order unless the award is vacated, modified, or corrected as prescribed in sections 10 and 11 of this title. If no court is specified in the agreement of the parties, then such application may be made to the United States court in and for the district within which such award was made. As the Supreme Court has observed, “[o]n application for an order confirming the arbitration award, the court ‘must grant’ the order ‘unless the award is vacated, modified, or corrected.’ ” Hall Street, 552 U.S. at 587, 128 S.Ct. 1396. “There is nothing malleable about ‘must grant,’ which unequivocally tells courts to grant confirmation in all cases, except when one of the ‘prescribed’ exceptions applies.” Id.; see also Int’l Thunderbird Gaming Corp. v. United Mexican States, 473 F.Supp.2d 80, 83 (D.D.C.2007) (“in the absence of a legal basis to vacate, this court has no discretion but to confirm the award”) aff'd 255 Fed.Appx. 531 (D.C.Cir.2007). In this case, the parties’ arbitration agreement specifies that “[t]he award and any order from the arbitration shall be final and binding on all parties to such arbitration and judgment thereon may be entered in any court having jurisdiction thereof.” Covenants Agreement at 7-8. Under the plain language of 9 U.S.C. § 9, this agreement permits Defendant to apply to the United States court in and for the district within which the award was made for confirmation of the award. As indicated above, the arbitration hearing took place in Washington," }, { "docid": "6364636", "title": "", "text": "district court was lifted, and a date for trial was set. This claim was then dismissed by stipulation. Sver-drup made a timely appeal to this Court. II. In accord with the district court, we treat Sverdrup’s motion as a request to confirm the arbitration award. Section 9 of the FAA provides a mechanism for summary confirmation of arbitration awards. 9 U.S.C. § 9. It reads in pertinent part: If the parties in their agreement have agreed that a judgment of the court shall be entered upon the award made pursuant to the arbitration, and shall specify the court, then at any time within one year after the award is made, any party to the arbitration may apply to the court so specified for an order confirming the award, and thereupon the court must grant such an order unless the award is vacated, modified, or corrected as prescribed in section 10 and 11 of this title. If no court is specified in the agreement of the parties, then such application may be made to the United States court in and for the district within which such award was made. Id. (emphasis added). Contradictory interpretations of this language give rise to the primary issue on appeal, i.e., whether a party to an arbitration agreement, which is subject to the FAA’s provisions, may confirm an arbitration award beyond the one-year period allowed in § 9. Before the district court and on appeal, Sverdrup relied heavily on cases from other jurisdictions which have addressed § 9 and have held that the one-year time period for application to a district court is permissive rather than mandatory. The language of the foregoing section [§ 9 of the FAA] as to application to the court for an order is not mandatory, but permissive.... Enforcement of the award in this case is not barred by the one-year limitation contained in Section 9 of the Act, which provides for the sum mary remedy of confirmation of the award by the court. Kentucky River Mills v. Jackson, 206 F.2d 111, 120 (6th Cir.), cert. denied, 346 U.S. 887, 74 S.Ct." }, { "docid": "15423797", "title": "", "text": "151. Concluding that these sections are otherwise parallel, the court concluded that Congress “understood the plain meaning of ‘may’ [in section 9] to be permissive,” id. at 151, and that section 9 “must [therefore] be interpreted as its plain language indicates, as a permissive provision which does not bar the confirmation of an award beyond a one-year period.” Id. at 156. Sections 9 and 11, however, are not otherwise parallel. Sections 10 and 11 of the FAA govern the filing of motions to vacate or modify; both describe the circumstances under which a court “may” make an order vacating, modifying or correcting an award “upon the application of any party to the arbitration .... ” 9 U.S.C. §§ 10, 11. Because section 12 comes into play only in the event that a party makes such an application, “must” in section 12 unambiguously bears on when a party can file a motion to vacate, modify, or correct, and not whether the party has discretion to bring such a motion. (Such discretion is provided by the “may” in sections 10 and II.) In section 9, by contrast, “may” can be read to reflect a party’s discretion as to whether to “apply to the court ... for an order confirming the award.” See Kentucky River Mills v. Jackson, 206 F.2d 111, 120 (6th Cir.1953) (“The language of [section 9] as to application to the court for an order is not mandatory, but permissive. A party may, therefore, apply to the court for an order confirming the award, but is not limited to such remedy.”). Sverdrup also relied on considerations of judicial economy: “[b]ecause remedies do exist outside the FAA’s framework to enforce [an arbitral] award, reading § 9 as a strict statute of limitations would be an exercise in futility” because it would “merely encourage, at the expense of judicial economy, the use of another analogous method of enforcing awards.” Sverdrup, 989 F.2d at 155. We agree with the Fourth Circuit that an action at law offers an alternative remedy to enforce an arbi-tral award, but we draw a different conclusion from the" }, { "docid": "23489407", "title": "", "text": "for an order confirming the award, and thereupon the court must grant such an order unless the award is vacated, modified, or corrected as prescribed in sections 10 and 11 of this title. If no 'court is specified in the agreement of the parties, then such application may be made to the United States court in and for the district within which such award was made.” The language of the foregoing section as to application to the court for an order is not mandatory, but permissive. See United Fuel Gas Co. v. Columbian Fuel Corp., 4 Cir., 165 F.2d 746; Lehigh Structural Steel Co. v. Rust Engineering Co., 61 App.D.C. 224, 59 F.2d 1038. A party may, therefore, apply to the court for an order confirming the award, but is not limited to such remedy. Prior to the enactment of the United States Arbitration Act, an action at law on the award was the proper method of enforcing it. Red Cross Line v. Atlantic Fruit Co., 264 U.S. 109, 44 S.Ct. 274, 68 L.Ed. 582. Enforcement of the award in this case is not barred by the one-year limitation contained in Section 9 of the Act, which provides for the summary remedy of confirmation of the award by the court. AppeUant»s ckim that the assignment of the award for purposes of suit was invalid; cannot be sustained. Smith & B¡rd made the assignment> fciduding therein power of attorney, in New York, to appellee, for purposes of suit which was brought in Kentucky. Appellee was the real party in interest; Titus. v. Wallick, 306 U.S. 282, 59 S.Ct. 557, 83 L.Ed. 653; Rosenblum v. Dingfelder, 2 Cir., 111 F.2d 406; Heitzmann v. Willys-Overland Motors, Inc., D.C.N.Y., 68 F.Supp. 873; Price & Pierce, Ltd. v. Jarka Great Lakes Corp., D.C.Mich., 37 F.Supp. 939; and the validity of the assignment and title of the assignee is determined in this case by the law of the state of New York where the assignment was made, even though it might not be valid under the laws of Kentucky if made in Kentucky; Fogarty v. Neal," }, { "docid": "1037854", "title": "", "text": "controlled by an interpretation of Section 8 of the Federal Arbitration Act, 9 U.S.C. § 8. The purpose of Section 8 is to give an “aggrieved” party the benefit of the security provided by jurisdiction in rem while preserving the right to arbitrate. Marine Transit Corp. v. Dreyfus, 284 U.S. 263, 275, 52 S.Ct. 166, 76 L.Ed. 282 (1932); Greenwich Marine, Inc. v. S. S. Alexandra, 339 F.2d 901, 904 (2nd Cir. 1965). The meaning and effect of Section 8 present a question of federal substantive law. Cf. Robert Lawrence Co. v. Devonshire Fabrics, Inc., 271 F.2d 402 (2nd Cir. 1959), cert. dismissed 364 U.S. 801, 81 S.Ct. 27, 5 L.Ed.2d 37 (1961). Although the order to arbitrate ran only against the Owner and the Charterer, inasmuch as the attachment was proper and the libel originally filed in the instant case was “otherwise justiciable in admiralty,” 9 U.S.C. § 8, an order confirming the arbitration award pursuant to 9 U.S.C. § 9 is effective in rem against the subfreights. Cf. Marine Transit Corp. v. Dreyfus, 284 U.S. 263, 52 S.Ct. 166, 76 L.Ed. 282 (1932). The arbitration award rendered between the Owner and the Charterer is confirmed. The Owner is entitled to release of the subfreights presently held by the Clerk of the Court. So ordered. . Section 9 of the Arbitration Act pertinently provides: “If the parties in their agreement have agreed that a judgment of the court shall be entered upon the award made pursuant to the arbitration, and shall specify the court, then at any time within one year after the award is made any party to the arbitration may apply to the court so specified for an order confirming the award, and thereupon the court must grant such an order unless the award is vacated, modified, or corrected as prescribed in sections 10 and 11 of this title. If no court is specified in the agreement of the parties, then such application may be made to the United States court in and for the district within which such award was made. Notice of the application shall" }, { "docid": "4543357", "title": "", "text": "(6th Cir.1953) (explaining that \"[a] party may ... apply to the court for an order confirming the award, but is not limited to such remedy. Prior to the enactment of the United States Arbitration Act, an action at law on the award was the proper method of enforcing it.”)(citing Red Cross Line v. Atlantic Fruit Co., 264 U.S. 109, 44 S.Ct. 274, 68 L.Ed. 582 (1924)); Insurdata Mktg. Services, LLC v. Healthplan Services, Inc., 352 F.Supp.2d 1252, 1254-55 (M.D.Fla.2005) (holding that a party could seek enforcement of arbitration award through common law contract action rather than seeking confirmation of the award under the FAA). . But see Sverdrup, 989 F.2d at 151-156 (refusing to read Section 9 of the FAA as a strict statute of limitations, reasoning that the language in Section 9 of the FAA is permissive, and holding that the FAA did not bar an action to confirm an arbitration award more than one year after the award). . Cf. Robinson, 326 F.3d at 771 (reasoning that because bankruptcy courts are \" 'courts of the United States' for purposes of Section 3 of the FAA, it would seem to follow that they are 'United States Court[s]' for purposes of Section 10 of the FAA as well.”) (citation omitted). . See, e.g., In re Rosendahl, 307 B.R. 199, 209 (Bankr.D.Or.2004) (stating that \"an unconfirmed arbitration award can be regarded as a final determination for issue preclusion purposes on subject matters of fact and law in appropriate circumstances” and applying collateral estoppel to a non-dischargeability claim under § 523(a)(6) based on an unconfirmed arbitration award); Wilbert Life Ins. Co. v. Beckemeyer (In re Beckemeyer), 222 B.R. 318, 321 (Bankr.W.D.Tenn.1998) (finding that confirmation of an arbitration is not required in order to give preclusive effect, provided the award is final under applicable law); Val-U Const. Co. of South Dakota v. Rosebud Sioux Tribe, 146 F.3d 573, 581 (8th Cir.1998) (\" '[t]he fact that the award in the present case was not confirmed in a court ... does not vitiate the finality of the award.' ”) (quoting Wellons, Inc. v. T.E. Ibberson" }, { "docid": "12343939", "title": "", "text": "erects no bar to enforcement of an arbitral award in an action at law on the award, see Macneil, Speidel, and Stipa-nowich, 4 Federal Arbitration Law § 38.2.2.2 (1994) (“Given that the common law remedy remained readily available, the drafters [of the FAA],. ,view[ed] confirmation [under § 9] as an extra remedy available to the parties.”). Section 9 of the Federal Arbitration Act states in pertinent part: If the parties in their agreement have agreed that a judgment of the court shall be entered upon the award made pursuant to the arbitration, and shall specify the court, then at any time within one year after the award is made any party to the arbitration may apply to the court so specified for an order confirming the award, and thereupon the court must grant such an order unless the award is vacated, modified, or corrected as prescribed in sections 10 and 11 of this title. Section 9 is conspicuously optional; .the first word is “if.” Section 9 states that “if’ the parties to an arbitration agreement provide for prompt reduction to judgment of the resulting award, either party (not just the “winner”) may (not “must” or “shall”) procure a judgment by mere “application” in the district court. The term ascribed in the statute to this optional, contract-based, and expedited resort to court, along with the accompanying right to “apply” for an order, is “confirmation.” In short, if the parties agree (explicitly or implicitly), application for confirmation and judgment is available as a speedy remedy to complement the otherwise available, but more ponderous, remedy of complaint and judgment. Booth v. Hume Publishing, Inc., 902 F.2d 925 (11th Cir.1990). The arbitration statute provides also for expedited service of the application for confirmation. Sections 9 and 10 provide an opportunity for either party to expeditiously “confirm” an award without respect to whether “enforcement” is necessary. Confirmation offers this opportunity, even if no breach (that is, an occasion warranting enforcement) has occurred. Also, Section 10 of the Federal Arbitration Act specifies the exclusive defenses to an application for confirmation. Summarily stated, the exclusive defenses to" }, { "docid": "6984253", "title": "", "text": "have intended that an independent basis of jurisdiction other than the United States Arbitration Act would be required in actions involving the Act. One other matter remains for resolution, and that is the effect of 9 U.S.C. § 9 (1970), which provides that: If the parties in their agreement have agreed that a judgment of the court shall be entered upon the award made pursuant to the arbitration, and shall specify the court, then at any time within one year after the award is made any party to the arbitration may apply to the court so specified for an order confirming the award, and thereupon the court must grant such an order unless the award is vacated, modified, or corrected as prescribed in sections 10 and 11 of this title. If no court is specified in agreement of the parties, then such application may be made to the United States court in and for the district within which such award was made. Notice of the application shall be served upon the adverse party and thereupon the court shall have jurisdiction of such party as though he had appeared generally in the proceeding. The contract herein does contain a provision stating that judgment may be entered upon an arbitration award in any court having jurisdiction. § 7.9.1. Further, as the arbitration award upon which Plaintiff relies was apparently rendered in this judicial district (Doc. # 1, ¶ 14, ¶ 15; Doc. # 20, p. 1), § 9 would appear to permit this Court to enforce that award. However, given the express statutory directives in §§ 4 and 8, which limit the district court’s jurisdiction to cases wherein the court would otherwise have subject matter jurisdiction, and the Supreme Court’s instruction that the Act be read as a whole, Bernhardt, 350 U.S. 198, 201, 76 S.Ct. 273, 275, 100 L.Ed. 199 (1956), this Court cannot read § 9 in so illogical a manner. Such an interpretation would make jurisdiction of actions brought on the basis of identical contracts contingent upon whether the parties involved sought to compel arbitration, or merely wished confirmation" }, { "docid": "22593780", "title": "", "text": "v. Ets-Hokin Corp., 397 F. 2d 935, 939 (CA9 1968) (§ 10 mandatory). We reverse. HH H-< Section 9 of the FAA governs venue for the confirmation of arbitration awards: “If the parties in their agreement have agreed that a judgment of the court shall be entered upon the award made pursuant to the arbitration, and shall specify the court, then at any time within one year after the award is made any party to the arbitration may apply to the court so specified for an order confirming the award, and thereupon the court must grant such an order unless the award is vacated, modified, or corrected as prescribed in sections 10 and 11 of this title. If no court is specified in the agreement of the parties, then such application may be made to the United States court in and for the district within which such award was made.” 9 U. S. C. §9. Section 10(a), governing motions to vacate arbitration awards, provides that “the United States court in and for the district wherein the [arbitration] award was made may make an order vacating the award upon the application of any party to the arbitration [in any of five enumerated situations].” And under § 11, on modification or correction, “the United States court in and for the district wherein the award was made may make an order modifying or correcting the award upon the application of any party to the arbitration.” The precise issue raised in the District Court was whether venue for Cortez Byrd’s motion under §§ 10 and 11 was properly laid in the southern district of Mississippi, within which the contract was performed. It was dearly proper under the general venue statute, which provides, among other things, for venue in a diversity action in “a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated.” 28 U. S. C. § 1391(a)(2). If §§ 10 and 11 are permissive and thus supplement, but do" }, { "docid": "15423798", "title": "", "text": "in sections 10 and II.) In section 9, by contrast, “may” can be read to reflect a party’s discretion as to whether to “apply to the court ... for an order confirming the award.” See Kentucky River Mills v. Jackson, 206 F.2d 111, 120 (6th Cir.1953) (“The language of [section 9] as to application to the court for an order is not mandatory, but permissive. A party may, therefore, apply to the court for an order confirming the award, but is not limited to such remedy.”). Sverdrup also relied on considerations of judicial economy: “[b]ecause remedies do exist outside the FAA’s framework to enforce [an arbitral] award, reading § 9 as a strict statute of limitations would be an exercise in futility” because it would “merely encourage, at the expense of judicial economy, the use of another analogous method of enforcing awards.” Sverdrup, 989 F.2d at 155. We agree with the Fourth Circuit that an action at law offers an alternative remedy to enforce an arbi-tral award, but we draw a different conclusion from the existence of that alternative. An action at law is not identical to the summary confirmation proceeding established by the FAA, which was intended to streamline the process and eliminate certain defenses. See generally Robert J. Gruendel, Domestic Law and International Conventions, the Imperfect Overlay: The FAA as a Case Study, Admiralty Law Institute Symposium: A Sea Chest for Sea Lawyers, 75 Tulane L.Rev. 1489, 1504-07 (2001) (noting that burdens and defenses available in an action at law to confirm an arbitration award differ from those in a statutory summary proceeding under the FAA). It was therefore not “futile” for Congress to have specified a statute of limitations for the filing of summary proceedings: consistent with the wording of the statute, a party to an arbitration is entitled to the benefits of the streamlined summary proceeding only if, as it may do, it files at any time within one year after the award is made. II It is undisputed in this case that Photopaint filed its motion to confirm the Final Award more than one year" }, { "docid": "950168", "title": "", "text": "of the decisions issued by the Arbitration Panel, it contends that this court lacks the requisite subject matter jurisdiction to entertain GAC’s application. Upon due consideration of the parties’ memoranda and extensive exhibits, and the arguments advanced at the hearing, the court hereby dismisses the application for confirmation of the Partial and Final Arbitration Awards for lack of subject matter jurisdiction. In addition, because the New Mexico state court action has been removed to a federal district court, the court denies GAC’s motion for preliminary injunction. In addressing UNC’s argument that this court lacks subject matter jurisdiction over the instant action, the court notes that federal courts are courts of limited jurisdiction, and the presumption is that they are without power to act unless the contrary affirmatively appears. Fifty Associates v. Prudential Insurance Company of America, 446 F.2d 1187, 1190 (9th Cir. 1970), later appeal 450 F.2d 1007 (9th Cir. 1971). GAC filed its application for confirmation of the Arbitration Awards pursuant to Section 9 of the Federal Arbitration Act. 9 U.S.C. § 9. This section provides in part that: If the parties in their agreement have agreed that a judgment of the court shall be entered upon the award made pursuant to the arbitration, and shall specify the court, then at any time within one year after the award is made any party to the arbitration may apply to the court so specified for an order confirming the award, and thereupon the court must grant such an order unless the award is vacated, modified, or corrected as prescribed in sections 10 and 11 of this title. If no court is specified in the agreement of the parties, then such application may be made to the United States court in and for the district within which such award was made. 9 U.S.C. § 9 The arbitration clause contained in the 1973 Supply Agreement does not limit the confirmation of an award thereunder to a specific court. Therefore, GAC seeks to invoke this court’s jurisdiction under the portion of Section 9 which authorizes application for confirmation to be “made to the" }, { "docid": "16762991", "title": "", "text": "secured an arbitration award in this case in June 1991, it has never taken any steps to confirm the award. The Tribe asserts that even if its motion for summary judgment in this case is considered as an effort to confirm its judgment, that motion was not made until August 10, 1993, more than two years after the award was entered. The Tribe asserts that Val-U should be estopped from pursuing enforcement of the arbitration award. Section 9 of the FAA states that: [i]f the parties in their agreement have agreed that a judgment of the court shall be entered upon the award made pursuant to the arbitration, and shall specify the court, then at any time within one year after the award is made any party to the arbitration may apply to the court so speci fied for an order confirming the award, and thereupon the court must grant such an order unless the award is vacated, modified, or corrected as prescribed in sections 10 and 11 of this title. ■ 9 U.S.C.A. § 9 (1970). ■The Fourth Circuit has held that the language of § 9 is permissive, that the one-year period is not a statute of limitations, and that a party may apply for confirmation of an award beyond the one-year period. Sverdrup Corp. v. WHC Constructors, Inc., 989 F.2d 148 (4th Cir.1993). The court stated that if it construed § 9 to be a statute of limitations, the court “would merely encourage, at the expense of judicial economy, the use of another analogous method of enforcing awards.” Id. at 155. But cf., In re Consolidated Rail Corp., 867 F.Supp. 25 (D.D.C. 1994) (holding that a party may apply for confirmation only within the one year period). We hold that § 9 is a permissive statute and does not require that a party file for confirmation within one year. If Congress intended for the one year period to be a statute of limitations, then it could have used the word “must” or “shall” in place of “may” in the language of the statute. Thus, Val-U may seek" }, { "docid": "4543356", "title": "", "text": "Pierce, Fenner & Smith, Inc., 39 F.3d 1482, 1488-89 (10th Cir.1994) (stating that \"[tjhere is a strong federal policy encouraging the expeditious and inexpensive resolution of disputes through arbitration.”) (citation omitted); ARW Exploration Corp. v. Aguirre, 45 F.3d 1455, 1462 (10th Cir.1995) (stating that \"[t]he Federal Arbitration Act, § 9 U.S.C. §§ 1-16, evinces a strong federal policy in favor of arbitration.”)(citing Shearson/American Express, Inc. v. McMahon, 482 U.S. 220, 226, 107 S.Ct. 2332, 2337, 96 L.Ed.2d 185 (1987)). . See Photopaint Technologies, LLC v. Smartlens Corp., 335 F.3d 152, 159 (2nd Cir.2003) (acknowledging that \"an action at law offers and alternative remedy to enforce an arbitral award ... ”); Sverdrup Corp. v. WHC Constructors, Inc., 989 F.2d 148, 154 (4th Cir.1993) (stating that “[t]he FAA supplemented rather than extinguished any previously existing remedies!]” and finding, therefore, that \"an action at law remains a viable alternative to confirmation proceedings under § 9 [of the FAA]” as a means to enforce a final arbitration award) (citations omitted); Kentucky River Mills v. Jackson, 206 F.2d 111, 120 (6th Cir.1953) (explaining that \"[a] party may ... apply to the court for an order confirming the award, but is not limited to such remedy. Prior to the enactment of the United States Arbitration Act, an action at law on the award was the proper method of enforcing it.”)(citing Red Cross Line v. Atlantic Fruit Co., 264 U.S. 109, 44 S.Ct. 274, 68 L.Ed. 582 (1924)); Insurdata Mktg. Services, LLC v. Healthplan Services, Inc., 352 F.Supp.2d 1252, 1254-55 (M.D.Fla.2005) (holding that a party could seek enforcement of arbitration award through common law contract action rather than seeking confirmation of the award under the FAA). . But see Sverdrup, 989 F.2d at 151-156 (refusing to read Section 9 of the FAA as a strict statute of limitations, reasoning that the language in Section 9 of the FAA is permissive, and holding that the FAA did not bar an action to confirm an arbitration award more than one year after the award). . Cf. Robinson, 326 F.3d at 771 (reasoning that because bankruptcy courts are \" 'courts" }, { "docid": "6364637", "title": "", "text": "States court in and for the district within which such award was made. Id. (emphasis added). Contradictory interpretations of this language give rise to the primary issue on appeal, i.e., whether a party to an arbitration agreement, which is subject to the FAA’s provisions, may confirm an arbitration award beyond the one-year period allowed in § 9. Before the district court and on appeal, Sverdrup relied heavily on cases from other jurisdictions which have addressed § 9 and have held that the one-year time period for application to a district court is permissive rather than mandatory. The language of the foregoing section [§ 9 of the FAA] as to application to the court for an order is not mandatory, but permissive.... Enforcement of the award in this case is not barred by the one-year limitation contained in Section 9 of the Act, which provides for the sum mary remedy of confirmation of the award by the court. Kentucky River Mills v. Jackson, 206 F.2d 111, 120 (6th Cir.), cert. denied, 346 U.S. 887, 74 S.Ct. 144, 98 L.Ed. 392 (1953); Paul Allison, Inc. v. Minikin Storage of Omaha, Inc., 452 F.Supp. 573, 575 (D.Neb.1978); Brown v. Bridgeport Rolling Mills Co., 245 F.Supp. 41, 45 n. 7 (D.Conn.1965). See also Derwin v. General Dynamics Corp., 719 F.2d 484, 490 n. 5 (1st Cir.1983) (state arbitration statute construed); Heffner v. Jacobson, 100 N.J. 550, 498 A.2d 766, 768-69 (1985) (state arbitration statute stating party “may” commence action to confirm within three months was permissive). A persuasive textual argument bolsters this interpretation. The use of the word “may,” as opposed to mandatory language, has been deemed to have been of critical importance in determining the permissive nature of § 9. The word “[m]ay in a statute ... normally confers a discretionary power, not a mandatory power, unless the legislative intent, as evidenced by the legislative history, evidences a contrary purpose.” Dalton v. United States, 816 F.2d 971, 973 (4th Cir.1987) (citing United Hospital Center, Inc. v. Richardson, 757 F.2d 1445, 1453 (4th Cir.1985)); see also Koch Refining Co. v. United States Dep’t of" }, { "docid": "12343938", "title": "", "text": "of res judicata in much the same manner as a judgment of a court.”). Both the Federal Arbitration Act and the Florida Arbitration Code codify the policy favoring arbitration and provide summary confirmation of final and binding arbitral awards. 9 U.S.C. § 1, et. seq.; 5 Fla. Stat. 682. In addition to summary confirmation pursuant to federal or state statute, enforcement of an arbitral award is available by a civil action on the award. Kentucky River Mills v. Jackson, 206 F.2d 111, 120 (6th Cir.1953), cert. denied, 346 U.S. 887, 74 S.Ct. 144, 98 L.Ed. 392 (1953) (“[a] party may, therefore, apply to the court for an order confirming the award, but is not limited to such remedy. Before the enactment of the United States Arbitration Act, an action at law on the award was the proper method of enforcing it.”); see also Macneil, Speidel, and Stipanowich, 4 Federal Arbitration Law § 38.2.2.2 (1994) (“The common law method of enforcement consisted of bringing a contract action on the award.”). Failure to confirm pursuant to statute erects no bar to enforcement of an arbitral award in an action at law on the award, see Macneil, Speidel, and Stipa-nowich, 4 Federal Arbitration Law § 38.2.2.2 (1994) (“Given that the common law remedy remained readily available, the drafters [of the FAA],. ,view[ed] confirmation [under § 9] as an extra remedy available to the parties.”). Section 9 of the Federal Arbitration Act states in pertinent part: If the parties in their agreement have agreed that a judgment of the court shall be entered upon the award made pursuant to the arbitration, and shall specify the court, then at any time within one year after the award is made any party to the arbitration may apply to the court so specified for an order confirming the award, and thereupon the court must grant such an order unless the award is vacated, modified, or corrected as prescribed in sections 10 and 11 of this title. Section 9 is conspicuously optional; .the first word is “if.” Section 9 states that “if’ the parties to an arbitration agreement" }, { "docid": "23286041", "title": "", "text": "Aerospace Co. v. Local 516, UAW, 500 F.2d 921 (2d Cir.1974). We therefore conclude that the union’s action to confirm should be dismissed. As the action must be dismissed, albeit on a different ground from that stated by the district court, we affirm the judgment of the lower court, although we do so without prejudice to the right of either party to seek confirmation of the Stutz award should a proper occasion to do so arise. So ordered. . Section 9 of the federal arbitration act provides: If the parties in their agreement have agreed that a judgment of the court shall be entered upon the award made pursuant to the arbitration, and shall specify the court, then at any time within one year after the award is made any party to the arbitration may apply to the court so specified for an order confirming the award, and thereupon the court must grant such an order unless the award is vacated, modified, or corrected as prescribed in section 10 and 11 of this title. If no court is specified in the agreement of the parties, then such application may be made to the United States court in and for the district within which such award was made. 9 U.S.C. § 9. . See Textile Workers v. Lincoln Mills, 353 U.S. 448, 466, 77 S.Ct. 912, 926, 1 L.Ed.2d 972 (1957) (Frankfurter, J., dissenting); Edwards v. Sea-Land Serv., Inc., 678 F.2d 1276, 1291 (5th Cir. 1982), reh’g. denied, 685 F.2d 1385 (5th Cir. 1982), vacated on other grounds, - U.S. -, 103 S.Ct. 3104, 77 L.Ed.2d 1360 (1983); Service Employees International Union, Local 36 v. Office Center Services, Inc., 670 F.2d 404, 406 n. 6 (3d Cir.1982); Chauffeurs, Local 135 v. Jefferson Trucking Co., 628 F.2d 1023, 1025 (7th Cir. 1980), cert. denied, 449 U.S. 1125, 101 S.Ct. 942, 67 L.Ed.2d 111 (1981). Contra Int’l Ass’n of Machinists v. General Electric Co., 406 F.2d 1046 (2d Cir.1969). . Other federal circuit courts have unanimously declined to borrow limitations periods set forth in the federal act but have looked instead to state" }, { "docid": "22593779", "title": "", "text": "F. 3d 139, 144-145 (CA7 1994) (§§ 9 and 10 permissive); Smiga v. Dean Witter Reynolds, Inc., 766 F. 2d 698, 706 (CA2 1985), cert. denied, 475 U. S. 1067 (1986) (§ 9 permissive); Sutter Corp. v. P & P Indus., Inc., 125 F. 3d 914, 918-920 (CA5 1997) (§§9 and 10 permissive); P & P Indus., Inc. v. Sutter Corp., 179 F. 3d 861, 869-870 (CA10 1999) (§§9 and 10 permissive); Apex Plumbing Supply, Inc. v. U S. Supply Co., 142 F. 3d 188, 192 (CA4 1998) (§9 permissive); Nordin v. Nutri/System, Inc., 897 F. 2d 339, 344 (CA8 1990) (§ 9 permissive), with Central Valley Typographical Union No. 46 v. McClatchy Newspapers, 762 F. 2d 741, 744 (CA9 1985) (§ 10 mandatory); Island Creek Coal Sales Co. v. Gainesville, 729 F. 2d 1046, 1049-1050 (CA6 1984) (§ 9 mandatory); Sunshine Beauty Supplies, Inc. v. United States District Court, Central Dist. of Cal., 872 F. 2d 310, 312 (CA9 1989) (§§ 9 and 10 mandatory); United States ex rel. Chicago Bridge & Iron Co. v. Ets-Hokin Corp., 397 F. 2d 935, 939 (CA9 1968) (§ 10 mandatory). We reverse. HH H-< Section 9 of the FAA governs venue for the confirmation of arbitration awards: “If the parties in their agreement have agreed that a judgment of the court shall be entered upon the award made pursuant to the arbitration, and shall specify the court, then at any time within one year after the award is made any party to the arbitration may apply to the court so specified for an order confirming the award, and thereupon the court must grant such an order unless the award is vacated, modified, or corrected as prescribed in sections 10 and 11 of this title. If no court is specified in the agreement of the parties, then such application may be made to the United States court in and for the district within which such award was made.” 9 U. S. C. §9. Section 10(a), governing motions to vacate arbitration awards, provides that “the United States court in and for the district wherein" } ]

[ { "docid": "3802304", "title": "", "text": "general rule that the United States does not lose its revenue because of the erroneous ruling of an administrative official. The Commissioner may even change his ruling and not be estopped. United States v. La Societe Francaise De Ben. Mut., 9 Cir., 1945, 152 F.2d 243; Chiquita Mining Co. v. Commissioner, 9 Cir., 1945, 148 F.2d 306; Automobile Club of Michigan v. Commissioner, 353 U.S. 180, 77 S.Ct. 707, 1 L.Ed.2d 746. The Commissioner of Internal Revenue is not estopped from changing his interpretation of law creating a tax liability where his change in position corrects a mistake of law. Landau v. Riddell, 9 Cir., 1958, 255 F.2d 252. The cases on which appellant relies are based on factual backgrounds where the government attempted to change its position and repudiate a status and accepted relationship which it had established with the taxpayer. The distinction between the correction of a mistake of law and the attempted change in status arrived at between the taxpayer and the Commissioner is clearly established in Automobile Club of Michigan v. Commissioner, supra. Cases such as Lesavoy Foundation v. Commissioner, 3 Cir., 1956, 238 F.2d 589, 594, cited by appellant, are of no assistance. In that case' the Commissioner had actually issued a certificate of exemption to the taxpayer some years before the attempted imposition of the tax. We quote from the opinion: “We think further that the bounds of permissible discretion were exceeded when the Commissioner changed his mind' as to the exemption to be granted this-foundation and made it liable for a tax bill so large as to wipe it out of existence.” Such cases are of no benefit to appellant. III. Appellant argues that in the ease of an ambiguity as to whether the tax is one on the sale or a tax per se on the manufacturer, the doubt should be resolved against the government and in fávor of the appellant. We have already decided that it is of no consequence in this case whether the tax was on the sale or on the manufacture. All of the articles subject to the" } ]

[ { "docid": "3520026", "title": "", "text": "merely because the Commissioner entertained a different view or change of opinion in 1957, or a “matured and better judgment” of the same factual situation which existed in 1945. Woodworth v. Kales, supra; H. S. D. Co. v. Kavanagh, supra. 11. The change of position by the Commissioner of Internal Revenue, first made known to taxpayer in January 1957, denying borrowed capital treatment to the funds raised by certificates of deposit issued by taxpayer to holders for the purpose of raising money to carry on its business, and his action in making an individual, retroactive and discriminatory application of such change of position to taxpayer, while allowing borrowed capital treatment to like funds of The Economy Savings & Loan Company which was identically organized, supervised and operated, constituted inequitable conduct by the Commissioner, if not an unlawful abuse of discretion within the meaning of Section 7805(b) of the Internal Revenue Code of 1954, 26 U.S.C.A. § 7805(b). Lesavoy Foundation v. Commissioner, 3 Cir., 1956, 238 F.2d 589, 591, 592; Automobile Club of Michigan v. Commissioner, 1957, 353 U.S. 180, 185, 77 S.Ct. 707, 1 L.Ed.2d 746. 12. Taxpayer is entitled to judgment against the defendant in the sum of $799,543.95, with interest on $76,161.13 at 6% per annum computed from December 4, 1952, on $130,030.38 at 6% per annum computed from May 6, 1953, and on $593,352.44 at 6% per annum computed from November 21, 1957, and for its allowable costs." }, { "docid": "13934692", "title": "", "text": "the commissioner from retroactively applying his determination for the tax years 1960-62. The pertinent facts and relevant legal principles are discussed in detail in the district judge’s opinion. After careful examination, we find ourselves in. agreement with that opinion and the judgment will be affirmed for the reasons there set forth. The taxpayer argues with some persuasiveness that, as a matter of fairness, the commissioner’s determination should have been given prospective application'only in light of his acquiescence in taxpayer’s method of reporting its income for many years. However, the commissioner “may prescribe the extent, if any, to which any ruling or regulation, relating to the internal revenue laws, shall be applied without retroactive effect.” 26 U.S.C. § 7805(b). The commissioner is not estopped to correct a mistake of law and by § 7805(b) Congress has given him broad discretion in determining when to apply his corrections retroactively. Dixon v. United States, 381 U.S. 68, 85.S.Ct. 1301, 14 L. Ed.2d 223 (1965); Automobile Club of Michigan v. Commissioner of Internal Revenue, 353 U.S. 180, 77 S.Ct. 707, 1 L.Ed.2d 746 (1957). See Fruehauf Corp. v. Commissioner of Internal Revenue, 356 F.2d 975 (6th Cir. 1966), cert. denied, 385 U.S. 822, 87 S.Ct. 51, 17 L.Ed.2d 60. We cannot say in the circumstances here shown that the commissioner abused his discretion. Judgment affirmed." }, { "docid": "9839318", "title": "", "text": "and here we are dealing with the retroactive application of a regulation. The retroactivity of treasury regulations is governed by I.R.C. § 7805(b), which states: The Secretary may prescribe the extent, if any, to which any ruling or regulation, relating to the internal revenue laws, shall be applied without retroactive effect. Clearly Congress has determined that treasury regulations are presumed to apply retroactively. The extent to which newly promulgated regulations shall not apply retroactively is a matter of discretion left to the Secretary. Automobile Club of Michigan v. Commissioner, 353 U.S. 180, 184-85, 77 S.Ct. 707, 709-11, 1 L.Ed.2d 746, reh’g denied, 353 U.S. 989, 77 S.Ct. 1279, 1 L.Ed.2d 1147 (1957). The amici contend that the Secretary abused his discretion under section 7805(b) in failing to limit the period of retroactivity. In support of this position, the amici cite Gehl Co. v. Commissioner, 795 F.2d 1324 (7th Cir.1986); LeCroy Research Sys. Corp. v. Commissioner, 751 F.2d 123 (2d Cir.1984); and CWT Farms, Inc. v. Commissioner, 755 F.2d 790 (11th Cir.1985), cert. denied, 477 U.S. 903, 106 S.Ct. 3271, 91 L.Ed.2d 562 (1986). These cases, however, are distinguishable from the facts of this case. All of the cases cited by the amici involved a prior express representation by the Commissioner in a DISC Handbook that the regulations, when adopted, would apply prospectively only. In CWT Farms, the court of appeals stated that “[a]n abuse of discretion may be found where retroactive regulation alters settled prior law or policy upon which the taxpayer justifiably relied and if the change causes the taxpayer to suffer inordinate harm.” 755 F.2d at 802. The courts of appeals in these three cases found that the Commissioner abused his discretion by applying the regulations retroactively on the basis of their finding that the promise in the Handbook was binding. Here, there was no such promise by the Commissioner regarding Treas. Reg. § 1.267(a)-3. Moreover, the taxpayer had adequate notice within a reasonable time that regulations would be forthcoming which could alter the tax treatment of its interest deductions. Section 267(a)(2) was enacted on July 18, 1984," }, { "docid": "1419832", "title": "", "text": "of the Law to Taxpayer Taxpayer argues that the Service is estopped from denying the deduction in question because of taxpayer’s possible detrimental reliance on the misleading Revenue Ruling and I.R.S. publication. Under the applicable precedents, this alleged reliance was not sufficient to estop the Service from collecting tax properly due under the Internal Revenue Code. I.R.C. § 7805(b) (1976) establishes a presumption that rulings will be retroactive unless otherwise specified: The Secretary may prescribe the extent, if any, to which any ruling or regulation, relating to the internal revenue laws, shall be applied without retroactive effect. Id.; see Anderson, Clayton & Co. v. United States, 562 F.2d 972, 979 (5th Cir.1977), cert. denied, 436 U.S. 944, 98 S.Ct. 2845, 56 L.Ed.2d 785 (1978). This court has held that “estoppel should be applied against the Government with utmost caution and restraint.” Schuster v. Commissioner, 312 F.2d 311, 317 (9th Cir.1962). The Supreme Court has held that “[t]he doctrine of equitable estoppel is not a bar to the correction by the Commissioner of a mistake of law.” Automobile Club of Michigan v. Commissioner, 353 U.S. 180, 183, 77 S.Ct. 707, 709, 1 L.Ed.2d 746, 750 (1957) (footnote omitted); accord Martin’s Auto Trimming, Inc. v. Riddell, 283 F.2d 503, 506 (9th Cir.1960) (“[t]he Commissioner may even change his ruling and not be es-topped.”). Automobile Club of Michigan construed section 7805(b) to authorize the Commissioner to apply rulings retroactively as long as such application is not an abuse of discretion. 353 U.S. at 184-85, 77 S.Ct. at 710, 1 L.Ed.2d at 750-51. The Court explained this rule in Dixon v. United States, 381 U.S. 68, 85 S.Ct. 1301, 14 L.Ed.2d 223 (1965): This principle is no more than a reflection of the fact that Congress, not the Commissioner, prescribes the tax laws.... [T]he Commissioner’s acquiescence in an erroneous decision, published as a ruling, cannot in and of itself bar the United States from collecting a tax otherwise lawfully due. 381 U.S. at 73, 85 S.Ct. at 1304, 14 L.Ed.2d at 227. The taxpayer in Dixon had purchased notes in reliance on the Commissioner’s" }, { "docid": "23149705", "title": "", "text": "prevent the Commissioner from changing his position to correct an error of law. The principal case in this area is Automobile Club of Michigan v. Commissioner of Internal Revenue, 353 U.S. 180, 77 S.Ct. 707, 1 L.Ed.2d 746, reh. denied, 353 U.S. 989, 77 S.Ct. 1279, 1 L.Ed.2d 1147 (1957). The Supreme Court there held that the Commissioner of Internal Revenue was not estopped from applying the revocation of a ruling retroactively, since the doctrine of equitable estoppel is not a bar to the correction by the Commissioner of a mistake of law. In 1950, when the ruling was issued to Section III, the statute (Section 117(m) of the Internal Revenue Code of 1939) had been in effect for less than a month. More than 2 years elapsed before the Internal Revenue Bureau issued extensive regulations interpreting the new section. In addition, there were a number of court decisions which resolved legal problems that arose in applying the section with respect to FHA corporations. Thus by 1959, when the deficiencies against plaintiffs were assessed, the Commissioner knew a great deal more about the law than he did when the 1950 ruling was issued. Under these circumstances, we hold that the Commissioner’s change was a change in legal opinion which corrected an error of law. Plaintiffs’ final contention is that when the Commissioner of Internal Revenue decided to honor the ruling issued to Section III in behalf of that corporation only, the retroactive application of the Commissioner’s change in position as to the shareholders in the other corporations was an unlawful discrimination between similarly situated taxpayers and an abuse of the Commissioner’s discretion. We think this issue must be decided adversely to plaintiffs in view of the rule announced in a number of cases which have considered the question. Weller v. Commissioner of Internal Revenue, 270 F.2d 294 (3d Cir.1959), cert. denied, 364 U.S. 908, 81 S.Ct. 269, 5 L.Ed.2d 223; Estate of Bennett v. Commissioner of Internal Revenue, P. H. Memo. T.C. para. 60253 (1960); Gerstell v. Commissioner, P. H. Memo. T.C. para. 62181 (1962), Aff’d, 319 F.2d 131 (3d" }, { "docid": "15857675", "title": "", "text": "upon for that purpose.” The Supreme Court has held that such rulings are administrative in nature and do not have the force of law although they may be useful in discerning precedent and in interpreting the Internal Revenue Code and regulations. Dixon v. U.S., 381 U.S. 68, 73, 85 S.Ct. 1301, 1304, 14 L.Ed.2d 223 (1965). See also Washington State Dairy Products Comm’n v. U.S., 685 F.2d 298, 300 (9th Cir.1982); Redwing Carriers, Inc. v. Tomlinson, 399 F.2d 652, 657 (5th Cir.1968). To encourage taxpayers to “rely upon such rulings in determining the rule applicable to their own transactions” the I.R.S. has reassured taxpayers that “Revenue Rulings published in the Internal Revenue Bulletin ordinarily are not revoked or modi fied retroactively.” Id. The I.R.S. Revenue Procedures, however, caution that a ruling may be modified or revoked retroactively “at any time” unless “the Commissioner or his delegate exercises the discretionary power under section 7805(b) of the Code to limit the retroactive application of the ruling.” Rev.Proc. 67-1, 1967-1 Cum. Bull, at 552-553. Although Revenue Ruling 80-173 does not expressly state whether it is to have retroactive effect, in the absence of limitations imposed by statute or the I.R.S., such rulings generally are entitled to retroactive application. The language of I.R.C. § 7805(b) presumes that these agency rulings will be given retroactive effect unless otherwise specified. The Supreme Court has upheld the retroactive application of revenue rulings on the ground that the I.R.S. should not be estopped from correcting a “mistake of law,” Automobile Club of Michigan v. Commissioner, 353 U.S. 180, 183, 77 S.Ct. 707, 709, 1 L.Ed.2d 746 (1957), even though a taxpayer may have relied to his detriment on a prior agency ruling, Dickman v. Commissioner, — U.S. -, 104 S.Ct. 1086, 1094, 79 L.Ed.2d 343 (1984). This position reflects the fact that Congress, not the I.R.S., is charged with promulgating the tax laws. The Commissioner of the I.R.S. is simply a delegate of the Secretary of the Treasury whose function is to implement the law. Automobile Club of Michigan v. Commissioner, supra, 353 U.S. at 184, 77 S.Ct." }, { "docid": "21232227", "title": "", "text": "(C.A. 6) 287 F.2d 612.” The authority for making the revocation of the Bismarck and Wirthman letters prospective only is derived from 26 U.S.C.A. § 7805(b), wherein it is provided: “(b) Retroactivity of regulations or rulings. — The Secretary [of the Treasury] or his delegate may prescribe the extent, if any, to which any ruling or regulation, relating to the internal revenue laws, shall be applied without retroactive effect.” Appellee argues that: “The Unlawful Discrimination Between Similarly-Situated Taxpayers, As Found by the District Court, Was Such That the Judgment of the District Court Was Not Erroneous.” We do not agree. Ordinarily, the Commissioner of Internal Revenue or his duly authorized subordinates act within their power when revoking an erroneous private ruling with or without retroactive effect. See, Dixon v. United States, 1965, 381 U.S. 68, 72-73, 80, 85 S.Ct. 1301, 14 L.Ed.2d 223; Automobile Club of Michigan v. Commissioner, 1957, 353 U.S. 180, 183-184, 77 S.Ct. 707, 1 L.Ed.2d 46, rehearing denied, 353 U.S. 989, 77 S.Ct. 1279, 1 L.Ed.2d 1147, and the cases cited therein at f. n. 7, page 183, 77 S.Ct. 707. The evidence does not show that the appellee herein is being treated any worse or any differently from other taxpayers in his position who did not request or receive private letter rulings. Taxpayers without rulings are entitled only to be taxed the same as other taxpayers without rulings. See, e. g., Bornstein v. United States, Ct.Cl., 1965, 345 F.2d 558, 563-564; Weller v. Commissioner, 3 Cir., 1959, 270 F.2d 294, 298-299, certiorari denied, 364 U.S. 908, 81 S.Ct. 269, 5 L.Ed.2d 223; Goodstein v. Commissioner, 1 Cir., 1959, 267 F.2d 127, 132. The fact that the private Bismarck letter was published by the Commerce Clearing House is not of decisive consequence. In Goodstein, supra, the taxpayer had seen other private but officially unpublished rulings and this factor was not enough to allow him (and, inferentially, all other taxpayers in his position) to rely on the said private rulings. As a practical matter, officials of the Internal Revenue Service are themselves not bound for precedent purposes" }, { "docid": "3520025", "title": "", "text": "issuance of certificates of deposit because the taxpayer, in good faith, had filed its federal income and excess profits tax returns and had treated such funds as borrowed capital, in reliance upon and being lured by the acquiescence of the Commissioner of Internal Revenue in the conclusion reached in the Economy case and his official pronouncements in connection therewith (Finding of Fact No. 18), and incurred substantial prejudice in the way of large interest charges and the failure to set up reserves, directly due to the change of position of the Commissioner of Internal Revenue. Woodworth v. Kales, 6 Cir., 1928, 26 F.2d 178, 181; H. S. D. Co. v. Kavanagh, 6 Cir., 1951, 191 F.2d 831, 846. 10. The doctrine of equitable estoppel does not bar correction by the Commissioner of Internal Revenue of a mistake of law, but in this case it does not appear that there was a mistake of law, a mistake of fact, or other lawful excuse for the Commissioner to change his position, to the prejudice of the taxpayer, merely because the Commissioner entertained a different view or change of opinion in 1957, or a “matured and better judgment” of the same factual situation which existed in 1945. Woodworth v. Kales, supra; H. S. D. Co. v. Kavanagh, supra. 11. The change of position by the Commissioner of Internal Revenue, first made known to taxpayer in January 1957, denying borrowed capital treatment to the funds raised by certificates of deposit issued by taxpayer to holders for the purpose of raising money to carry on its business, and his action in making an individual, retroactive and discriminatory application of such change of position to taxpayer, while allowing borrowed capital treatment to like funds of The Economy Savings & Loan Company which was identically organized, supervised and operated, constituted inequitable conduct by the Commissioner, if not an unlawful abuse of discretion within the meaning of Section 7805(b) of the Internal Revenue Code of 1954, 26 U.S.C.A. § 7805(b). Lesavoy Foundation v. Commissioner, 3 Cir., 1956, 238 F.2d 589, 591, 592; Automobile Club of Michigan v. Commissioner," }, { "docid": "11463401", "title": "", "text": "novo proceedings.” (citing Lewis v. Reynolds, 284 U.S. 281, 283, 52 S.Ct. 145, 76 L.Ed. 293 (1932))). Accordingly, the court’s determination of the plaintiffs tax liability in that context “does not require (or even ordinarily permit) th[e] court to review findings or a record previously developed at the administrative level.” Id. at 6. When the IRS seeks to revoke tax-exempt status retroactively, however, it faces certain restrictions. Under 26 U.S.C. § 7805(b), the Secretary of Treasury “may prescribe the extent, if any, to which any ruling (including any judicial decision or any administrative determination other than by regulation) relating to the internal revenue laws shall be applied without retroactive effect.” 26 U.S.C. § 7805(b)(8) (2006). The Supreme Court has held that the IRS Commissioner has broad discretion, under section 7805(b) and its predecessor, to decide whether to revoke a ruling retroactively and that such a determination is reviewable by the courts only for abuse of that discretion. Automobile Club of Michigan v. Comm’r, 353 U.S. 180, 184, 77 S.Ct. 707, 1 L.Ed.2d 746 (1957); see also Virginia Educ. Fund v. Comm’r, 85 T.C. 743, 752, 1985 WL 15410 (1985) aff'd, 799 F.2d 903 (4th Cir. 1986). Treasury Regulation 601.201(n)(6)(i), however, limits the Commissioner’s discretion to revoke retroactively a favorable ruling on exempt status: The revocation or modification may be retroactive if the organization omitted or misstated a material fact, operated in a manner materially different from that originally represented, or engaged in a prohibited transaction of the type described in subdivision (vii) of this sub-paragraph [which addresses diverting monies from the exempt purpose]. In any event, revocation or modification will ordinarily take effect no later than the time at which the organization received written notice that its exemption ruling [or] determination letter might be revoked or modified. § 601.201(n)(6)(i) (emphasis added); see also Buzzetta Constr. Corp. v. Comm’r, 92 T.C. 641, 649, 1989 WL 26384 (1989) (“The Commissioner ... has limited his own dis cretion to revoke retroactively a favorable ruling.”); Prince Edward Sch. Found. v. Comm’r, 478 F.Supp. 107, 113 (D.D.C. 1979) (concluding that retroactive revocation of tax-exempt status" }, { "docid": "11707824", "title": "", "text": "position to correct an error of law. The principal case in this area is Automobile Club of Michigan v. Commissioner, 353 U.S. 180, reh. denied, 353 U.S. 989 (1951). The Supreme Court there held that the Commissioner of Internal Revenue was not estopped from applying the revocation of a ruling retroactively, since the doctrine of equitable estoppel is not a bar to the correction by the Commissioner of a mistake of law. In 1950, when the ruling was issued to Section III, the statute (Section 117(m) of the Internal Revenue Code of 1939) had 'been in effect for less than a month. More than 2 years elapsed before the Internal Revenue Bureau issued extensive regulations interpreting the new section. In addition, there were a number of court decisions which resolved legal problems that arose in applying the section with respect to FHA corporations. Thus by 1959, when the deficiencies against plaintiffs were assessed, the Commissioner knew a great deal more about the law than he did when the 1950 ruling was issued. Under these circumstances, we hold that the Commissioner’s change was a change in legal opinion which corrected an error of law. Plaintiffs’ final contention is that when the Commissioner of Internal Revenue decided to honor the ruling issued to Section III in behalf of that corporation only, the retroactive application of the Commissioner’s change in position as to the shareholders in the other corporations was an unlawful discrimination between similarly situated taxpayers and an abuse of the Commissioner’s discretion. We think this issue must he decided adversely to plaintiffs in view of the rule announced in a number of cases which have considered the question. Weller v. Commissioner, 270 F. 2d 294 (3d Cir. 1959), cert. denied, 364 U.S. 908; Estate of Bennett v. Commissioner, P. H. Memo. T.C. para. 60253 (1960); Gerstell v. Commissioner, P. H. Memo. T.C. para. 62181 (1962), Aff'd, 319 F. 2d 131 (3d Cir. 1963); Goodstein v. Commissioner, 267 F. 2d 127 (1st Cir. 1959). In each of the cited cases, the situation of the plaintiff, insofar as taxability was concerned, was identical" }, { "docid": "16672921", "title": "", "text": "agent. The Handbook did not expressly refer to commissions receivable. The IRS promised that it would follow the rules explained in the Handbook until such rules were modified ‘in regulations or other Treasury publications. ’ The Handbook provided that any such modifications adverse to taxpayers would be applied only prospectively. On September 21, 1972, the Commissioner proposed section 1.994-1(e)(3), Income Tax Regs., 37 Fed.Reg. 19625, 19627-19628, and on October 4, 1972, the Commissioner proposed section 1.993- 2(d)(2), Income Tax Regs., 37 Fed. Reg. 20853, 20858. These proposed regulations were the first pronouncements concerning the treatment of commissions receivable, and they both contained the 60-day payment rule. Proposed section 1.994- l(e)(3) was finally adopted on September 29, 1976 (T.D. 7435, 1976-2 C.B. 238) and contained the 60-day rule; proposed section 1.993-2(d)(2) was finally adopted on October 14, 1977 (T.D. 7514, 1977-2 C.B. 266), and incorporated the 60-day rule by reference to section 1.994-1(e)(3). Section 1.993-2(d)(2), Income Tax Regs., was made applicable to taxable years ending after December 31, 1971. 79 T.C. at 1067-1068 (emphasis added). Internal Revenue Regulations are presumed to have retroactive effect. Anderson, Clayton & Co. v. United States, 562 F.2d 972 (5th Cir.), cert. denied, 436 U.S. 944, 98 S.Ct. 2845, 56 L.Ed.2d 785 (1978). See 26 U.S.C.A. § 7805(b) (1967). Under section 7805(b), the Secretary of the Treasury has broad discretion to limit the retroactive application of Treasury rulings and regulations. “The decision to make a ruling or regulation retroactive will stand unless it constitutes an abuse of discretion.” Wendland v. Commissioner of Internal Revenue, 739 F.2d 580, 581 (11th Cir.1984) (citing Automobile Club of Michigan v. Commissioner, 353 U.S. 180, 184, 77 S.Ct. 707, 710, 1 L.Ed.2d,746 (1957)). An abuse of discretion may be found where the retroactive regulation alters settled pri- or law or policy upon which the taxpayer justifiably relied and if the change causes the taxpayer to suffer inordinate harm. Farms and International' argue that an abuse of discretion occurred because the Commissioner made an explicit promise in the Handbook that (1) the Internal Revenue Service would follow the rules and procedures set" }, { "docid": "3578746", "title": "", "text": "Oct. 29, 1976. A copy of the proposed amendments was attached to the news release. The proposed amendments were published in the Federal Register on November 2,1976, with an announcement that public hearings would be held on November 30, 1976, and that written comments must be submitted by November 23, 1976. These announcements were also published in the November 15, 1976, issue of the Internal Revenue Bulletin. The final version of the amendments (with no significant changes from the proposed amendments) was published in the Federal Register on December 19, 1977. Also on December 19, 1977, Rev.Rul. 77-489, 1977-2 C.B. 177, announced the revocation of Rev.Rul. 70-20 and Rev.Rul. 74-214. DISCUSSION I. I.R.C. § 7805(b) gives the Secretary of the Treasury the discretion to limit the retroactive effect of treasury rules or regulations. Thus, treasury regulations are ordinarily retroactive to the effective date of the statute to which they relate, unless the Secretary limits such retroactive application. See Manocchio v. Commissioner, 710 F.2d 1400, 1403 (9th Cir.1983) (§ 7805(b) establishes presumption that rulings are retroactive). The decision of the Commissioner, the delegate of the Secretary, to make a ruling or regulation retroactive is reviewed for an abuse of discretion. Automobile Club of Michigan v. Commissioner, 353 U.S. 180, 184, 77 S.Ct. 707, 710, 1 L.Ed.2d 746 (1957) (upheld retroactive revocation of ruling exempting club from income taxes); Manocchio, 710 F.2d at 1402 (upheld retroactive application of a revenue ruling disallowing deduction of reimbursed flight training expenses). A. Courts have declined to give retroactive effect to regulations that change settled law. E.g., Helvering v. R.J. Reynolds Tobacco Co., 306 U.S. 110, 59 S.Ct. 423, 83 L.Ed. 536 (1939) (Treasury cannot retroactively amend long-standing regulation, which acquired force of law when underlying statute was repeatedly reenacted by Congress without change). Contrary to Redhouse’s contention that the regulations have permitted advanced royalty deductions such as his since 1940 based on statutes going back before the 1939 codification of the internal revenue laws, none of these statutes or regulations favored the taxpayer’s position. Prior to the 1977 amendment, regulation section 1.612-3(b) and its ancestors" }, { "docid": "21232234", "title": "", "text": "totality of the circumstances surrounding the handing down of a ruling — including the comparative or differential effect on the other taxpayers in the same class. ‘The Commissioner cannot tax one and not tax another without some rational basis for the difference.’ United States v. Kaiser, 363 U.S. 299, 308, 80 S.Ct. 1204, 1210, 4 L.Ed.2d 1233 (1960) (Frankfurter, J., concurring). This factor has come to be recognized as central to the administration of the section. See Automobile Club of Michigan v. Commissioner of Internal Revenue, 353 U.S. 180, 185-186, 77 S.Ct. 707, 1 L.Ed.2d 746 (1957); Exchange Parts Co. v. United States, 279 F.2d 251, 254, 150 Ct.Cl. 538, 543 (1960); Connecticut Ry. & Lighting Co. v. United States, 142 F.Supp. 907, 908-909, 135 Ct.Cl. 650, 653-654 (1956); Wolinsky v. United States, 271 F.2d 865, 868 (C.A. 2, 1959); Weller v. Commissioner of Internal Revenue, 270 F.2d 294, 299 (C.A. 3, 1959), cert. denied, 364 U.S. 908, 81 S.Ct. 269, 52 L.Ed.2d [sic] 223 (1960); Goodstein v. Commissioner of Int ernal Revenue, 267 F.2d 127, 132 (C.A. 1, 1959); City Loan & Savings Co. v. United States, 177 F.Supp. 843, 851 (N.D.Ohio, 1959), aff’d, 287 F.2d 612, 616 (C.A. 6, 1961). Equality of treatment is so dominant in our understanding of justice that discretion, where it is allowed a role, must pay the strictest heed. ****** «* * * when we examine the agreed facts, we cannot escape holding that there was a clear abuse, that the circumstances compelled the Service to confine its ruling (when it was finally given) to the future period for which Remington Rand’s computers were to be held taxable. * * * ****** “This history exposes a manifest and unjustifiable discrimination against the taxpayer.” (Emphasis supplied.) As is apparent from the italicized portions of the above quotation, the Court of Claims was limiting itself in I.B.M. to the “totality of the circumstances” there involved. That I.B.M. was not intended to be a blanket ruling is clearly evidenced in two later cases decided by the Court of Claims. Those decisions are Knetsch v. United States," }, { "docid": "23217213", "title": "", "text": "a series of individual rulings, taxpayers rely upon Automobile Club of Michigan v. Commissioner of Internal Revenue, 1957, 353 U.S. 180, 77 S.Ct. 707, 1 L.Ed.2d 746, and our case of Lesavoy Foundation v. Commissioner of Internal Revenue, 3 Cir., 1956, 238 F.2d 589. Reliance upon the Lesavoy case is misplaced, for it merely determined that the Commissioner had exceeded his permissible discretion in retroactively withdrawing a ruling issued to a particular taxpayer who had not estopped himself. The Supreme Court in Automobile Club of Michigan v. Commissioner of Internal Revenue, supra, sets forth the standard which we must apply in questions of this nature. In that case, the petitioner-automobile club had received a ruling of exemption from the Commissioner in 1934 which was reconfirmed in 1938. In 1945, applying a new interpretation of the revenue laws rendered by the General Counsel, the Commissioner revoked this individual ruling and applied his revocation retroactively to tax years 1943 and 1944. The revocations applied to exemptions issued to all automobile clubs and the Supreme Court stated, 353 U.S. at page 186, 77 S.Ct. at page 711, “that the Commissioner, having dealt with petitioner upon the same basis as other automobile clubs, did not abuse his discretion.” Similarly in the instant cases, the petitioners have been treated in the same manner as all other taxpayers. Petitioners contend, however, that although the revenue ruling fails to indicate any limitation on its application, agents of the Treasury have stated to Congress that it does not intend to apply the revenue ruling retroactively to individuals who have previously been issued rulings. We need not determine whether such action if carried out would be an abuse of discretion, for petitioners are not in the same position as those parties who have been issued rulings. They are entitled to the same treatment as all other taxpayers similarly situated, i.e., without rulings, no more and no less. This the Commissioner has afforded them. Petitioners’ further arguments are adequately disposed of by Automobile Club of Michigan v. Commissioner of Internal Revenue, supra. We are not unmindful of the decision recently" }, { "docid": "3652651", "title": "", "text": "20. 2 — Retroactive Revocation Issue By letter dated May 1, 1947, the Commissioner informed Foundation that it was exempt from federal income tax under the provisions of § 101(6) of the Internal Revenue Code and that “accordingly) you will not be required to file income tax returns unless you change the character of your organization, the purposes for which you were organized, or your method of operation. Any such changes should be reported immediately to the collector of internal revenue for your district in order that their effect upon your exempt status may be determined.” As previously stated, the Commissioner revoked this tax exemption ruling by letter to Foundation dated August 24, 1954. Thereafter, the Commissioner applied the revocation ruling retroactively. The Commissioner is empowered to prescribe the extent to which any ruling made by him shall be applied retroactively. Section 7805(b) of the 1954 Code provides: “The Secretary or his delegate may prescribe the extent, if any, to which any ruling or regulation, relating to the internal revenue laws, shall be applied without retroactive effect.” This section is substantially the same as its predecessor — § 3791(b) of the 1939 Code. In Automobile Club of Mich. v. Commissioner, 353 U.S. 180, 184, 77 S. Ct. 707, 1 L.Ed.2d 746 (1957), the Supreme Court stated that it is clear from the language of the foregoing statute and its legislative history that Congress thereby confirmed the authority of the Commissioner to correct any ruling, regulation or treasury decision retroactively, but empowered him, in his discretion, “to limit retroactive application to the extent necessary to avoid inequitable re-É suits.” “The Commissioner’s action may not be disturbed unless, in the circumstances of this case, the Commissioner abused the discretion vested in him by § 3791(b) of the 1939 Code.” 353 U.S. at 184, 77 S.Ct. at 710, 1 L.Ed.2d 746. See and compare, Birmingham Business College, Inc. v. C. I. R., 5 Cir., 276 F.2d 476 (1960); Lesavoy Foundation v. Commissioner of Internal Revenue, 3 Cir., 238 F.2d 589 (1956); Cleveland Chiropractic College v. C. I. R., supra, 8 Cir., 312 F.2d" }, { "docid": "23217212", "title": "", "text": "the very number of individual rulings made by the Commissioner established a practice, a course of conduct, and that a retroactive change would be an arbitrary exercise of the authority committed to the Commissioner by Congress. The first contention has little substance or reason to support it, for it is just another way of stating that anyone who sees a ruling should be allowed to rely on it. Even with respect to rulings published in the Internal Revenue Bulletin, the Supreme Court said in Helvering v. New York Trust Co., 1934, 292 U.S. 455, 468, 54 S.Ct. 806, 810, 78 L.Ed. 1361: “* * * The rulings * * * ‘have none of the force or effect of Treasury Decisions and do not commit the Department to any interpretation of the law.’ See cautionary notice published in the bulletins containing these rulings.” Certainly unpublished rulings can be given no greater effect. In support of their second contention that it would be an abuse of discretion for the Commissioner to retroactively change his practice established by a series of individual rulings, taxpayers rely upon Automobile Club of Michigan v. Commissioner of Internal Revenue, 1957, 353 U.S. 180, 77 S.Ct. 707, 1 L.Ed.2d 746, and our case of Lesavoy Foundation v. Commissioner of Internal Revenue, 3 Cir., 1956, 238 F.2d 589. Reliance upon the Lesavoy case is misplaced, for it merely determined that the Commissioner had exceeded his permissible discretion in retroactively withdrawing a ruling issued to a particular taxpayer who had not estopped himself. The Supreme Court in Automobile Club of Michigan v. Commissioner of Internal Revenue, supra, sets forth the standard which we must apply in questions of this nature. In that case, the petitioner-automobile club had received a ruling of exemption from the Commissioner in 1934 which was reconfirmed in 1938. In 1945, applying a new interpretation of the revenue laws rendered by the General Counsel, the Commissioner revoked this individual ruling and applied his revocation retroactively to tax years 1943 and 1944. The revocations applied to exemptions issued to all automobile clubs and the Supreme Court stated, 353" }, { "docid": "17025435", "title": "", "text": "to jury trial though so entitled if suit were against a Collector. By the Act of July 30, 1954, 68 Stat. 589, 28 U.S.C.A. §§ 1346(a) (1), 2402, Congress removed both these restrictions on direct actions brought against the Government. There would appear now to be no reason for the preservation of the fiction. I differ from my colleagues in their interpretation of Hammond-Knowlton v. United States, supra. I believe that a careful reading of that opinion, particularly at pages 194-201, will reveal that this court there vigorously rejected exactly the argument which the Government has advanced in the present case and which my colleagues here accept. For an interpretation similar to mine, see Dell v. American Export Lines, D.C.S.D.N.Y.1956, 142 F.Supp. 511, 513-514. The judgment below is reversed. . The Commissioner’s power to retroactively correct earlier rulings would appear to be severely limited when formerly approved pension plans are the subject of later disapproving rulings. See H. S. D. Co. v. Kavanagh, 6 Cir., 1951, 191 F.2d 831, 843-846; Time Oil Co. v. Commissioner, 9 Cir., 1958, 258 F.2d 237. These cases appear to say that the Commissioner has attempted an improper correction of a mistaken inference of fact as opposed to a proper correction of a mistake of law. See Automobile Club of Michigan v. Commissioner, 1957, 353 U.S. 180, 184, 77 S.Ct. 707, 1 L.Ed.2d 746, rehearing denied 353 U.S. 989, 77 S.Ct. 1279, 1 L.Ed.2d 1147. Inasmuch as taxpayers undertake extensive activities in reliance upon the Commissioner’s rulings approving a pension plan it would seem preferable to regard these cases as involving an abuse of discretion, but see Automobile Club of Michigan v. Commissioner, supra, where the Supreme Court holds that the doctrine of equitable estoppel does not apply to the Commissioner. . It is dearly established that an action for tax refund cannot be maintained against a successor in office to the collector to whom the taxes were paid. Smie-tanka v. Indiana Steel Co., 1921, 257 U.S. 1, 42 S.Ct. 1, 66 L.Ed. 99; Buhl v. Menninger, 6 Cir., 1958, 251 F.2d 659. It does" }, { "docid": "2317466", "title": "", "text": "until more than three and one-half years after the original sales contract was entered into in the instant case), then the taxpayer herein cannot prevail. It is the position of the taxpayer that neither of the above conditions can be met.” The trial court in its findings points out that the Treasury Regulation relied upon was not promulgated until October 30, 1962, and then holds at conclusion of law No. 3 supra that the regulation cannot be retroactively applied. From all that appears in the trial court’s findings and conclusions, it declined to apply the regulation solely upon the ground that it could not be applied retroactively. Such determination is clear ly based on an erroneous view of the law. The Secretary or his delegate is given authority to adopt rules and regulations by § 7805, including the right to determine when the rule will be applied without retroactive effect. The Secretary has power to apply regulations retroactively. Dixon v. United States, 381 U.S. 68, 74, 85 S.Ct. 1301, 14 L.Ed.2d 223; Automobile Club of Michigan v. Commissioner of Internal Revenue, 353 U.S. 180, 183-184, 77 S.Ct. 707, 1 L.Ed. 2d 746; Pollack v. C. I. R., 5 Cir., 392 F.2d 409, 411; United States v. Fenix and Scisson, Inc., 10 Cir., 360 F.2d 260, 267. In Commissioner of Internal Revenue v. South Texas Lumber Co., 333 U.S. 496, 501, 68 S.Ct. 695, 698, 92 L.Ed. 831, the Court holds: “This Court has many times declared that Treasury regulations must be sustained unless unreasonable and plainly inconsistent with the revenue statutes and that they constitute contemporaneous constructions by those charged with administration of these statutes which should riot be overruled except for weighty reasons. See, e. g., Fawcus Machine Co. v. United States, 282 U.S. 375, 378, [51 S.Ct. 144, 75 L.Ed. 397.]” The trial court did not pass upon the validity of the regulation. We find nothing in the regulation inconsistent with the statute. The regulation is a reasonable interpretation of the statute when viewed in the light of the statute itself and its legislative history. In Higgins v." }, { "docid": "16672922", "title": "", "text": "Revenue Regulations are presumed to have retroactive effect. Anderson, Clayton & Co. v. United States, 562 F.2d 972 (5th Cir.), cert. denied, 436 U.S. 944, 98 S.Ct. 2845, 56 L.Ed.2d 785 (1978). See 26 U.S.C.A. § 7805(b) (1967). Under section 7805(b), the Secretary of the Treasury has broad discretion to limit the retroactive application of Treasury rulings and regulations. “The decision to make a ruling or regulation retroactive will stand unless it constitutes an abuse of discretion.” Wendland v. Commissioner of Internal Revenue, 739 F.2d 580, 581 (11th Cir.1984) (citing Automobile Club of Michigan v. Commissioner, 353 U.S. 180, 184, 77 S.Ct. 707, 710, 1 L.Ed.2d,746 (1957)). An abuse of discretion may be found where the retroactive regulation alters settled pri- or law or policy upon which the taxpayer justifiably relied and if the change causes the taxpayer to suffer inordinate harm. Farms and International' argue that an abuse of discretion occurred because the Commissioner made an explicit promise in the Handbook that (1) the Internal Revenue Service would follow the rules and procedures set forth in the Handbook until those rules and procedures are “modified” by “regulations or other Treasury publications”; and (2) that any adverse modifications would be applied only prospectively. They argue that they justifiably relied on the Handbook since the proposed regulations issued in 1972 were not “modifications” of the Handbook, and, even if they were, according to the promise of the Handbook, they should be applied only prospectively. Farms and International rely on the recent case of Lecroy Research Systems Corp. v. Commissioner, 751 F.2d 123 (2d Cir.1984) (Lecroy). The Second Circuit, in Lecroy, found that the Commissioner committed an abuse of discretion in applying the identical regulations challenged here retroactively because that court found the promise in the Handbook to be binding. The court noted that “retroactive application is permissible even where the regulation contradicts a previous Treasury publication such as the Handbook,” but observed that “the Handbook’s assurances were deliberately unusual in purporting to offer safety in the status quo and were obviously prompted by the need to render the incentives Congress intended" }, { "docid": "3620952", "title": "", "text": "normal procedures. IV. The Government alleges' that the Commissioner did not abuse his discretion in applying the revocation retroactively. Christian Echoes was notified in November of 1964 that its exempt status might be revoked. The status was formally revoked in September of 1966. The revocation was based on a review of activities during the years 1961-1963. Tax liabilities were assessed for all periods from 1961 through 1966. Section 7805(b) of the Code of 1954 gives the Commissioner the power to prescribe taxes retroactively and his discretion will not be disturbed unless it constitutes an abuse of discretion. Automobile Club of Michigan v. Commissioner of Internal Revenue, 353 U.S. 180, 77 S.Ct. 707, 1 L.Ed.2d 746 (1957). The tax may be applied retroactively where there has been a misrepresentation or omission of material facts upon which the issuance of the ruling is based. Stevens Bros. Foundation, Inc. v. Commissioner of Internal Revenue, 324 F.2d 633 (8th Cir. 1963), cert. denied 376 U.S. 969, 84 S.Ct. 1135, 12 L.Ed.2d 84 (1964); Birmingham Business College, Inc. v. Commissioner of Internal Revenue, 276 F.2d 476 (5th Cir. 1960). The facts developed on audit were materially different from the facts disclosed in the taxpayer’s original exemption application. It did not refer specifically to Christian Echoes’ substantial involvement in activities aimed at influencing legislation. Accordingly, the tax-exempt revocation was properly applied retroactively. Reversed." } ]

[ { "docid": "8005108", "title": "", "text": "the complaint to add three defendants. He is wrong. The district court had good reasons for its action. The motion was filed ten months after the cut-off date to amend pleadings, after discovery was complete, and when Sergeant Nickel’s summary judgment motion was ready for disposition. Luttrell did not explain his delay in filing the motion nor did the amended complaint include any allegations of personal responsibility by the proposed additional defendants. Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir.1995) (“To recover damages under § 1983, a plaintiff must establish that a defendant was personally responsible for the deprivation of a constitutional right.”). Last, Luttrell argues that the district court should have granted his requests for counsel. The court reasoned that the facts were relatively straightforward in this case and that Luttrell was able to present a clear complaint, conduct discovery requests, and file numerous motions. However, Luttrell asserts that he not only was a “functional illiterate,” but that he also had to rely extensively on “jailhouse lawyers” to prepare his pleadings and motions. This court reviews a district court’s denial of a motion for appointment of counsel for an abuse of discretion. Zarnes v. Rhodes, 64 F.3d 285, 288 (7th Cir.1995). Although civil litigants do not have a constitutional or statutory right to counsel, the district court has the discretion pursuant to 28 U.S.C. § 1915(e) to request attorneys to represent indigents in appropriate cases. Id. “In deciding whether .the district court abused its discretion in failing to appoint counsel, ‘the necessary inquiry is ...: given the difficulty of the case, did the plaintiff appear to be competent to try it himself and, if not, would the presence of counsel have made a difference in the outcome?’ ” Donald v. Cook County Sheriff’s Dept., 95 F.3d 548, 554 n. 1 (7th Cir.1996) (quoting Farmer v. Haas, 990 F.2d 319, 322 (7th Cir.1993)). Although a good lawyer may have done better than Luttrell, that is not the test, for if it was “district judges would be required to request counsel for every indigent litigant.” Farmer, 990 F.2d at 323." } ]

[ { "docid": "23589607", "title": "", "text": "guards, who came and took him back to the receiving area. Sergeant Richard Allen asked him what he had done to deserve placement in C Block. When Weiss replied that he was new to the jail and that Cooley had taken him directly there, Allen commented “Cooley has been here long enough — he should be smarter than that.” II Weiss’s original complaint in the action named Weddle, Fogelman, and Cooley in their individual capacities. As required by 28 U.S.C. § 1915A, the district court reviewed the complaint prior to its being docketed. The court concluded that Weiss had failed to plead facts in his claims against Weddle and Fogelman that would have shown they were “deliberately indifferent” to his safety, as required by the Eighth Amendment standards, as incorporated in the due process clause for pretrial detention cases. See, e.g., Zarnes v. Rhodes, 64 F.3d 285, 289-90 (7th Cir.1995). It therefore dismissed the claims against those two defendants, and, perhaps because those claims were dismissed before the complaint was even docketed or the defendants served, it entered no “final judgment” relating to that part of the case. After that setback, Weiss moved on July 18, 1997, for appointment of counsel under 28 U.S.C. § 1915. The court initially denied the motion because Weiss had not yet sought private counsel. Weiss then looked around, but he was unable to persuade any lawyer to take his ease. He returned on October 8, 1997, with another motion for appointment of counsel. This time, on February 26, 1998, the court denied the request on the ground that a lawyer was not required given the lack of complexity or merit to the case and Weiss’s own ability to handle it. On November 24, 1997, Cooley moved to strike the affidavit of inmate Steven Sherwood; at the same time, he moved for summary judgment. Sherwood had attested that Morgan County Jail officers knew that Estep would assault other inmates, and, worse than that, that they used Estep as a vehicle for abusing prisoners. Sherwood also claimed that Cooley used inmates to threaten him. In an" }, { "docid": "8889028", "title": "", "text": "corrections officers used excessive force in violation of his Eighth Amendment rights. He also alleged spoliation in defendants’ failure to download and preserve the video from the prison security cameras. After filing his complaint, Braeey requested the court’s assistance in recruiting counsel. 28 U.S.C. § 1915(e)(1). The district court concluded Braeey had made adequate efforts to find his own attorney but found the allegations sufficiently straightforward and Braeey sufficiently competent to handle the case himself. It denied the motion. Proceeding pro se, Braeey requested information relating to the destruction of the videotapes. After prison officials referred to certain prison policies in responding to Bracey’s interrogatories, Braeey requested the policies themselves. The prison refused, and the district court denied Bra-cey’s motion to compel, citing the need to preserve prison security. As trial approached, Braeey sought sanctions for spoliation of the video recording. Shortly thereafter, Braeey secured his own counsel, who renewed Bracey’s request for spoliation sanctions. The district court ultimately denied this motion, refusing the adverse inference instruction because none of the individual defendants were involved in the decision not to preserve the video. Braeey lost at trial. He now appeals both the denial of his motion to recruit counsel and the denial of his motion for spoliation sanctions. II. Discussion A. The District Court Did Not Abuse Its Discretion in Denying Bracey’s Request for Counsel District courts may ask an attorney to represent a litigant unable to pay for his own lawyer. § 1915(e)(1). To qualify, the indigent litigant must make reasonable efforts at finding counsel himself. Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir.2007) (en banc). If the litigant comes up short, then the district court must decide whether “given the difficulty of the case,” the plaintiff is “competent to try it himself.” Id. (citing Farmer v. Haas, 990 F.2d 319, 322 (7th Cir.1993)). Importantly, the district court must consider both halves of this equation — the difficulty of the case and the competence of the litigant. Id. at 660. When reviewing the district court’s determination on complexity and competency, we consider the reasonableness of the district court’s" }, { "docid": "9648778", "title": "", "text": "concluded that the remarks were improper, but that they did not go to the heart of the prosecution’s case — whether Howard abused Tamika. We do not believe that this point would have struck it as reversible error, and thus we cannot say appellate counsel’s decision not to give it a try was prejudicial. D. Last, we come to Howard’s point concerning the district court’s failure to rule on his motion for appointment of counsel, and the related point that he should have received counsel for the presentation of his habeas corpus petition. We are concerned about the “fall-between-the-cracks” sense we get about the way this motion was handled. Ordinarily, we would review a decision not to appoint counsel for abuse of discretion, Zarnes v. Rhodes, 64 F.3d 285, 288 (7th Cir.1995), but in this instance we think it preferable to give the question de novo review, since it is quite possible that there is no underlying decision to review. In general, a refusal to appoint counsel calls for reversal “only ‘if, given the difficulty of the case and the litigant’s ability, [he] could not obtain justice without an attorney, [he] could not obtain a lawyer on his own, and [he] would have had a reasonable chance of winning with a lawyer at [his] side.’ ” Winsett v. Washington, 130 F.3d 269, 281 (7th Cir.1997), quoting Forbes v. Edgar, 112 F.3d 262, 264 (7th Cir.1997) (alterations in Winsett). We apply liberal standards to this inquiry, because there is a certain circularity to the argument. An unskilled lay defendant may have trouble showing the court which of his arguments has serious legal merit, whereas a lawyer may be able to see right away which parts of the case have possibilities. In this case, Howard was able to present his Strickland arguments to the district court, and from that point, the district court’s task was to review the state proceedings in light of both Illinois law and the Sixth Amendment standard for effective counsel. Counsel could not have changed the strong evidence against Howard; he made no claim that other newly discovered" }, { "docid": "12220520", "title": "", "text": "moved again for assistance of counsel, repeating his earlier statements. He also complained that Appellees had abused discovery rules and delayed their responses. The court denied this request using the same language as the first denial and without addressing the alleged discovery abuses. After Appellees moved for summary judgment, Dewitt filed a “reply” to Appel-lees’ reply in support of summary judgment, and a request under Federal Rule of Civil Procedure 56(f) (now Rule 56(d)) for further discovery. He again begged the court .to recruit counsel so he could conduct discovery. The district court did not address Dewitt’s Rule 56(d) motion, but granted Appellees’ motion for summary judgment, in part, because Dewitt failed to show Corizon had any “official policy or custom” to delay medical treatment and because Dr. Mitcheff exercised reasoned professional judgment. Dewitt now appeals. II. ANALYSIS Though Dewitt argues the merits of the summary judgment order, we do not reach that issue because we hold that Dewitt should have had an attorney throughout the litigation. There is no right to recruitment of counsel in federal civil litigation, but a district court has discretion to recruit counsel under 28 U.S.C. § 1915(e)(1). See Henderson v. Ghosh, 755 F.3d 559, No. 13-2035, 2014 WL 2757473, at *4 (7th Cir. June 18, 2014) (per curiam). If an indigent plaintiff has made a reasonable attempt to obtain counsel and then files a motion for recruitment of counsel, the district court should ask “whether the difficulty of the case — factually and legally — exceeds the particular plaintiffs capacity as a layperson to coherently present it to the judge or jury himself.” Pruitt v. Mote, 503 F.3d 647, 655 (7th Cir.2007) (en banc). We acknowledge this is a “difficult decision” since “[ajlmost everyone would benefit from having a lawyer, but there are too many indigent litigants and too few lawyers willing and able to volunteer for these cases.” Olson v. Morgan, 750 F.3d 708, 711 (7th Cir.2014). So we review the denial of the recruitment of counsel for an abuse of discretion and will reverse only if the plaintiff was prejudiced by the" }, { "docid": "22979522", "title": "", "text": "found that Gil could adequately represent himself. We review that finding for abuse of discretion. Farmer, 990 F.2d at 323. “Denying a request for counsel will constitute an abuse of discretion if it ‘would result in fundamental unfairness infringing on due process rights.’ ” Jackson, 953 F.2d at 1071-72 (quoting McNeil v. Lowney, 831 F.2d 1368, 1371 (7th Cir.1987), cert. denied, 485 U.S. 965, 108 S.Ct. 1236, 99 L.Ed.2d 435 (1988)). See also Zarnes v. Rhodes, 64 F.3d 285, 288 (7th Cir.1995) (we review the court’s refusal to appoint counsel for abuse of discretion and reverse only when that refusal amounts to a violation of due process). At the time the court entered the first order, the ruling it later adopted, it did not have before it an affidavit from Gil’s jailhouse lawyer, Robert Ortloff. Ortloff filed the affidavit with the second motion for appointment of counsel. According to Ort-loff, Gil indeed had limited language skills and had relied on Ortloff in all of his pleadings. Ortloff stated that Gil is a Colombian national with limited English skills. Additionally, Ortloff was busy litigating an astonishing fourteen other cases, six on behalf of himself and eight for other inmates. As a result, he felt unable to give Gil’s case the attention it needed. The court does not appear to have considered Ortloff s affidavit when it ruled on the second motion. We note that the court had previously appointed counsel for Gil in another case related to his medical care and thus was aware that Gil was not necessarily competent to try such a case. More importantly, the court appears to have underestimated the complexity of Gil’s Eighth Amendment and FTCA claims from both a legal and medical standpoint. As we discuss below, Gil’s claims are not as straightforward as they might initially appear, and the legal and factual pitfalls are many for an untrained person unfamiliar withhthe English language. Using the Farmer analysis, we consider the complexity of the case, the plaintiffs competence and whether appointed counsel could have made a difference in the outcome. We will shortly see that" }, { "docid": "22157797", "title": "", "text": "whether this court would have appointed counsel if it were in the district court’s position. See Zarnes v. Rhodes, 64 F.3d 285, 289 (7th Cir.1995). Even if the reviewing court may have preferred to appoint counsel, that is not its role. Otherwise, such disagreement would always compel appointment. Rather, “overriding]” a district court’s denial of counsel is reserved for only “that extreme case in which it should have been plain beyond doubt” that counsel was necessary. Farmer v. Haas, 990 F.2d 319, 323 (7th Cir.1993). Also, the test is not whether “a good lawyer may have done better than [the plaintiff].” Luttrell, 129 F.3d at 936. Because if that were the test, “district judges would be required to request counsel for every indigent litigant.” Id. (quoting Farmer, 990 F.2d at 323). Section 1915(e)(1) leaves significant discretion with the district court. To determine if a district court abused its discretion in denying counsel, we have formulated a two-step inquiry. We first ask: “[GJiven the difficulty of the case, did the plaintiff appear to be competent to try it himself[?]” Greeno, 414 F.3d at 658 (quoting Farmer, 990 F.2d at 322). If so, our inquiry ends right there. If not, we further ask: “[W]ould the presence of counsel have made a difference in the outcome?” Greeno, 414 F.3d at 658 (quoting Farmer, 990 F.2d at 322). Reversal is therefore warranted only when the district court’s “denial amounts to a violation of due process.” Zarnes, 64 F.3d at 288; see also Gil v. Reed, 381 F.3d 649, 657 (7th Cir.2004). In other words, a district court will be held to have abused its discretion under § 1915(e)(1) only if the denial of counsel made “it impossible for [the plaintiff] to obtain any sort of justice.” Farmer, 990 F.2d at 323 (emphasis added). Johnson has not met this “exacting standard.” Id. This case was not overly difficult. Johnson had to show that he had a serious medical need and that the defendants consciously disregarded that need so as to impose cruel and unusual punishment. See Farmer v. Brennan, 511 U.S. 825, 837-38, 114 S.Ct." }, { "docid": "22362906", "title": "", "text": "coercive appointments of counsel.” Id. at 310, 109 S.Ct. 1814. As members of a profession and officers of the court, however, lawyers “have obligations to their calling which exceed their obligations to the State,” id. at 310, 109 S.Ct. 1814 (Kennedy, J., concurring), and the Supreme Court has said that § 1915(e)(1) “may meaningfully be read to legitimize a court’s request to represent a poor litigant and therefore to confront a lawyer with an important ethical decision.” Id. at 308, 109 S.Ct. 1814. Accordingly, we have previously noted that because “judges are usually able to find lawyers willing to accede to such ‘requests,’ ” they are “as a practical matter ... appointments.” Hughes v. Joliet Corr. Ctr., 931 F.2d 425, 429 (7th Cir.1991). In forma pauperis plaintiffs typically ask judges to “appoint” counsel, and judges regularly construe motions seeking “appointment” of counsel — which Pruitt’s four motions did— as motions seeking the court’s assistance under § 1915(e)(1) in recruiting a volunteer. When reviewing denials of § 1915(e)(1) motions on appeal, we have usually engaged in three inquiries: (1) has the indigent plaintiff “made reasonable efforts to retain counsel” or “been effectively precluded from making such efforts” before requesting appointment, see Jackson v. County of McLean, 953 F.2d 1070, 1073 (7th Cir.1992); (2) “given the difficulty of the case, did the plaintiff appear to be competent to try it himself,” Farmer v. Haas, 990 F.2d 319, 322 (7th Cir.1993); and (3) “if not, would the presence of counsel have made a difference in the outcome,” id. These three questions encompass elements of both the legal standard that guides the district court’s exercise of discretion and the appellate standard of review; our cases have not always clearly marked the distinction between the two. Nor have we always been consistent in articulating and applying the inquiries each question represents. We granted rehearing en banc to clarify the district court’s obligations, and our own. We also take this opportunity to resolve conflicting statements in our case law regarding the interests that are' — or more precisely, are not — at stake in this context." }, { "docid": "22157858", "title": "", "text": "of the factual issues raised in the claim,” along with the question of whether \"the indigent is in [a] position to investigate crucial facts”; (3) whether the existence of conflicting testimony as a significant source of evidence makes it \"more likely that the truth will be exposed where both sides are represented by those trained in the presentation of evidence and in cross-examination”; (4) \"the capability of the indigent litigant to present the case”; and (5) \"the complexity of the legal issues raised by the complaint.” Id. at 887-88. Under the Maclin test, ”[t]he first factor, the merits of the plaintiff’s claim, [was] foremost.” Swofford v. Mandrell, 969 F.2d 547, 551 (7th Cir. 1992). This court in Farmer recognized that \"the Maclin test is not canonical” and, as just described above, presented a stripped-down formulation for the inquiry into whether counsel should have been requested. Farmer, 990 F.2d at 321. The Farmer test has been recognized as \"an alternative, easier method for deciding [appointment of counsel] motions.” Zarnes v. Rhodes, 64 F.3d 285, 288 (7th Cir. 1995). However, Farmer did not discredit entirely the Maclin test; it merely noted that \"the multiple factors ... collapse upon inspection” into a simpler inquiry. Farmer, 990 F.2d at 321. . In past opinions, we also have directed courts to conduct \"a threshold examination into an indigent's effort to retain counsel,” on the ground that the enabling statute \"dictates that an indigent must have made an unsuccessful attempt to obtain counsel before the request can be considered.” Jackson v. County of McLean, 953 F.2d 1070, 1072 (7th Cir. 1992). At the time Jaclcson was decided, the statute permitting a court to request counsel to represent an indigent defendant read as follows: \"The court may request an attorney to represent any ... person unable to employ counsel ...28 U.S.C. § 1915(d) (emphasis added). The statute at the time of Mr. Johnson’s motions used the language, \"unable to afford counsel.” 28 U.S.C. § 1915(e)(1) (emphasis added). Regardless of the change to the statute, the record reveals that Mr. Johnson made numerous efforts to secure the assistance" }, { "docid": "21080798", "title": "", "text": "claiming that both the decision granting summary judgment and the one denying her motion for the appointment of counsel were wrong. On the issue of representation, Forbes contends that Judge McDade acknowledged that hers was a complex case, but nevertheless refused to appoint counsel to represent her. Although an indigent civil litigant in federal court has no right to the appointment of counsel, a court can request that an attorney handle the ease, and thus in effect “appoint” that attorney to the case. 28 U.S.C. § 1915(d). We reverse a district court’s refusal to make an appointment of this sort only for an abuse of discretion if, given the difficulty of the case and the litigant’s ability, she could not obtain justice without an attorney, she could not obtain a lawyer on her own, and she would have had a reasonable chance of winning with a lawyer at her side. Farmer v. Haas, 990 F.2d 319 (7th Cir.1993), cert. denied, 510 U.S. 963,114 S.Ct. 438, 126 L.Ed.2d 372; Dellenbach v. Hanks, 76 F.3d 820 (7th Cir.1996), cert. denied, — U.S. -, 117 S.Ct. 237, 136 L.Ed.2d 167. On appeal, Forbes has an attorney, who, by the way, has indicated a willingness to litigate this case should it be remanded to the district court. But the issue before us is not whether there is an attorney who is now willing to litigate the case or whether we wish one had been appointed in the district court. The issue is whether, given the standards we have noted in other cases, Judge McDade abused his discretion when he decided not to appoint an attorney to represent Ms. Forbes. Looking to those standards, we note for one that Forbes is an exceptionally able litigant. The documents she submitted to the district court are comprehensible and literate. She also has experience litigating other cases — at least four of them, and in one she filed a response to a summary judgment motion shortly before this case got going — in the Central District of Illinois. She says, however, that this particular case is very important" }, { "docid": "8889029", "title": "", "text": "in the decision not to preserve the video. Braeey lost at trial. He now appeals both the denial of his motion to recruit counsel and the denial of his motion for spoliation sanctions. II. Discussion A. The District Court Did Not Abuse Its Discretion in Denying Bracey’s Request for Counsel District courts may ask an attorney to represent a litigant unable to pay for his own lawyer. § 1915(e)(1). To qualify, the indigent litigant must make reasonable efforts at finding counsel himself. Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir.2007) (en banc). If the litigant comes up short, then the district court must decide whether “given the difficulty of the case,” the plaintiff is “competent to try it himself.” Id. (citing Farmer v. Haas, 990 F.2d 319, 322 (7th Cir.1993)). Importantly, the district court must consider both halves of this equation — the difficulty of the case and the competence of the litigant. Id. at 660. When reviewing the district court’s determination on complexity and competency, we consider the reasonableness of the district court’s conclusion in light of the evidence as it stood at the time of the district court’s decision. Id. at 659. We review denials of § 1915(e) motions for an abuse of discretion. Id. at 658. Thus, we affirm unless the district court has applied the wrong legal standard (or made other errors of law), made clearly erroneous factual findings, or rendered a clearly arbitrary decision without any support in the record. Id. Even then, an appellate court can only reverse when the absence of counsel prejudiced the litigant, which requires “a reasonable likelihood that the presence of counsel would have made a difference in the outcome of the litigation.” Id. at 659 (emphasis in original). The government does not challenge the district court’s conclusion that Bracey made reasonable attempts to obtain counsel himself, and Bracey does not challenge the district court’s findings regarding the quality of his pro se representation. Instead, Bracey emphasizes “the difficulties [he] faced as a prisoner attempting to gather evidence.” Complexities anticipated (or arising) during discovery can justify a court’s decision" }, { "docid": "12220521", "title": "", "text": "in federal civil litigation, but a district court has discretion to recruit counsel under 28 U.S.C. § 1915(e)(1). See Henderson v. Ghosh, 755 F.3d 559, No. 13-2035, 2014 WL 2757473, at *4 (7th Cir. June 18, 2014) (per curiam). If an indigent plaintiff has made a reasonable attempt to obtain counsel and then files a motion for recruitment of counsel, the district court should ask “whether the difficulty of the case — factually and legally — exceeds the particular plaintiffs capacity as a layperson to coherently present it to the judge or jury himself.” Pruitt v. Mote, 503 F.3d 647, 655 (7th Cir.2007) (en banc). We acknowledge this is a “difficult decision” since “[ajlmost everyone would benefit from having a lawyer, but there are too many indigent litigants and too few lawyers willing and able to volunteer for these cases.” Olson v. Morgan, 750 F.3d 708, 711 (7th Cir.2014). So we review the denial of the recruitment of counsel for an abuse of discretion and will reverse only if the plaintiff was prejudiced by the denial— e.g., if there is a reasonable likelihood that the recruitment of counsel would have made a difference in the outcome of the litigation. See Santiago v. Walls, 599 F.3d 749, 765 (7th Cir.2010). In so deciding, our case law is clear that a plaintiff can be prejudiced by the lack of counsel pretrial just as easily as during the briefing or trial itself. See id. at 765 (noting prejudice when plaintiff “was incapable of engaging in any investigation ] or locating and presenting key witnesses or evidence” (quoting Pruitt, 503 F.3d at 659)); see also Henderson, 755 F.3d at 566-67, 2014 WL 2757473 at *7 (finding prejudice where plaintiff “was incapable of obtaining the witnesses and evidence he needed to prevail on his claims”); Bracey v. Grondin, 712 F.3d 1012, 1017 (7th Cir.2013) (“Complexities anticipated (or arising) during discovery can justify a court’s decision to recruit counsel”). The first question, then, is whether the district court abused its discretion in denying the motions for recruitment of counsel. In his first motion, Dewitt requested the" }, { "docid": "22362913", "title": "", "text": "counsel, whether based on the nature of the case or the degree of plaintiff competence. The inquiry into plaintiff competence and case difficulty is particularized to the person and case before the court. It is undertaken with due regard for the nature of the request at hand; before a judge will invoke his discretionary authority to press a lawyer into service on an indigent plaintiffs case pro bono, he first rules out the possibility that the plaintiff is competent to litigate it himself. Of course when faced with a § 1915(e)(1) motion, the judge cannot know with certainty whether the plaintiff will actually prove to be competent to litigate his own case. He can only make a determination based on the record as it exists when the motion is brought, and our review is limited to the record at the time the decision was made (we will have more to say on this later). Accordingly, although the judge certainly has the discretion to do so, he has no obligation to reconsider a § 1915(e)(1) denial should future events prove the plaintiff less capable than the record indicated when the motion was denied. Such an obligation might be inferred from our case law, which has routinely suggested that pro bono counsel may not be denied “if it would result in fundamental unfairness infringing on due process rights.” Gil v. Reed, 381 F.3d 649, 657 (7th Cir.2004); see also Zarnes, 64 F.3d at 288; Jackson, 953 F.2d at 1071-72; McNeil, 831 F.2d at 1371. This implies that at a certain point on the case-difficulty/plaintiff-competence continuum, a due process entitlement to counsel kicks in. Not so. We have also said it is a “fundamental premise that indigent civil litigants have no constitutional or statutory right to be represented by counsel in federal court.” Jackson, 953 F.2d at 1071; see also Johnson, 433 F.3d at 1006; Zarnes, 64 F.3d at 288 (“Civil litigants do not have a right, either constitutional or statutory, to counsel.”). In this regard, cases like Jackson and Zames are on both sides of the proposition; this conflict contributed to our" }, { "docid": "4303641", "title": "", "text": "the defendants under the Fourth Amendment and under the Fourteenth Amendment substantive due process clause. However, Gruenberg mentions these arguments for the first time on appeal. He concedes that he did not argue these issues because the district court refused to appoint counsel (see below). Nevertheless, “(i)t is a well-settled rule that a party opposing a summary judgment motion must inform the trial judge of the reasons, legal or factual, why summary judgment should not be entered. If it does not do so, and loses the motion, it cannot raise such reasons on appeal.” Domka v. Portage County, Wis., 523 F.3d 776, 783 (7th Cir.2008) (quotations omitted); see also Arendt v. Vetta Sports, Inc., 99 F.3d 231, 237 (7th Cir.1996) (issues that are not raised in the district court in response to a motion for summary judgment are waived on appeal). Furthermore, as we noted above, Gruenberg’s claims are better addressed under the Eighth Amendment. Thus, Gruenberg’s Fourth Amendment and Fourteenth Amendment substantive due process claims are barred. Finally, Gruenberg argues that the district court abused its discretion when it denied Gruenberg’s request for counsel. We review a district court’s decision to deny the appointment of counsel under 28 U.S.C. § 1915(e)(1) for an abuse of discretion, but will reverse only “upon a showing of prejudice.” Pruitt v. Mote, 503 F.3d 647, 659 (7th Cir.2009). Gruenberg repeatedly requested counsel to advance his claims here, and the district court denied those requests, finding that, in light of the numerous pro se lawsuits Gruenberg had filed in the past, Gruenberg was competent to litigate his case. “An indigent civil litigant may ask the district court to request an attorney to represent him pro bono publico.” Id. at 649. When a litigant requests counsel, the district court must ask (1) “has the indigent plaintiff made a reasonable attempt to retain counsel or been effectively precluded from making such efforts ... ”; and if so, (2) “given the difficulty of the case, did the plaintiff appear competent to try it himself?” Id. at 654. Gruenberg did attempt to seek counsel, apparently contacting eight different" }, { "docid": "22157848", "title": "", "text": "given the difficulty of the case and the litigant’s ability, [he] could not obtain justice without an attorney, [he] could not obtain a lawyer on [his] own, and [he] would have had a reasonable chance of winning with a lawyer at [his] side.” Forbes v. Edgar, 112 F.3d 262, 264 (7th Cir.1997). As this standard makes clear, “we evaluate the reasonableness of the district court’s decision [whether to request counsel] as of the time it was made .... ” Hudson v. McHugh, 148 F.3d 859, 862 n. 1 (7th Cir. 1998). In my view, the district court selected a course of proceeding that was clearly inappropriate. It did not take into consideration all the factors that it should have and it gave inappropriate weight to the factors that it did consider. In short, it accepted the conventional wisdom about prisoner medical suits and the conventional wisdom about the appointment of counsel in a case in which it should have “thought out of the box” and declined to accept that conventional wisdom. Mr. Johnson claims that the complexity of the Eighth Amendment deliberate indifference standard and the medical issues presented by his case should have demonstrated to the district court that he needed the assistance of counsel to prove the subjective intent element of deliberate indifference. He submits that an attorney well-versed in the law of evidence would have been able to have supplied the district court with extensive evidence supporting his claim for relief. It also is Mr. Johnson’s position that, in addition to an attorney at trial, he needed a lawyer to conduct the sort of discovery that was necessary both on the significance of the medical evidence and on the possible existence of a prison policy against ever permitting surgery for a hernia. The defendants, on the other hand, contend that the district court acted within its discretion in refusing to request counsel to represent Mr. Johnson. The defendants point to the fact that Mr. Johnson survived a motion to dismiss and partially survived summary judgment as proof that he was competent to try the case. The defendants" }, { "docid": "22362912", "title": "", "text": "of the request for counsel, as well as the pleadings, communications from, and any contact with the plaintiff. We recognize that the volume of pro se prisoner cases is great, and in some cases&emdash;perhaps many eases&emdash;the record may be sparse. The inquiry into the plaintiffs capacity to handle his own case is a practical one, made in light of whatever relevant evidence is available on the question. Likewise, there are no hard and fast rules for evaluating the factual and legal difficulty of the plaintiffs claims. We have previously observed that some cases&emdash; those involving complex medical evidence, for example&emdash;are typically more difficult for pro se plaintiffs. See Zarnes v. Rhodes, 64 F.3d 285, 289 n. 2 (7th Cir.1995). But because the decision belongs to the district court, we have resisted laying down categorical rules regarding recruitment of counsel in particular types of cases. Id. at 288-89 (refusing to recognize a rule of “automatic appointment of counsel whenever a litigant alleges a violation of due process”). There are no presumptions for or against recruitment of counsel, whether based on the nature of the case or the degree of plaintiff competence. The inquiry into plaintiff competence and case difficulty is particularized to the person and case before the court. It is undertaken with due regard for the nature of the request at hand; before a judge will invoke his discretionary authority to press a lawyer into service on an indigent plaintiffs case pro bono, he first rules out the possibility that the plaintiff is competent to litigate it himself. Of course when faced with a § 1915(e)(1) motion, the judge cannot know with certainty whether the plaintiff will actually prove to be competent to litigate his own case. He can only make a determination based on the record as it exists when the motion is brought, and our review is limited to the record at the time the decision was made (we will have more to say on this later). Accordingly, although the judge certainly has the discretion to do so, he has no obligation to reconsider a § 1915(e)(1) denial" }, { "docid": "22362918", "title": "", "text": "because of the liberty interest implicated by a criminal prosecution. Nothing in § 1915(e)(1) itself suggests an obligation to revisit an earlier denial of pro bono counsel. Accordingly, there is neither a statutory nor a constitutional duty to monitor whether an indigent litigant is competently litigating his civil claims after a § 1915(e)(1) request has been denied. The district court is required to exercise its discretion appropriately when presented with a motion seeking recruitment of pro bono counsel, but that is where its obligations end. The court certainly retains the discretion to adjourn a trial and recruit pro bono counsel if it appears as though an earlier denial of a request for counsel may have been ill-advised; doing so here might well have been prudent given Pruitt’s obvious inadequacies. But the court has no general duty to do so, even where an indigent plaintiff ultimately proves incompetent to litigate his own claims. B. Appellate Review We review the denial of a § 1915(e)(1) motion for abuse of discretion. Greeno v. Daley, 414 F.3d 645, 658 (7th Cir.2005); Zarnes, 64 F.3d at 288. “A court does not abuse its discretion unless ... (1) the record contains no evidence upon which the court could have rationally based its decision; (2) the decision is based on an erroneous conclusion of law; (3) the decision is based on clearly erroneous factual findings; or (4) the decision clearly appears arbitrary.” Musser v. Gentiva Health Servs., 356 F.3d 751, 755 (7th Cir.2004) (quotations omitted). As with any discretionary determination, the question on appellate review is not whether we would have recruited a volunteer lawyer in the circumstances, but whether the district court applied the correct legal standard and reached a reasonable decision based on facts supported by the record. Accordingly, we do not undertake our own analysis of the degree of case difficulty as against the plaintiffs competence to litigate it himself; that is the district court’s inquiry, not ours. “Because of the particularistic character of the ruling and the fact that the district judge has the considerable advantage over us of having seen how the" }, { "docid": "22157796", "title": "", "text": "and is now represented by counsel. The focal point of Johnson’s appeal is the district court’s rejection of his motions for counsel. He also challenges the summary judgment and final judgment determinations that went against him. A. Civil litigants do not have a constitutional or statutory right to counsel in federal court. See Luttrell v. Nickel, 129 F.3d 933, 936 (7th Cir.1997). They, however, may request counsel pursuant to § 1915(e)(1), and then the matter is left to the district court’s discretion. See 28 U.S.C. § 1915(e)(1) (“The court may request an attorney to represent any person unable to afford counsel.”); Luttrell, 129 F.3d at 936. Consequently, our review under § 1915(e)(1) is limited to the abuse-of-discretion standard. See Greeno v. Daley, 414 F.3d 645, 658 (7th Cir.2005); Luttrell, 129 F.3d at 936. Furthermore, we evaluate a district court’s denial-of-counsel decision “as of the time it was made” — i.e., without the benefit of hindsight. Hudson v. McHugh, 148 F.3d 859, 862-63 n. 1 (7th Cir.1998). In reviewing denials of counsel, the test is not whether this court would have appointed counsel if it were in the district court’s position. See Zarnes v. Rhodes, 64 F.3d 285, 289 (7th Cir.1995). Even if the reviewing court may have preferred to appoint counsel, that is not its role. Otherwise, such disagreement would always compel appointment. Rather, “overriding]” a district court’s denial of counsel is reserved for only “that extreme case in which it should have been plain beyond doubt” that counsel was necessary. Farmer v. Haas, 990 F.2d 319, 323 (7th Cir.1993). Also, the test is not whether “a good lawyer may have done better than [the plaintiff].” Luttrell, 129 F.3d at 936. Because if that were the test, “district judges would be required to request counsel for every indigent litigant.” Id. (quoting Farmer, 990 F.2d at 323). Section 1915(e)(1) leaves significant discretion with the district court. To determine if a district court abused its discretion in denying counsel, we have formulated a two-step inquiry. We first ask: “[GJiven the difficulty of the case, did the plaintiff appear to be competent to" }, { "docid": "23168340", "title": "", "text": "counsel. She next asserts that she adequately stated due process claims of knowing endangerment and indifference to her serious medical needs. Finally, Zarnes argues that the court erroneously granted summary judgment for Rhodes on her claims concerning her placement in segregation without due process. A. Civil litigants do not have a right, either constitutional or statutory, to counsel. Jackson v. County of McLean, 953 F.2d 1070, 1071 (7th Cir.1992). Section 1915(d), however, grants district courts the discretion to request counsel to represent indigents in appropriate cases. 28 U.S.C. § 1915(d). We review the court’s decision not to appoint counsel for an abuse of discretion and will only reverse when that denial amounts to a violation of due process. Jackson, 953 F.2d at 1072. As a threshold matter, a litigant must make a reasonable attempt to secure private counsel. Id. at 1072-73. Before filing her motion for counsel, Zarnes had made no such effort. After the court denied her motion, Zarnes contacted several attorneys. The court denied her motion for reconsideration after finding that Zarnes’s endeavors were not reasonable because the lawyers she solicited were either not licensed to practice in Illinois or did not practice criminal law. Zarnes then contacted three attorneys from Springfield, Illinois, who all declined to take her case. The court again denied her motion. In our view, Zarnes made a reasonable attempt to hire an attorney to represent her. After learning that she needed to try to retain counsel, Zarnes made persistent efforts toward that end. At the time, she was incarcerated 2,000 miles away and had no access to a Springfield telephone directory. She therefore could not be expected to obtain easily the names of available attorneys. Given the circumstances her effort was sufficient. After meeting this threshold burden, the plaintiff must demonstrate that her case is one appropriate for the appointment of counsel. In Maclin v. Freake, 650 F.2d 885, 887-89 (7th Cir.1981), we set out a nonexhaustive list of five factors for courts to consider when deciding such a motion: (1) the merits of the plaintiffs claims; (2) whether the plaintiff can investigate" }, { "docid": "23168339", "title": "", "text": "Lamb. On October 20, 1992, the district court granted Zarnes’s motion to amend her complaint and then dismissed the claims against Rhodes. On May 5, 1993, the court sua sponte reinstated Zarnes’s claim alleging placement in segregation without due process. Rhodes subsequently filed a motion to dismiss that the court converted to a motion for summary judgment. The court forwarded this motion to Zarnes in California, where she was incarcerated, giving her fourteen days from the day it was sent in which to respond. Zarnes prepared a motion for an extension of time but mailed it to the United States Attorney instead of the court. One day after her response was due but not filed, May 6, 1994, the district court granted summary judgment for Rhodes. The court had previously granted summary judgment for Lamb on October 26, 1993, finding that Zarnes could not prove he was responsible for any constitutional violation. Zarnes appealed and we appointed counsel to represent her in her appeal. II. Zarnes first challenges the district court’s refusal to appoint her counsel. She next asserts that she adequately stated due process claims of knowing endangerment and indifference to her serious medical needs. Finally, Zarnes argues that the court erroneously granted summary judgment for Rhodes on her claims concerning her placement in segregation without due process. A. Civil litigants do not have a right, either constitutional or statutory, to counsel. Jackson v. County of McLean, 953 F.2d 1070, 1071 (7th Cir.1992). Section 1915(d), however, grants district courts the discretion to request counsel to represent indigents in appropriate cases. 28 U.S.C. § 1915(d). We review the court’s decision not to appoint counsel for an abuse of discretion and will only reverse when that denial amounts to a violation of due process. Jackson, 953 F.2d at 1072. As a threshold matter, a litigant must make a reasonable attempt to secure private counsel. Id. at 1072-73. Before filing her motion for counsel, Zarnes had made no such effort. After the court denied her motion, Zarnes contacted several attorneys. The court denied her motion for reconsideration after finding that Zarnes’s endeavors" }, { "docid": "9305150", "title": "", "text": "who is represented by recruited counsel on appeal, claims the district court made three errors. First, he argues that the district court's denial of his motions to recruit counsel was an abuse of discretion that prejudiced him. Second, Walker argues the district court abused its discretion in allowing his trial to proceed by videoconference. Finally, Walker argues that the cumulative effect of the court's errors requires that we grant him a new trial. II. Litigants in federal civil cases do not have a constitutional or statutory right to court-appointed counsel. Pruitt v. Mote , 503 F.3d 647, 649 (7th Cir. 2007) (en banc). An indigent litigant, however, may ask the court to recruit a volunteer attorney to provide pro bono representation. 28 U.S.C. § 1915(e)(1). Two questions guide a court's discretionary decision whether to recruit counsel: (1) \"has the indigent plaintiff made a reasonable attempt to obtain counsel or been effectively precluded from doing so,\" and (2) \"given the difficulty of the case, does the plaintiff appear competent to litigate it himself?\" Id. at 654. Walker claims the district court erred when it answered \"no\" to the second Pruitt question, because it underestimated the difficulty of his case and overestimated his ability to litigate it. We think that the court acted within its discretion when it denied Walker's initial requests for recruited counsel. But when Walker made his sixth request, he was facing not only a jury trial-rare enough for a pro se litigant-but a trial by videoconference. And he had also recently lost the assistance of his jailhouse lawyer, which meant that his prior filings were not necessarily reflective of his competence to proceed alone. These factors changed the calculus, and we agree with Walker that the district court should have granted his last motion to recruit counsel. We review the district court's denial of a pro se plaintiff's motion to recruit counsel for abuse of discretion. Id. at 658. A district court abuses its discretion when \"(1) the record contains no evidence upon which the court could have rationally based its decision; (2) the decision is based on" } ]

[ { "docid": "1912138", "title": "", "text": "statements to RM were privileged and should have been excluded from trial. Such error will require reversal unless the error is harmless. Harmless Error Whether an error, constitutional or otherwise, was harmless is a question of law that we review de novo. United States v. Walker, 57 M.J. 174, 178 (C.A.A.F.2002); United States v. Grijalva, 55 M.J. 223, 228 (C.A.A.F. 2001) . The Government has the burden of persuading us that a constitutional error is harmless beyond a reasonable doubt. United States v. Hall, 56 M.J. 432, 436 (C.A.A.F. 2002) . For nonconstitutional errors, the Government must demonstrate that the error did not have a substantial influence on the findings. Walker, 57 M.J. at 178 (citing Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). This Court has never addressed whether the erroneous admission of privileged marital communications constitutes constitutional or nonconstitutional error for purposes of harmless error analysis. With respect to the privilege in this case, constitutional concerns are not at issue. M.R.E. 504 .was formulated by the Evidence Working Group of the Joint Service Committee on Military Justice and was enacted by presidential order. See United States v. Martel, 19 M.J. 917, 931 (A.C.M.R.1985); MCM, Drafter’s Analysis, supra, at A22-38, A22-40. It was not constitutionally mandated, and consequently, any error in admitting privileged spousal communications must be non-constitutional in nature. Therefore, the military judge’s error in admitting Appellant’s privileged statements will be harmless if the error did not have a substantial influence on the findings. In determining the prejudice resulting from the erroneous admission of evidence, we weigh “(1) the strength of the Government’s case, (2) the strength of the defense case, (3) the materiality of the evidence in question, and (4) the quality of the evidence in question.” United States v. Kerr, 51 M.J. 401, 405 (C.A.A.F.1999)(citing United States v. Weeks, 20 M.J. 22, 25 (C.M.A.1985)). Applying this standard to Appellant’s case, we hold that the military judge’s error in admitting Appellant’s statements was harmless. On the one hand, there is no doubt that Appellant’s privileged statements were material. They directly" } ]

[ { "docid": "16068480", "title": "", "text": "Judge CRAWFORD delivered the opinion of the Court. Contrary to his pleas, Appellant was convicted of receiving and possessing child pornography, and misusing the Internet in an attempt to entice minors in violation of Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2000). The convening authority approved the sentence of a dishonorable discharge, forty-five months of confinement, forfeiture of all pay and allowances, and reduction to the lowest enlisted grade. FACTS In light of United States v. O’Connor, 58 M.J. 450 (C.A.A.F.2003), we set aside the findings of guilty to possessing and receiving child pornography and remanded the case. United States v. Moffeit, 60 M.J. 348 (C.A.A.F.2004). The lower court was given the option of either dismissing those specifications and reassessing the sentence based on the remaining internet offense, or order a rehearing. Id. The lower court reassessed the sentence reducing the confinement to thirty-three months. The lower court, citing United States v. Sales, 22 M.J. 305 (C.M.A. 1986), said: Applying this [SaZes] analysis, and after careful consideration of the entire record, we are satisfied beyond a reasonable doubt that, in the absence of Specifications 1 and 2 of the Charge, the military judge would have adjudged a sentence of no less than a dishonorable discharge, confinement for [thirty-three] months, forfeiture of all pay and allowances, and reduction to E-l. United States v. Moffeit, No. ACM 35159, 2004 CCA LEXIS 297, at *3,2005 WL 11588, at *1 (A.F.Ct.Crim.App. Dee. 8, 2004). Judge Johnson, concurring in part and dissenting in part, indicated she would have returned this case for a new sentence rehearing. Id. at 2004 CCA LEXIS 297, at *4, 2005 WL 11588, at *1. After reassessment, we granted the following issue: WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ABUSED ITS DISCRETION BY REASSESSING APPELLANT’S SENTENCE TO INCLUDE A DISHONORABLE DISCHARGE AND 33 MONTHS OF CONFINEMENT RATHER THAN ORDERING A REHEARING ON THE SENTENCE. In Sales, we held that a Court of Criminal Appeals (CCA), in dismissing a charge, may reassess the sentence and that sentence must be equal to or no greater than a" }, { "docid": "16068481", "title": "", "text": "record, we are satisfied beyond a reasonable doubt that, in the absence of Specifications 1 and 2 of the Charge, the military judge would have adjudged a sentence of no less than a dishonorable discharge, confinement for [thirty-three] months, forfeiture of all pay and allowances, and reduction to E-l. United States v. Moffeit, No. ACM 35159, 2004 CCA LEXIS 297, at *3,2005 WL 11588, at *1 (A.F.Ct.Crim.App. Dee. 8, 2004). Judge Johnson, concurring in part and dissenting in part, indicated she would have returned this case for a new sentence rehearing. Id. at 2004 CCA LEXIS 297, at *4, 2005 WL 11588, at *1. After reassessment, we granted the following issue: WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ABUSED ITS DISCRETION BY REASSESSING APPELLANT’S SENTENCE TO INCLUDE A DISHONORABLE DISCHARGE AND 33 MONTHS OF CONFINEMENT RATHER THAN ORDERING A REHEARING ON THE SENTENCE. In Sales, we held that a Court of Criminal Appeals (CCA), in dismissing a charge, may reassess the sentence and that sentence must be equal to or no greater than a sentence that would have been imposed if there had been no error. 22 M.J. at 308. “Thus, if the court can determine to its satisfaction that, absent any error, the sentence adjudged would have been of at least a certain severity, then a sentence of that severity or less will be free of the prejudicial effects of error____” Id. However, “[i]f the error at trial was of constitutional magnitude, then the court must be satisfied beyond a reasonable doubt that its reassessment cured the error.” United States v. Doss, 57 M.J. 182, 185 (C.A.A.F.2002) (citing Sales, 22 M.J. at 307); see also United States v. Buber, 62 M.J. 476 (C.A.A.F.2006); United States v. Berry, 61 M.J. 91 (C.A.A.F.2005). Further, it is error for a lower court to use an incorrect standard. United States v. Baier, 60 M.J. 382 (C.A.A.F.2005). We hold that the CCA correctly applied Sales. We note that the lower court has reviewed the records of a substantial number of courts-martial involving convictions for child pornography activities and offenses involving sexual misconduct with" }, { "docid": "19031402", "title": "", "text": "continue to be overpaid, after he discovered that the housing office had failed to report his change of circumstances. Cf. Antonelli, 43 M.J. at 183 (SrA Antonelli made an affirmative misrepresentation that he had provided support to his dependents, entitling him to the “with dependents” rate of BAQ which he received). There is persuasive evidence that the appellant did not take any affirmative steps to co-opt a recoupment, but, to the contrary, fully expected the Navy to recoup the overpayments, as it had in the past. Id. The appellant’s passive conduct, although it may have ramifications relating to dereliction of a duty by omission, does not láse to the same level of criminality as would more affirmative action. Id. We find the totality of the evidence creates a reasonable doubt that the appellant had the mens tea necessary for a violation of Article 121. The findings of guilty of Charge IV and its Specification are set aside and the Charge is dismissed. The remaining findings of guilty are affirmed. We have reassessed the sentence. United States v. Dresen, 40 M.J. 462 (C.M.A.1994); United States v. Jones, 39 M.J. 315 (C.M.A.1994); United States v. Reed, 33 M.J. 98 (C.M.A.1991); United States v. Peoples, 29 M.J. 426 (C.M.A.1990); United States v. Sales, 22 M.J. 305 (C.M.A.1986). The accused had two prior nonjudicial punishments, separated by less than a week. His enlisted evaluations were remarkable only in their resounding mediocrity. For his convictions of a short period of unauthorized absence and wrongful possession of cocaine, we are confident that, absent the erroneous finding, his sentence would have included, at the very least, a bad-conduct discharge. Therefore, we affirm only so much of the sentence approved on review below as includes a bad-conduct discharge. Senior Judge DeCICCO and Judge DOMBROSKI concur. . This Court is hampered in its efforts to determine upon what theory of culpability the appellant was convicted. In neither the opening statement nor the closing argument is there any indication of the government’s theory of the case for larceny, i.e., whether by obtaining or withholding. Since the finder-of-fact was the military" }, { "docid": "1290532", "title": "", "text": "which it performs in the ordinary review of a case. Under Article 66, Uniform Code of Military Justice, 10 U.S.C. § 866, the Court of Military Review must assure that the sentence adjudged is appropriate for the offenses of which the accused has been convicted; and, if the sentence is excessive, it must reduce the sentence to make it appropriate. However, when prejudicial error has occurred in a trial, not only must the Court of Military Review assure that the sentence is appropriate in relation to the affirmed findings of guilty, but also it must assure that the sentence is no greater than that which would have been imposed if the prejudicial error had not been committed____ United States v. Suzuki, 20 M.J. 248, 249 (C.M.A.1985). Thus, if the court can determine to its satisfaction that, absent any error, the sentence adjudged would have been of at least a certain severity, then a sentence of that severity or less will be free of the prejudicial effects of error; and the demands of Article 59(a) will be met. Of course, even within this limit, the Court of Military Review will determine that a sentence it proposes to affirm will be “ap propriate,” as required by Article 66(c). In short, a reassessed sentence must be purged of prejudicial error and also must be “appropriate” for the offense involved. 22 M.J. at 307-08 (footnote omitted). To validly reassess a sentence to purge the effect of error, the court must be able to make a number of determinations. The court must be able to discern the extent of the error’s effect on the sentence. Hawes, 51 M.J. at 260 (quoting United States v. Reed, 33 M.J. 98, 99 (C.M.A.1991)). The reassessment must be based on a conclusion that the sentence that would have been imposed at trial absent the error “would have been at least of a certain magnitude.” Doss, 57 M.J. at 185. This conclusion about the sentence that would have been imposed must be made “with confidence.” United States v. Taylor, 51 M.J. 390, 391 (C.A.A.F.1999); see also Eversole, 53 M.J. at" }, { "docid": "1290527", "title": "", "text": "Army court properly reassessed the sentence rather than directing a rehearing on the sentence. A Court of Criminal Appeals can reassess a sentence to cure the effect of prejudicial error where that court can be confident “that, absent any error, the sentence adjudged would have been of at least a certain severity.” United States v. Sales, 22 M.J. 305, 308 (C.M.A.1986). Where the Court of Criminal Appeals can be so convinced, then that court may reassess and affirm only a sentence of that magnitude or less. Id. Buber claims that the Army court abused its discretion in deciding to reassess his sentence rather than order a rehearing because a charge alleging a single, exculpatory false official statement may not have even been referred to a courts-martial much less result in a sentence to a bad-conduct discharge and two years in jail. We find that the Army court’s decision to reassess this sentence was an abuse of discretion. BACKGROUND After trial on the merits, Buber stood convicted of: killing his four-year-old stepson by shaking and striking the child; separately assaulting the child by striking the child “in the head and face with his hands and/or an object”; and making a false official statement about the circumstances of the child’s death. The members were properly instructed that the maximum sentence for these offenses included a dishonorable discharge, confinement for life with or without eligibility for parole, forfeiture of all pay and allowances, and reduction to the lowest enlisted grade. The members returned a sentence to a dishonorable discharge and thirty-three years of confinement. Finding that the defense theory of accidental injury could not be discounted beyond a reasonable doubt, the Army Court of Criminal Appeals set aside the findings of murder and assault and dismissed those charges. Buber, No. ARMY 20000777, slip op. at 2,11. Additionally, the court found that a portion of the specification alleging false official statement was unsupported by factually sufficient evidence and that the specification was “duplicitous, in that the statements to SA [Special Agent] Siebert and Dr. Lyngholm were given at different times and places.” Id. at" }, { "docid": "14920803", "title": "", "text": "extent that the matter is not entirely free of doubt, the doubt must be resolved in favor of lenity. Whalen v. United States, 445 U.S. 684, 695 n. 10, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980). We therefore conclude Congress intended for the malum in se offense to be subsumed and incorporated in Article 119(a)(2), whenever a malum in se offense results in death. We now turn to fashioning an appropriate remedy. We note that military appellate courts have the inherent authority to order a conditional dismissal of a charge which becomes effective when direct review becomes final pursuant to Article 71(c), UCMJ, 10 U.S.C. § 871(c). Britton, 47 M.J. at 202-05 (Effron, J., concurring). Therefore, we conditionally dismiss the maiming charge and its specification subject to final review pursuant to Article 71(c), UCMJ, in order to allow the government to meet the exigencies of proof on the proximate cause issue through final appellate action. Rules for Courts-Martial (R.C.M.) 907(b)(3)(B). Having conditionally dismissed the maiming offense, we now reassess the sentence, adhering to the principles enunciated by our superior court in United States v. Doss, 57 M.J. 182, 185 (C.A.A.F.2002) and United States v. Sales, 22 M.J. 305 (C.M.A.1986). For errors of a constitutional magnitude, we must be persuaded beyond a reasonable doubt that our sentence reassessment has rendered the constitutional error harmless. United States v. Boone, 49 M.J. 187, 195 (C.A.A.F.1998). In ruling on the multiplicity issue at trial, the military judge stated his findings were in the alternative and entered for purposes of exigencies of proof. See R.C.M. 907(b)(3)(B) and R.C.M. 307(c)(4), Discussion. He went on to note that he considered the charges multiplicious for sentencing and thus determined the maximum confinement was 10 years—the maximum authorized confinement for involuntary manslaughter (as compared to 7 years for maiming). In sentencing the appellant to a dishonorable discharge, confinement for 6 years, forfeiture of all pay and allowances, and reduction to the grade of E-l, the military judge noted for purposes of appellate review that the court's sentence would have been “exactly the same” for either offense. Consequently, based upon" }, { "docid": "1290530", "title": "", "text": "was dependable and demonstrated initiative, tenacity, and creativity. Given the serious circumstances of appellant’s lie, our collective experience, and the principles of Sales, we conclude that we can reliably determine what sentence would have been imposed if these errors had not occurred. Id. at 10. Having determined that it could reassess the sentence, the Army court affirmed only so much of the sentence as provided for a bad-conduct discharge and confinement for two years. DISCUSSION Buber claims that the sentencing landscape in this case changed so dramatically that even the experienced judges of the Army court could not make “a rehable determination as to the minimum punishment a panel would have imposed had the remaining charge and specification stood alone.” Buber suggests further that a single specification alleging a false official statement might not even be tried by court-martial. He claims that given the mitigating evidence of good duty performance and soldierly character, this reassessment was an abuse of discretion and miscarriage of justice. The Government responds that there was no abuse of discretion. Noting that the false official statement related to a child’s death and could have involved serious consequences, the Government urges that the Army court could “reliably determine the sentence that would have been imposed absent the alleged error in this case.” We will overturn a Court of Criminal Appeals’ reassessment only for obvious miscarriages of justice or abuses of discretion. United States v. Doss, 57 M.J. 182, 185 (C.A.A.F. 2002); United States v. Eversole, 53 M.J. 132, 133 (C.A.A.F.2000); United States v. Harris, 53 M.J. 86, 88 (C.A.A.F.2000); United States v. Curtis, 52 M.J. 166, 169 (C.A.A.F.1999). Buber bears the burden of showing that the Army court’s reassessment of his sentence was an abuse of discretion. United States v. Hawes, 51 M.J. 258, 260 (C.A.A.F.1999). In United States v. Sales, this court articulated the standard to be applied in determining whether a sentence may be reassessed to cure prejudicial error: In connection with reassessment, we have emphasized that, when a Court of Military Review reassesses a sentence because of prejudicial error, its task differs from that" }, { "docid": "7479630", "title": "", "text": "of the Error We have examined the record, and we found no other error at trial. The remaining error, assigned by appellant, will be mooted by our remedial action on the sentence, to which we now turn. Because we have found the error discussed above, we must reassess the sentence to assure that no greater sentence is approved than would have been adjudged at trial, had the error not occurred. United States v. Peoples, 29 M.J. 426 (C.M.A.1990); United States v. Sales, 22 M.J. 305 (C.M.A.1986). See generally, United States v. Waits, 32 M.J. 274, 276-77 (C.M.A.1991). We are satisfied that we can do so. Sergeant Bost was convicted both of the larceny that we have discussed and of a false statement made to induce payment of the BAQ. The defense had moved for dismissal of the false statement charge as multiplicious. The military judge deferred his ruling and returned to the matter before sentencing. With defense concurrence, the military judge found the two charges multiplicious for both findings and sentencing and ordered them consolidated instead of dismissing one. He instructed that the maximum confinement that could be imposed was 5 years, the limit for either charge separately. The members sentenced Sergeant Bost to be discharged from the service with a bad-conduct discharge, to be confined for 1 year, to forfeit $500 of his pay per month for 12 months, and to be reduced to E-l. One is tempted to find no possibility of error affecting the sentence, but there remains the possibility that, within the 5-year limit, the members adjudged a more severe sentence than they would otherwise have adjudged because they based it in part on their findings of fact about the larceny. Meanwhile, unraveling the mystery of BAQ entitlements has taken so long in this case that Sergeant Bost has served his confinement. Accordingly, we will remedy the findings error by relief from the forfeitures adjudged at trial. So much of the findings as state the offense of false official statement in violation of Article 107 are affirmed. So much of the remaining findings as relate only" }, { "docid": "12032510", "title": "", "text": "judge should ascertain the existence or nonexistence of a pretrial agreement or any other agreement in connection with the stipulation, and conduct a tailored Green inquiry into the provisions of such agreement. The judge should then conclude the Bertelson inquiry by tailoring the questions in the standard guilty plea inquiry to fit those necessary in determining the admissibility of the confessional stipulation. Our review of the record of trial convinces us beyond a reasonable doubt that there is evidence independent of the confessional stipulation satisfying the elements of proof of each offense of which appellant was found guilty, except for the one-day AWOL. Although we could return this case for a proceeding in revision at which the military judge would conduct a Bertelson inquiry into the admissibility of that portion of the stipulation dealing with the one-day AWOL, see United States v. Rivera, 12 M.J. 532, 534 (A.F.C.M.R.1981), we decline to do so in the interest of judicial economy. Instead, we will set aside the affected guilty finding and reassess the sentence. With respect to sentence reassessment, we note the military judge incorrectly admitted a summarized record of proceedings under Article 15, UCMJ (DA Form 2627-1), during the sentencing portion of trial. In view of the offenses of which appellant was found guilty, his dismal rehabilitative potential as a soldier, and the overall record of trial, we are convinced the military judge would have adjudged a bad-conduct discharge and confinement and partial forfeitures for two months even had he acquitted appellant of the one-day AWOL and not considered the summarized Article 15 proceedings in determining his sentence. See United States v. Sales, 22 M.J. 305 (C.M.A.1986). The finding of guilty of Specification 2 of Charge I is set aside and that specification is dismissed. The remaining findings of guilty and only so much of the sentence as provides for a bad-conduct discharge, confinement for two months, and forfeiture of $443.00 pay per month for two months affirmed. Senior Judge COKER and Judge GILLEY concur. . The deletions removed from the stipulation the discussion of the alleged missing movement. . The" }, { "docid": "3675150", "title": "", "text": "difficult for the appellant, the military judge did not abuse his discretion by precluding trial defense counsel from discussing the matter during argument. Improper Convening Authority Action The appellant was sentenced to a dishonorable discharge, forfeiture of all pay and allowances and reduction to the grade of E-l. The convening authority approved the sentence as adjudged. The appellant asserts the convening authority’s action violated R.C.M. 1107(d)(2). Specifically, the Discussion to R.C.M. 1107(d)(2) states, “When an accused is not serving confinement, the accused should not be deprived of more than two-thirds pay for any month as a result of one or more sentences by court-martial and other stoppages or involuntary deductions, unless requested by the accused.” The government counsel concedes that by application of the Discussion in R.C.M. 1107(d)(2), and the holding in United States v. Warner, 25 M.J. 64 (C.M.A.1987), forfeiture should have been limited to two-thirds of the appellant’s pay. We agree. We find the approved sentence materially prejudiced the substantial rights of the appellant because it exceeds the maximum authorized. See Article 59(a), UCMJ, 10 U.S.C. § 859(a). We now analyze the case to determine whether we can reassess the sentence. United States v. Doss, 57 M.J. 182, 185 (C.A.A.F.2002). Before reassessing a sentence, this Court must be confident “that, absent any error, the sentence adjudged would have been of at least a certain severity.” United States v. Sales, 22 M.J. 305, 308 (C.M.A.1986). A “dramatic change in the ‘penalty landscape’ ” gravitates away from our ability to reassess a sentence. United States v. Riley, 58 M.J. 305, 312 (C.A.A.F.2003). Ultimately, a sentence can be reassessed only if we “confidently can discern the extent of the error’s effect on the sentencing authority’s decision.” United States v. Reed, 33 M.J. 98, 99 (C.M.A.1991). In United States v. Harris, 53 M.J. 86, 88 (C.A.A.F.2000), our superior court decided that if the appellate court “cannot determine that the sentence would have been at least of a certain magnitude,” it must order a rehearing. See also United States v. Poole, 26 M.J. 272, 274 (C.M.A.1988). Although the approved forfeitures exceed the maximum" }, { "docid": "16068485", "title": "", "text": "v. Pollard, 38 M.J. 41, 52 (C.M.A.1993) (quotation marks omitted). And, of course, the law presumes the innocence of an accused, notwithstanding anything that may be known before trial, until the government proves each element of the crime beyond a reasonable doubt. “In the courtroom, the presumption of innocence means not only that the Government bears the burden of proving every element of crime beyond a reasonable doubt, but that the trier of fact—panel, jury, or judge—approaches the case without negative predisposition drawn from the accused’s presence in the courtroom.” United States v. Washington, 57 M.J. 394, 402 (C.A.A.F.2002) (Baker, J., concurring). Indeed, law would operate with great difficulty were it not for the use of presumptions. Presumptions are pragmatic creations, “rooted less in the absolute certitude that the presumption is true than in the belief that it represents a reasonable practical accommodation of the interests of the state and the defendant in the criminal justice process.” Richardson v. Marsh, 481 U.S. 200, 211, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987). In Sales and its antecedents, we adopted a further presumption of law that a Court of Criminal Appeal could, in certain contexts, “determine to its satisfaction that, absent any error, the sentence adjudged would have been of at least a certain severity____” Sales, 22 M.J. at 308. Of course, as Appellant points out, there is a certain leap of logical faith involved in such an assumption. Absent clairvoyance, we cannot actually know how a military judge or a panel of members would have sentenced an appellant following a change in factual circumstances. This is especially true within a sentencing construct not based on guidelines or bands, but on discretionary sentence máximums and individualized adjudication. However, this Court nonetheless concluded in Sales that the lower court may reassess an appropriate sentence for an offense so long as the reassessed sentence “is no greater than that which would have been imposed if the prejudicial error had not been committed.” Id. Our holding in Sales was based on an understanding that given the substantial experience of the lower court, it could act" }, { "docid": "1290531", "title": "", "text": "that the false official statement related to a child’s death and could have involved serious consequences, the Government urges that the Army court could “reliably determine the sentence that would have been imposed absent the alleged error in this case.” We will overturn a Court of Criminal Appeals’ reassessment only for obvious miscarriages of justice or abuses of discretion. United States v. Doss, 57 M.J. 182, 185 (C.A.A.F. 2002); United States v. Eversole, 53 M.J. 132, 133 (C.A.A.F.2000); United States v. Harris, 53 M.J. 86, 88 (C.A.A.F.2000); United States v. Curtis, 52 M.J. 166, 169 (C.A.A.F.1999). Buber bears the burden of showing that the Army court’s reassessment of his sentence was an abuse of discretion. United States v. Hawes, 51 M.J. 258, 260 (C.A.A.F.1999). In United States v. Sales, this court articulated the standard to be applied in determining whether a sentence may be reassessed to cure prejudicial error: In connection with reassessment, we have emphasized that, when a Court of Military Review reassesses a sentence because of prejudicial error, its task differs from that which it performs in the ordinary review of a case. Under Article 66, Uniform Code of Military Justice, 10 U.S.C. § 866, the Court of Military Review must assure that the sentence adjudged is appropriate for the offenses of which the accused has been convicted; and, if the sentence is excessive, it must reduce the sentence to make it appropriate. However, when prejudicial error has occurred in a trial, not only must the Court of Military Review assure that the sentence is appropriate in relation to the affirmed findings of guilty, but also it must assure that the sentence is no greater than that which would have been imposed if the prejudicial error had not been committed____ United States v. Suzuki, 20 M.J. 248, 249 (C.M.A.1985). Thus, if the court can determine to its satisfaction that, absent any error, the sentence adjudged would have been of at least a certain severity, then a sentence of that severity or less will be free of the prejudicial effects of error; and the demands of Article 59(a) will" }, { "docid": "16068484", "title": "", "text": "of Criminal Appeals is affirmed. BAKER, Judge (concurring in the result): I agree with the majority’s conclusion that the Air Force Court of Criminal Appeals did not abuse its discretion in reassessing Appellant’s sentence. Therefore, I also agree with the result. However, I believe we are nearing a crossroads on sentence reassessment under United States v. Sales, 22 M.J. 305 (C.M.A.1986), if we have not already reached it. In my view, we should either reassess the continued viability of the Sales presumption or offer further guidance on its application. This case offers an opportunity to do so. The law invokes and accepts a number of presumptions. For example, “military judges are presumed to know the law and to follow it, absent clear evidence to the con-trary____ [Ajppellate judges of the Courts of Criminal Appeals are deserving of no less a presumption.” United States v. Mason, 45 M.J. 483, 484 (C.A.A.F.1997) (citations omitted). In addition, “in the absence of evidence to the contrary, court members are presumed to have followed the military judge’s instructions.” United States v. Pollard, 38 M.J. 41, 52 (C.M.A.1993) (quotation marks omitted). And, of course, the law presumes the innocence of an accused, notwithstanding anything that may be known before trial, until the government proves each element of the crime beyond a reasonable doubt. “In the courtroom, the presumption of innocence means not only that the Government bears the burden of proving every element of crime beyond a reasonable doubt, but that the trier of fact—panel, jury, or judge—approaches the case without negative predisposition drawn from the accused’s presence in the courtroom.” United States v. Washington, 57 M.J. 394, 402 (C.A.A.F.2002) (Baker, J., concurring). Indeed, law would operate with great difficulty were it not for the use of presumptions. Presumptions are pragmatic creations, “rooted less in the absolute certitude that the presumption is true than in the belief that it represents a reasonable practical accommodation of the interests of the state and the defendant in the criminal justice process.” Richardson v. Marsh, 481 U.S. 200, 211, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987). In Sales and its" }, { "docid": "16068482", "title": "", "text": "sentence that would have been imposed if there had been no error. 22 M.J. at 308. “Thus, if the court can determine to its satisfaction that, absent any error, the sentence adjudged would have been of at least a certain severity, then a sentence of that severity or less will be free of the prejudicial effects of error____” Id. However, “[i]f the error at trial was of constitutional magnitude, then the court must be satisfied beyond a reasonable doubt that its reassessment cured the error.” United States v. Doss, 57 M.J. 182, 185 (C.A.A.F.2002) (citing Sales, 22 M.J. at 307); see also United States v. Buber, 62 M.J. 476 (C.A.A.F.2006); United States v. Berry, 61 M.J. 91 (C.A.A.F.2005). Further, it is error for a lower court to use an incorrect standard. United States v. Baier, 60 M.J. 382 (C.A.A.F.2005). We hold that the CCA correctly applied Sales. We note that the lower court has reviewed the records of a substantial number of courts-martial involving convictions for child pornography activities and offenses involving sexual misconduct with children and has extensive experience with the level of sentences imposed for such offenses under various circumstances. In this case, a substantial maximum was available based on the remaining charge and specification. The reassessed sentence was well below that maximum. The remaining charge, involving an effort to solicit children for sexual activity via a website posted on the Internet, was the most serious offense and had a negative impact in the community around Shaw Air Force Base. The website generated a number of hostile e-mail responses and several complaints to law enforcement officials. The Chief of Police for Sumter, South Carolina, was “appalled” when she learned that a member of the United States Air Force had created the site. Thus, we hold that the CCA did not abuse its discretion in concluding that it could determine to its satisfaction that, absent any error, the adjudged sentence for the remaining offense would have been at least the severity of the sentence that the court approved on reassessment. The decision of the United States Air Force Court" }, { "docid": "3675151", "title": "", "text": "UCMJ, 10 U.S.C. § 859(a). We now analyze the case to determine whether we can reassess the sentence. United States v. Doss, 57 M.J. 182, 185 (C.A.A.F.2002). Before reassessing a sentence, this Court must be confident “that, absent any error, the sentence adjudged would have been of at least a certain severity.” United States v. Sales, 22 M.J. 305, 308 (C.M.A.1986). A “dramatic change in the ‘penalty landscape’ ” gravitates away from our ability to reassess a sentence. United States v. Riley, 58 M.J. 305, 312 (C.A.A.F.2003). Ultimately, a sentence can be reassessed only if we “confidently can discern the extent of the error’s effect on the sentencing authority’s decision.” United States v. Reed, 33 M.J. 98, 99 (C.M.A.1991). In United States v. Harris, 53 M.J. 86, 88 (C.A.A.F.2000), our superior court decided that if the appellate court “cannot determine that the sentence would have been at least of a certain magnitude,” it must order a rehearing. See also United States v. Poole, 26 M.J. 272, 274 (C.M.A.1988). Although the approved forfeitures exceed the maximum punishment authorized, we are confident the convening authority would have approved a punishment which includes a forfeiture of two-thirds of his pay per month from the time the sentence was adjudged until he took action on this case. Considering the evidence in the record, we find that a reassessed sentence of a dishonorable discharge, forfeiture of $933.00 pay per month for two months and reduction to the grade of E-l cures the error. We also find, after considering the appellant’s character, the nature and seriousness of the offense, and the entire record, that the reassessed sentence is appropriate. Sentence Severity Finally, the appellant argues a dishonorable discharge is too severe given the members sentenced him to no confinement. We review sentence appropriateness de novo. United States v. Baier, 60 M.J. 382, 383-84 (C.A.A.F.2005). We make such determinations in light of the character of the offender, the nature and seriousness of his offenses, and the entire record of trial. United States v. Snelling, 14 M.J. 267, 268 (C.M.A.1982). Additionally, while we have a great deal of" }, { "docid": "1290533", "title": "", "text": "be met. Of course, even within this limit, the Court of Military Review will determine that a sentence it proposes to affirm will be “ap propriate,” as required by Article 66(c). In short, a reassessed sentence must be purged of prejudicial error and also must be “appropriate” for the offense involved. 22 M.J. at 307-08 (footnote omitted). To validly reassess a sentence to purge the effect of error, the court must be able to make a number of determinations. The court must be able to discern the extent of the error’s effect on the sentence. Hawes, 51 M.J. at 260 (quoting United States v. Reed, 33 M.J. 98, 99 (C.M.A.1991)). The reassessment must be based on a conclusion that the sentence that would have been imposed at trial absent the error “would have been at least of a certain magnitude.” Doss, 57 M.J. at 185. This conclusion about the sentence that would have been imposed must be made “with confidence.” United States v. Taylor, 51 M.J. 390, 391 (C.A.A.F.1999); see also Eversole, 53 M.J. at 134 (indicating that there must be a “degree of certainty” in determining what the trial court would have done absent the error). No higher sentence than that which would have been imposed by the trial forum may be affirmed. Hawes, 51 M.J. at 260 (quoting United States v. Davis, 48 M.J. 494, 495 (C.A.A.F.1998)). A “dramatic change in the penalty landscape” gravitates away from the ability to reassess. United States v. Riley, 58 M.J. 305, 312 (C.A.A.F.2003). This court will overturn the lower court’s reassessment of a sentence where we cannot be confident that the Court of Criminal Appeals could “reliably determine what sentence the members would have imposed.” Id.; see United States v. Vasquez, 54 M.J. 303, 306 (C.A.A.F. 2001). Although the content of this false statement relates to the injury and eventual death of a young child, we must bear in mind that an accused is to be sentenced only for the offenses he has been found guilty of committing beyond a reasonable doubt. Buber’s reassessed sentence must be punishment for only the" }, { "docid": "14920804", "title": "", "text": "enunciated by our superior court in United States v. Doss, 57 M.J. 182, 185 (C.A.A.F.2002) and United States v. Sales, 22 M.J. 305 (C.M.A.1986). For errors of a constitutional magnitude, we must be persuaded beyond a reasonable doubt that our sentence reassessment has rendered the constitutional error harmless. United States v. Boone, 49 M.J. 187, 195 (C.A.A.F.1998). In ruling on the multiplicity issue at trial, the military judge stated his findings were in the alternative and entered for purposes of exigencies of proof. See R.C.M. 907(b)(3)(B) and R.C.M. 307(c)(4), Discussion. He went on to note that he considered the charges multiplicious for sentencing and thus determined the maximum confinement was 10 years—the maximum authorized confinement for involuntary manslaughter (as compared to 7 years for maiming). In sentencing the appellant to a dishonorable discharge, confinement for 6 years, forfeiture of all pay and allowances, and reduction to the grade of E-l, the military judge noted for purposes of appellate review that the court's sentence would have been “exactly the same” for either offense. Consequently, based upon the military judge’s clear statement of intent, we are satisfied beyond a reasonable doubt that the multiplicious charge had no effect on his determination of an appropriate sentence. The approved findings, as conditionally modified, and the sentence are correct in law and fact and no error prejudicial to the substantial rights of the appellant occurred. Article 66(c), UCMJ, 10 U.S.C. § 866(c); United States v. Reed, 54 M.J. 37, 41 (C.A.A.F.2000). Accordingly, the conditionally approved findings and the approved sentence are AFFIRMED. . At common law, an accused could not be convicted of murder unless the victim's death occurred within a year and a day of the injury. This common law rule was omitted from military practice in 1951 because it was considered \"archaic.” Legal and Legislative Basis, Manual for Courts-Martial, United States, 269 (1951). . For comparison purposes, we note that the MCM does not define or otherwise address the issue of brain death. However, in United States v. Gomez, 15 M.J. 954, 958-62 (A.C.M.R.1983), the Army Court of Military Review adopted a definition" }, { "docid": "21274160", "title": "", "text": "called Mrs. DI as a hostile witness. During her testimony, trial defense counsel elicited from her the fact that appellant had admitted to her that improper touchings occurred with the other children in question but the touchings were accidental. First, this testimony more than satisfies the Huddleston test, as appellant purported ly admitted the other offenses in question. Second, in view of the fact that the defense of accident was in issue, one would be hard pressed to conclude the prejudicial nature of this evidence substantially outweighed its probative value. Therefore, although the majority excludes it, by my assessment, its admission obviously was harmless error since it eventually was rendered properly admissible. With regard to the improper admission of hearsay evidence, I agree that a constitutional test for harmless error must be applied. The error must be found harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). When I apply this test, I am convinced, beyond a reasonable doubt, that the impact of this evidence on the members’ findings was harmless. As I noted above, ALI’s testimony doomed appellant. It was clear, withstood cross-examination and, when combined with the evidence of appellant’s opportunity to commit the offenses and his admissions, it alone is sufficient to convict him. Although I find no prejudice to appellant with respect to findings, I agree that we cannot be so convinced with regard to the sentence. Even harmless error on findings may impact the sentence. See United States v. Mann, 26 M.J. 1, 6 (C.M.A.1988) (Everett, C.J., concurring and dissenting in part). Accordingly, I agree with the reassessment of the sentence to cure any error. III. OTHER ISSUES A Accident Instruction The defense of accident clearly was placed in issue by the evidence, and trial defense counsel specifically requested the instruction. Therefore, the military judge erred in not giving^ an accident instruction unless it was covered by the instructions given. R.C.M. 1005(c); United States v. Briggs, 42 M.J. 367 (1995). The members were instructed that they had to be convinced, beyond a reasonable doubt, that appellant" }, { "docid": "22723643", "title": "", "text": "297, 299 (C.M.A.1982) (Everett, C.J., concurring in the result). If, therefore, the findings must be considered multiplicious, obviously the military judge erred at trial in computing the maximum sentence imposable and instructing the members accordingly. Now, the question is whether that error obligated the Court of Military Review to give appellant relief by granting a rehearing on sentence or by reducing the sentence pursuant to its own reassessment thereof. In some cases, the Court of Military Review may conclude that it cannot reliably determine what sentence would have been imposed at the trial level if the error had not occurred. Under these circumstances, a rehearing on sentence is in order. Cf. United States v. Gibson, 11 M.J. 435 (C.M.A.1981); United States v. Voorhees, 4 U.S.C.M.A. 509, 16 C.M.R. 83 (1954). At this rehearing, the accused would be present; and, just as if he had not previously been sentenced, both the accused and the Government could offer evidence as to what sentence would be appropriate. The sentence originally adjudged would be relevant only in setting a ceiling on the maximum punishment imposable. See Art. 63, UCMJ, 10 U.S.C. § 863. On other occasions, the Court of Military Review may be convinced that even if no error had occurred at trial, the accused’s sentence would have been at least of a certain magnitude. Under those circumstances the Court of Military Review need not order a rehearing on sentence, but instead may itself reassess the sentence. United States v. Bullington, 13 M.J. 184 (C.M.A.1982). Although reassessment does not provide the accused an opportunity to be present or to offer new evidence in mitigation and extenuation, this procedure complies with constitutional requirements, see Jackson v. Taylor, 353 U.S. 569, 77 S.Ct. 1027, 1 L.Ed.2d 1045 (1957); and it has often been employed by Courts of Military Review without criticism from this Court. Of course, if the error at trial was one of constitutional magnitude, then it would seem necessary that the Court of Military Review should be persuaded beyond a reasonable doubt that its reassessment has rendered harmless any error affecting the sentence adjudged" }, { "docid": "12081178", "title": "", "text": "for the necessary element that the appellant had actual knowledge of the order in question. Accordingly, we hold that the ap pellant pleas to Charge I and its single Specification are improvident. The findings of guilty of this charge and specification are set aside and Charge I and its Specification are dismissed. We will reassess the sentence. VI The remaining assignments of error are without merit. We are specifically convinced beyond a reasonable doubt of the appellant’ guilt of Specification 1 of Charge II and of Charge II. In addition, we conclude that the sentence, as reassessed herein, is appropriate for the offense of which the appellant was convicted. VII Accordingly, the findings, as modified herein, are affirmed. We have reassessed the sentence in accordance with United States v. Sales, 22 M.J. 305 (C.M.A.1986), and affirm only so much of the sentence as provides for a dishonorable discharge, confinement for 78 months, forfeiture of $289.00 pay per month for a period of 22 months, and reduction to pay grade E-l. Chief Judge LARSON and Senior Judge ORR concur. . I. THE GOVERNMENT FAILED TO PROVE APPELLANT GUILTY BEYOND A REASONABLE DOUBT OF SPECIFICATION 1 OF CHARGE II. II. THE MILITARY JUDGE ERRED IN DENYING APPELLANT’S PRETRIAL MOTION TO SUPPRESS HIS STATEMENT TO NAVAL INVESTIGATIVE SERVICE AGENTS. III. THE MILITARY JUDGE ERRED IN PERMITTING THE GOVERNMENT TO PRESENT A’S TESTIMONY VIA CLOSED-CIRCUIT TELEVISION. IV. THE MILITARY JUDGE ERRED IN ADMITTING STATEMENTS BY A TO MELISSA ANDERSON. V. A SENTENCE OF SEVEN YEARS CONFINEMENT IS INAPPROPRIATELY SEVERE FOR THESE OFFENSES UNDER THE CIRCUMSTANCES OF THIS CASE. . The inappropriate touching admitted to by the appellant consisted of “tickling\" A’s vaginal area. . Ironically, she also testified for the defense during their case-in-chief and assailed the character of A's mother by stating she would not believe her under oath. . The appellant was ultimately acquitted of this charge. Although the judge made no other findings, the statement was also relevant as to a material fact concerning whether the appellant committed indecent acts and would have served the interests of justice by its admission" } ]

[ { "docid": "22692476", "title": "", "text": "The same rules were again laid down in Baubien v. Baubien, 23 id. 190, and in Badger v. Badger, 2 Wall. 95. A general allegation of ignorance at one time and of knowledge at another are of no effect. If the plaintiff made any particular discovery, it should be stated when it was made, what it was, how it was made, and why it was not made sooner. Carr v. Hilton, 1 Curt. C. C. 220. The fraud intended by the section which shall arrest the running of the statute must be one that is secret and concealed, and not one that is patent or-known. Martin, Assignee, &c. v. Smith, 1 Dill. 85, and the authorities cited. “Whatever is notice enough to excite attention and put the party on his guard and call for inquiry, is notice of every thing to which such inquiry might have led. When a person has sufficient information to lead him to a fact, he shall be deemed conversant • of it.” Kennedy v. Greene, 3 Myl. & K. 722. “ The presumption is that if the party affected by any fraudulent transaction or management might, with ordinary care and attention, have seasonably detected it, he seasonably had actual knowledge of it.” Angelí, Lim., sect. 187 and note. A. party seeking to. avoid the bar of the statute on account of fraud must aver and show that he used due diligence to detect it, and if he had the means of discovery in his power, he will be held to have known it. Buckner & Stanton v. Calcote, 28 Miss. 432, 434. See also Nudd v. Hamblin, 8 Allen (Mass.), 130. In Cole v. McGlathry (9 Me. 131), the plaintiff had given the defendant money to pay certain debts. The defendant falsely affirmed he had- paid them, and fraudulently kept the money. It was held that the plaintiff could not recover, because he had at all times the means of discovering the truth by making inquiry of those who should have received the money. In McKown v. Whitmore (31 id. 448), the plaintiff handed the" } ]

[ { "docid": "17315475", "title": "", "text": "thereof, the debt will be assumed to be valid by the debt collector; (4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and (5) a statement that, upon the consumer’s written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor. 15 USC § 1692g(a). Defendants’ June 3, 1999 collection letter includes none of the above statements required by § 1692g(a). However, defendants assert that they sent a proper Notice in a prior letter to plaintiffs dated December 3, 1998. Kenneth Van Wes-trienen asserts that he never received that letter with the Notice: Q: Okay, do you remember receiving some kind of notice from-Americontinen-tal in December of 1998? A: No. Q: The address listed on the notice [the Notice letter], is that your correct address? A: It is. Q: To your knowledge, was there any reason in December ’98 that you were not receiving mail or could not receive mail? A: We have had problems with our mail Kenneth Van Westrienen Depo, p. 18. Whether plaintiffs actually received the Notice is immaterial, however. The Ninth Circuit has stated that “section 1692g(a) requires only that a Notice be ‘sent’ by a debt collector. A debt collector need not establish actual receipt by the debtor.” Mahon v. Credit Bureau of Placer County, Inc., 171 F.3d 1197, 1201 (9th Cir.1999). In Mahon, the defendant organization presented evidence that its standard business practice established that the [Notice] was sent to the [plaintiffs’] home via first class mail. The [defendant’s] CUBS system generated the [Notice], and then another machine mechanically addressed and stuffed the [Notice] into an envelope addressed to the [plaintiffs]. The [Notice] was mailed. Before mailing, [defendant’s] employees ensured that the number of" }, { "docid": "17243888", "title": "", "text": "plaintiff but nevertheless allegedly prevented discovery by Ohio, the second doctrine of fraudulent concealment urged by appellant would simply give it a second arrow to its bow. We hold, therefore, that there is but one federal doctrine of equitable tolling, as set forth in Holmberg v. Armbrecht, supra. V. Shortly after appellant filed Ohio v. Crofters, that case was consolidated with many other suits involving the same or related facts. The court below had no need to enquire as to whether appellant actually obtained the pleadings and other papers from the actions consolidated with Ohio’s, since a diligent plaintiff would obtain such documents and scrutinize them. Similarly, appellant as an active and major participant in the KRC bankruptcy proceeding had constructive if not actual knowledge of all papers filed by the trustee in bankruptcy and responses thereto. Appellant argues that the complaints filed by other plaintiffs contained mere allegations of fraud by Lowry, and that Ohio cannot be charged with discovery of the fraud until such allegations and suspicions are supported by hard evidence. We disagree. Discovery under the equitable tolling doctrine merely starts the limitations period running. From that point on, appellant had three years to find the minimum support necessary for filing a complaint. After filing it, Ohio would have had more time to develop the evidence and to refine the issues through pre-trial discovery. Ohio knew no later than 1972 that the “sale” by KRC of certain Arctic land permits was fraudulent. In the exercise of reasonable diligence, Ohio could have learned that KRC’s accountants, before writing up KRC’s assets on the basis of this sale, had obtained a letter, signed by King and Lowry, certifying that the sale was genuine. A plaintiff’s discovery that a document contains falsehoods material to a fraud against him starts the statute running as to the known authors of the document. Lowry was not only a KRC director and KRC’s general counsel; he was known to be intimately involved in King’s corporate and personal financial dealings at the time of the Arctic land transaction. In view of this, a diligent plaintiff" }, { "docid": "17093008", "title": "", "text": "purchase by the trustees and nearly three years after they had conveyed it to a new corporation, the Ohio and Mississippi Bailway Company. On that day he served a formal written notice upon Campbell, as chairman of the trustees, that he held and owned the six construction bonds, (describing them,) and demanded that Campbell pay or secure to him the aggregate of principal and interest then due on them — $10,830. Then ensued another period of inaction ; for the present suit was not brought until August 7, 1876, more than thirteen years after the trustees purchased the second-mortgage bonds for the benefit of the trust, more than nine years after the purchase of the road, at the foreclosure sale, for the benefit of certificate holders, and nearly nine years after the interview between the plaintiff and Campbell, in which the latter told him that his bonds had been cut off by that salé and were not worth anything. The record discloses no element of fraud or concealment upon the part of the trustees or- of any of them. What they did was-done openly and was known or might have been known by the exercise of the slightest diligence upon the part of every one interested in the property of the old corporation. The plaintiff unquestionably knew, or could easily have ascertained, before the trustees bought the property at the foreclosure sale — at any rate, before they transferred it to the new corporation — that their purchase would be, and was, exclusively for the benefit of certificate holders interested in the trust. Although his bonds had not then matured, he could have taken steps to prevent any transfer of the property that would impair his equitable rights in it or instituted proper judicial proceedings, of which all would be required to take notice, to have his interest in the property adjudicated. He allowed the trust to be wound up, and postponed any appeal to a court of equity based upon an alleged breach of trust by the trustees, until six out of the seven original trustees had died. His" }, { "docid": "2615759", "title": "", "text": "Id. at 1110-11. We emphasized that the Integra I appellants had made “no showing ... that some better method of notification offered a practicable means of notifying the class.” Id. at 1111. Appellants add little to the arguments of their fellow class members in Integra I. They suggest that, at least in regard to the final notice of the settlement, where the district court was aware that the prior notice of the hearing had failed to reach 1455 class members, “the district court should have required greater efforts to reach [those] defendants.” Defendants-Appellants’ Br. at 52. In support of this claim, they cite one case in which the court had ordered the non-class party to remail notices that were returned by the postal service and to “retain an address research firm to research any returned notices that do not include a forwarding address.” In re The Prudential Ins. Co. of Am. Sales Practices Litig., 177 F.R.D. 216, 222 (D.N.J.1997). That court, however, recognized that its notice instructions “far exceeded the requirements of Rule 28 and due process.” Id. at 232. Here, while the district court did not require the use of an address research service after receiving the Trustee’s report on the results of the hearing notice, it did order that notice of the settlement’s approval be given by publication as well as by mail. In the absence of a showing by the appellants that another reasonable method of supplementing the Trustee’s mailing list would have significantly increased the number of notices actually received, we adhere to Integra I’s holding that the notice given satisfied due process. In reaching this conclusion, we are cognizant of the concern that, in some isolated instances, individual class members may have a judgment entered against them without having received actual notice of the opportunity to raise objections or individual defenses before the expiration of the deadline for doing so. See also Herbert B. Newberg & Alba Conte, 2 Newberg on Class Actions §§ 4:70,:71 (4th ed.2002) (raising the concern that defendant class members without notice may be bound by a settlement even after the" }, { "docid": "23484505", "title": "", "text": "period began to run five days later. The civil complaint, filed June 7, 1984, was not within the ninety-day statutory period and was therefore time-barred. Id. at 326-27. In the present case, the right-to-sue notice was sent by certified mail on March 18, 1994, to the Moanalua address that Nelmida had given to the EEOC. The post office attempted delivery of the letter on March 19, 1994, at the Moanalua address, as indicated by the handwritten date “3/19” on the envelope. Because no one was at home to receive the letter, the post office left a notice that delivery had been attempted and that the letter was available at the post office for pick up. The post office left a second notice at the Moanalua address on March 25, 1994, indicating that there were ten days remaining to pick up the letter or to request redelivery. The letter remained at the post office, awaiting pick up, until April 3, 1994. Because Nelmida failed to pick the letter up, it was returned to the EEOC as unclaimed. Nelmida did not file suit until July 6,1994, more than one hundred days after delivery of the original right-to-sue notice was attempted at the address of record with the EEOC. We hold that the ninety-day period within which to file suit began running when delivery of the right-to-sue notice was attempted at the address of record with the EEOC and that Nelmida’s Title VII action is therefore time-barred. See St. Louis, 744 F.2d at 1317. B. Equitable Tolling The ninety-day period within which to file a civil action after dismissal of the charge by the EEOC is a statute of limitations subject to the doctrine of equitable tolling. Scholar, 963 F.2d at 266-67. Equitable tolling is, however, to be applied only sparingly, Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 458, 112 L.Ed.2d 435 (1990), and “[cjourts have been generally unforgiving ... when a late filing is due to claimant’s failure ‘to exercise due diligence in preserving his legal rights,’” Scholar, 963 F.2d at 268 (quoting Irwin, 498 U.S." }, { "docid": "4706866", "title": "", "text": "have included it in the statute. For the foregoing reasons, the rationale and conclusion reached in the Saberman case, supra., cannot be applied to the facts of the case at bar. The Debtor offers the case of Dutt v. Marion Air Conditioning Sales, Inc., 159 Ohio St. 290, 50 Ohio Op. 293, 112 N.E.2d 32 (1953), to buttress its position that a lien for unpaid unemployment contributions shall not be valid against the claim of any mortgagee or other lienholder of record at the time the notice of the lien is filed, but it is valid against claims of this kind arising after the notice is filed. Although the Dutt case falls under the antiquated Ohio General Code Section 1345-4, the section reveals essentially the same language as Section 4141.23 of the Ohio Revised Code. Furthermore, although the facts are distinguishable, the pertinent legal reasoning and conclusions of the case are applicable to the case at bar. The relevant facts in the Dutt case are as follows: Marion Air Conditioning Sales, Inc. was placed into receivership. A dispute arose over who had priority to the funds being held by the receiver: a mortgagee bank whose chattel mortgage was dated and filed on February 18, 1950, or the State of Ohio for unpaid unemployment compensation contributions which notice of lien was filed February 2, 1950. Dealing with this issue, the Ohio Supreme Court stated that the claim of the State of Ohio became a lien upon the personal property of the employer and was subsequently perfected by the filing of the notice of lien prior to the filing of the bank’s mortgage. Therefore, by the plain meaning of General Code Section 1345-4, the State’s lien being first in time, was valid as against the claim of a mortgagee bank which was not of record at the time the state filed its notice of lien. The clear factual distinction to the case at bar is that the lien of the State in this case was perfected after the claim of a bona fide purchaser or mortgagee became of record upon the filing" }, { "docid": "716269", "title": "", "text": "receipts signed by Robert Haag. The Haags argue the government failed to show that the letters were actually placed into the envelopes sent to them, but deposition testimony of a government employee describes the ordinary procedures, which explicitly include the mailing of the letters in cases like the Haags’; and, absent affirmative evidence to the contrary, the inference is that the procedure was followed in this case and that the envelope did not arrive empty. Godfrey v. United States, 997 F.2d 335, 338 (7th Cir.1993). Of course, Robert Haag could have offered an affidavit that the envelopes did arrive empty or contained something other than the proper notices and that might have generated a genuine issue of fact. But he did not: he merely claimed not to remember what was inside the envelopes. Haag’s lack of memory in these circumstances is hardly affirmative evidence of non-receipt that might bar summary judgment for the government. The Haags say that neither the government’s affiant nor its deponent had personal knowledge that the letters were placed in the envelopes, but the presence of the information in the computer system and the nature of ordinary practice were established based on personal knowledge, and that was enough to infer what actually happened. The Haags suggest that other government employees would have testified in their favor; but the suggestion is pure speculation and does not defeat summary judgment. Iverson, 452 F.3d at 98. The Haags say that, before the case was transferred to Judge Young, Judge Keeton had found that the government’s evidence failed to support summary judgment, noting that the docket sheet for a December 15, 2005, hearing that states: “REK rules that 11/21/03 letter does not provide proof of notice.” In fact, the transcript shows that Judge Keeton chose not to rule on the summary judgment motion and instead merely permitted the Haags additional time for discovery. The Haags also contest the district court’s denial of their motion to enforce a supposed settlement agreement to provide a substitute hearing; as already noted, the government counsel unilaterally proposed the substitute hearing before discovering that letters" }, { "docid": "7903939", "title": "", "text": "In 1994, the bankruptcy court ruled that the interest in the property owned by Suzanne and her ex-husband was properly included in the bankruptcy estate and was owned by the Bankruptcy Trustee, Allen Harvey (“Bankruptcy Trustee” or “Trustee”). In June of 1996, J.B. and Gail Grant executed a special mortgage in favor of the Central Bank in Monroe, Louisiana, burdening fifteen different properties, including their half interest in the property at issue. In December of 1996, the Richland Parish sheriffs office followed the same procedure it had followed in earlier years, and sent a single bill for all ad valorem taxes due on the property by certified mail to T.A. Grant’s law office. All of the previous bills had been paid. The 1996 bill, however, was not paid, and in May of 1997, the Sheriff sent a delinquency notice to the same address by certified mail, advising of the tax delinquency and the impending tax sale if the taxes remained unpaid. The tax bill remained unpaid. During bankruptcy proceedings, T.A. Grant testified that he did not remember receiving the notices and could not find them in his records. Although the notices had been sent by certified mail, there was no evidence that T.A. Grant had signed for the notices. The Bankruptcy Trustee also testified that he had no record of receiving the notices, although T.A. Grant would normally have sent them to him. There was also no evidence that notices had been sent to the Trustee, J.B. and Gail Grant, or to Central Bank. The Sheriff did, however, publish notice of the impending tax sale in the Richland Parish newspaper. The taxes remained unpaid, and the property was sold to the Herringtons at the tax sale in May 1997. The property was estimated to be worth more than $70,000; the taxes owed were $118.19, and the Herringtons bought the property for a total of $227.63. The Sheriff then sent a notice of the sale by first class mail to T.A. Grant at the same address, stating that the property could be redeemed under state law. T.A. Grant did not respond," }, { "docid": "23166538", "title": "", "text": "any of them, had violated its trust. Whether the Belt Company was indebted to the Trust Company. Whether the Trust Company was entitled to hold the collateral which it claimed had been pledged to it by the Belt Company in connection with the debt. \"Whether the said collateral came under the mortgage of the Belt Company and had been acquired by the Southern Company through the foreclosure sale under that mortgage. Whether the Southern Company was liable to the Trust Company for the indebtedness of the Belt Company. These issues were first passed upon by the special master. He found as follows: “No stockholder has at any time objected to any of the transactions complained of in the bill.” “The transactions in dispute were open, not secret or concealed, and were either known to the stockholders, or could have been, if they had been at all diligent in trying to understand such' transactions, which are spread with much explanatory detail, not only on the books of the Trust Company, but also on the books of the railway companies, and the very nature of the transactions, their magnitude and the long period of time over which they extended, tend thoroughly to negative the idea of ignorance on the part of any stockholders.” “The transactions now attacked in the bill were expressly ratified by the stockholders, as shown by the minutes of the corporate meetings.” “The transactions in question are executed contracts, closed and consummated years before the original bill was filed, and, as the accounts between the Trust Company and these other companies were settled, from time to time, the Belt Company gave its notes for the balances due, and which notes were also paid off, from time to time.” “It is shown by the record that the bookkeeping was full, complete, and accurate as to all original entries and otherwise, and that the accounts between the companies were regularly stated and audited each month by formal’ certificates exchanged by their respective auditors, and that the books tallied to a cent.” “The Belt, in the transactions which are now; attacked, received" }, { "docid": "8727618", "title": "", "text": "The Notice from ditech.com was signed by Delphine Trotter. On April 25, 2002 the Court entered an Order on a Motion for Relief from Stay filed by GMAC Mortgage Corporation, listed on Schedule D as holding the first mortgage on the Debtors’ former residence, granting the Motion for Relief from Stay and identifying the property at issue as 6556 Smucker Drive, Westfield, Ohio. The Certificate of Service on the Order indicates that ditech.com was served at the address it had requested. [Docket # 9]. The Debtors had moved from the property some time in March and relocated to Michigan. . On May 13, 2002 the Debtors filed the Motion and served it upon ditech.com. [Docket # 13]. The return of service filed with the Court by the Debtors indicates that the Motion was sent by certified mail to the address ditech.com had requested and that it was received by Ralph Stanton at ditech.com on May 15, 2002. [Docket # 15]. In their Motion the Debtors alleged that ditech.com had contacted them on approximately 15 occasions post-petition to demand payment on the second mortgage. Attached to the Motion were copies of three messages received by Mr. Kortz at his place of employment, two from Bill Brown and one from Mrs. Givi-son. Also attached was a letter from ditech.com to Mr. Kortz, dated March 25, 2002, stating that the account was 60 days past due, that he was in default and that the company “retain[ed] the right to begin foreclosure proceedings.” The letter was sent to Mr. Kortz at the Debtors’ new address — 43234 Raftingway Court, Apt. 2903, Novi, Michigan. The letter was unsigned but provided an 800 number which the Debtors were directed to use to contact ditech.com. The 800 number in the letter corresponds to the 800 number on two of the messages taken for Mr. Kortz at his workplace. On June 12th the Debtors filed a Motion to Reset Hearing Date. The hearing was adjourned to June 26th so that Mr. Kortz could attend. However, no representative from ditech.com appeared either on June 12 or June 26. B." }, { "docid": "10887568", "title": "", "text": "422 F.2d 1233, 1240 (8th Cir.) (\"Federal law since the case of Bailey v. Glover ... has been that in cases involving elements of fraud neither a statute of limitations nor the equitable doctrine of laches can be said to begin to run until the fraud is or should have been discovered.”), cert. denied, 400 U.S. 852, 91 S.Ct. 47, 27 L.Ed.2d 90 (1970). . Long v. Abbott Mortgage Corp., 459 F.Supp. 108, 118 n. 7 (D.Conn.1978) (Newman, J.). . “The fraud and deceit which enable the offender to do the wrong may precede its perpetration. The length of time is not material, provided there is the relation of design and its consummation.” Wood v. Carpenter, 101 U.S. at 143. . Accordingly, we reject defendants' suggestion that the District Court erroneously placed on them the burden of proof on this issue. Richards controls our disposition of this case, as it did that of the District Court, and, under Richards, the instruction was correct. . When a plaintiff receives information sufficient to put him on inquiry notice, the statute of limitations will begin to run if the plaintiff does not reasonably exercise due diligence in conducting the inquiry. In other words, he is held to be on notice of all facts he could have learned through reasonably diligent inquiry. In this case, defendants, who had the burden of proving plaintiffs’ lack of due diligence, offered no evidence of what plaintiffs could have done to find out more about their claims, short of filing suit. As a result, the motions for directed verdicts were properly denied if based on the plaintiffs’ failure of diligence, and the jury’s ruling is clearly reasonable. . Richards, 662 F.2d at 69. . A plaintiff is held to know that subordinates might be implicated if their superiors are involved in a wrong. See Fitzgerald v. Seamans, 553 F.2d 220, 229 (D.C.Cir.1977). While such knowledge will not bar plaintiffs addition of other participants in the course of suit, including subordinates, it will bar plaintiff from filing suit only against subordinates after the statute of limitations has run on" }, { "docid": "19082301", "title": "", "text": "has previously disposed of several other claims contained in the complaint, see Bailey I, 437 B.R. 721, and the only issue remaining is the validity of the Foreclosure Sale. A. Notice of the Foreclosure Sale The Debtor argues that the Foreclosure Sale should be declared void because she did not receive notice of the Foreclosure Sale as required by Massachusetts General Laws (“MGL”) ch. 244, § 14. The Debtor does not dispute Wells Fargo’s contention that the required notices were sent to the Debtor’s address by both certified and first-class mail. Rather, the Debtor says she did not receive the certified mailings because the postal worker left the notice of certified mail at her rarely-used front door instead of at the common mailbox station. According to the Debtor, due to the importance of the rights lost through foreclosure, Wells Fargo simply should have done a better job of insuring that the Debtor actually received the notices. In response, Wells Fargo argues that Massachusetts law requires only that advance notice of a foreclosure sale be properly mailed, and that the foreclosing entity is not required to prove actual receipt of the notice. It was the Debtor’s responsibility, says Wells Fargo, to provide an address where certified mailings and other notices could be received, and her failure to do so cannot now invalidate the foreclosure. B. Whether Wells Fargo Held the Mortgage at the Time of the Foreclosure Sale 1. Travel of the Mortgage With one notable exception discussed below, the parties are substantially in agreement as to the travel of the Mortgage through various entities from execution through foreclosure. On February 24, 1992, the Debtor granted the Mortgage to Shawmut ■ Mortgage. Sherri E. Russell Aff. in Supp. of Wells Fargo’s Mot. for Summ. J. Ex. B, Oct. 6, 2011, EOF No. 61. The Mortgage then passed to Fleet Mortgage Corp. (“Fleet Mortgage”) when Fleet Mortgage merged with Shawmut Mortgage on May 31, 1996, as confirmed by an assignment of the Mortgage from “Fleet Mortgage Corp. Successor by Merger to Shawmut Mortgage Co.” to “Fleet Mortgage Corp.” dated May 31, 1996." }, { "docid": "4613922", "title": "", "text": "contract, a Mortgage, and a TILA disclosure statement reflecting that the Debtors received a net sum of $5,197.50 in a direct loan transaction with the Creditor. The Debtors received this sum in the form of two checks made out to them and endorsed by them at that time in the sums of $5,145.59 and $51.91. The disclosure statement included, inter alia, the following entry: “Amount paid to Melt-zer & Schiffrin, Esq. for attorney’s fees ... $200.00.” Since the transaction resulted in a mortgage of their residential realty, the Debtors were required by 15 U.S.C. § 1635 of the TILA, to receive, and did receive and execute, a notice of their right to rescind the loan transaction on or before midnight of July 27, 1985. 4. The Debtors both testified that only Guzzi and themselves were present on July 24,1985. The Creditor’s loan officer, Louis Leone, originally testified that he was present on that date also. However, Mr. Leone first conceded that he only vaguely remembered the transaction; then admitted that he had no recollection at all and just remembered it by the way it was handled; and near the end of his testimony stated that he was only at Victory one time and definitely was there on July 29, 1985. We find the Debtor’s consistent recollections concerning the events of July 24, 1985, as in all of the instances of conflict in their testimony with that of Mr. Leone, to be far more credible. The Debtors had numerous small personal recollections of the events; Mr. Leone ultimately conceded that he had none except doubtful records and equally doubtful “established procedures” that he claimed to have followed. 5. The Debtors testified that, on Friday, July 26, 1985, Guzzi called them and told them that they could pick up the Jeep that evening. The Debtors testified that they did get the Jeep that evening after an encounter with Guzzi and an insurance agent who sold them insurance at Victory’s place of business, and that they used the Jeep that evening to take their large family to visit the Husband-Debtor’s parents in York," }, { "docid": "22247939", "title": "", "text": "Mr. Justice Blatchford delivered the opinion of the court. He stated the facts in the foregoing language, and continued: The Circuit Court, in its opinion, regarded the bill as an original bill to impeach the prior decreé for fraud, and not as a bill of review upon newly discovered facts and evidence. It held the bill to be insufficient, for want of an affirmative allegation that the plaintiff was ignorant, during the pendency of the original suit, of the facts set up in the bill, much less that it was unable, after due diligence, to ascertain and plead them. The court added: “ But the demurrer goes further, and raises the question whether the bill and exhibits do not show affirmatively, that the present complainant, through its stockholders, had notice of the foreclosure suit, knowledge of the defence now insisted upon against the third mortgage bonds, and ample .opportunity to make that defence. It is, we think, very clear, that, in considering the question of notice, no distinction can be made between the corporation and its officers and stockholders. We cannot separate them and say the officers and stockholders knew of the fraud, but the corporation did not. If,- therefore, the stockholders were advised of the foreclosure suit, and of the facts now charged as constituting fraud in the execution of the bonds and mortgages sued on therein, and had an opportunity to intervene and defend, and did not do so, the corporation is concluded by their laches. That the stockholders, as a body, were advised of the foreclosure suit, and took action looking to its defence, and- that they did not rely upon the officers of the corporation, but distrusted and antagonized them, is clear from the allegations of the forty-fifth count-of the bill, by which it\" is charged that the stockholders, in writing, requested the directors to resign, that others might be appointed in their place, .who would properly attend to the duties of their office; also, that the stockholders requested said directors to employ counsel other than James Baker to defend the suit'of Ketchum.” The court, in" }, { "docid": "22178912", "title": "", "text": "in possession of the Hyde Street premises at the latter date. He had previously testified the appellees had the “actual ownership but not actual possession” of the premises on April 6, 1945, and had been receiving a percentage of 'the profits since March 15, 1945. The record shows that the “onsale” beer and wine and distilled spirits licenses were issued to the appellees on April 6, 1945; that a sales tax permit was issued to them on March 16, 1945, and that the last date for which their predecessor paid a sales tax to the State of California was April 11, 1945. While Sahati testified that he did not receive either of the letters in question, there is no evidence that none of the other ap-pellees received them. Notice to one partner is notice to all. Sweet Sixteen Co. v. Sweet “16” Shop, supra, 8 Cir., 15 F.2d 920, at page 924. Teresa Gilligan, the secretary for one of the appellant’s attorneys, testified that she typed, addressed, stamped, and mailed each of the letters in question. The addresses on the envelopes corresponded with the addresses on the letters themselves. The envelopes contained return addresses. Section 1963 of the California Code of Civil Procedure provides in part as follows : “§ 1963. [Disputable presumptions.] All other presumptions are satisfactory, if un-contradicted. They are denominated disputable presumptions, and may be controverted by other evidence. The following are of that kind: ****** “24. That a letter duly directed and mailed was received in the regular course of the mail.” From all the evidence in this case, both oral and documentary, and from the legal consequences flowing therefrom-, we believe that one or more of the members of the Sahati partnership did receive one or both of the letters to which we have referred. Furthermore, we do not believe that a formal demand is requisite in a suit of this type. As we have seen, “regardless of the defendant’s initial purpose or knowledge, an injunction for the future was deemed appropriate because continuance of the imitation after the notice acquired in the suit would" }, { "docid": "21521232", "title": "", "text": "2009, FDIC as IndyMac Federal’s receiver entered into a Loan Sale Agreement (“LSA”) to sell substantially all of IndyMac Federal’s assets to Plaintiff-Appellee OneWest Bank, N.A. (“OneWest”). Section 2.05 of the LSA, titled “Closing,” contemplates that transfer of the subject notes “shall” take place at some future time. See App. 76. Section 3.04(b) of the LSA requires that all notes subject to transfer pursuant to the LSA bear a specific form of endorsement. Around the same time that OneWest acquired Melina’s loan, OneWest contracted with Deutsche Bank National Trust Company for Deutsche Bank to serve as document custodian for Melina’s original Note and mortgage. In that capacity, Deutsche Bank had physical possession of Melina’s original Note and mortgage from 2009 until April 2011, at which point Deutsche Bank sent them to OneWest. OneWest returned Melina’s Note and mortgage to Deutsche Bank in May 2011, and Deutsche Bank sent them back to OneWest in June 2014. OneWest then transmitted Melina’s original Note and mortgage to its foreclosure counsel at Gross Polowy, LLC, on June 19, 2014. On August 1, 2009, Melina defaulted on his loan by failing to make the payment due that day. He did not cure the default after receiving notice from OneWest. On July 21, 2014, CIT Group Inc. entered into a definitive Agreement and Plan of Merger between CIT Group and IMB HoldCo LLC, the parent company of OneWest. CIT Group is a Delaware corporation with its principal place of business located at 11 West 42nd Street, New York, New York. Article V, Section 5.2 of the Agreement and Plan of Merger requires that, during the period between the date of the agreement and the actual closing, OneWest seek CIT Group’s written permission prior to undertaking almost two dozen significant corporate decisions. These decisions include opening, closing, or relocating a branch. On September 10, 2014, OneWest commenced a foreclosure action against Melina in the United States District Court for the Eastern District of New York, invoking the court’s diversity jurisdiction. On that day, Melina’s original Note and Mortgage were in the physical possession of OneW-est’s counsel at" }, { "docid": "8727617", "title": "", "text": "Debt The Debtors filed their chapter 7 petition on February 1, 2002. Ditech.com was listed on Schedule D — Creditors Holding Secured Claims — as holding a second mortgage in the amount of $45,597.41 on the Debtors’ former residence at 6556 Smucker Drive, Westfield, Ohio. Ditech.com was served with notice of the § 341 meeting which states, inter alia: Creditors May Not Take Certain Actions The filing of the bankruptcy case automatically stays certain collection and other actions against the debtor and the debtor’s property. If you attempt to collect a debt or take other action in violation of the Bankruptcy Code, you may be penalized. If you believe that this stay should be modified or lifted, you may file a motion seeking such relief from the Court. On April 2, 2002 ditech.com filed a “Notice of Appearance and Request for all Notices, Plans and Disclosure Statements” in this case requesting that all such materials be sent to its offices at the following address: ditech.com, 500 Enterprise Road, Suite 150, Horsham, PA. [Docket # 6]. The Notice from ditech.com was signed by Delphine Trotter. On April 25, 2002 the Court entered an Order on a Motion for Relief from Stay filed by GMAC Mortgage Corporation, listed on Schedule D as holding the first mortgage on the Debtors’ former residence, granting the Motion for Relief from Stay and identifying the property at issue as 6556 Smucker Drive, Westfield, Ohio. The Certificate of Service on the Order indicates that ditech.com was served at the address it had requested. [Docket # 9]. The Debtors had moved from the property some time in March and relocated to Michigan. . On May 13, 2002 the Debtors filed the Motion and served it upon ditech.com. [Docket # 13]. The return of service filed with the Court by the Debtors indicates that the Motion was sent by certified mail to the address ditech.com had requested and that it was received by Ralph Stanton at ditech.com on May 15, 2002. [Docket # 15]. In their Motion the Debtors alleged that ditech.com had contacted them on approximately 15 occasions" }, { "docid": "6263301", "title": "", "text": "refusing a discharge. Section 15 of the bankruptcy act reads as follows: “Discharges, when Revoked, a. The judge may. upon the application of parties in interest w<ho have not been guilty of undue laches, filed at any time within one year after a discharge shall have been granted, revoke it upon a trial if it shall be made to appear that it was obtained through the fraud of the bankrupt,, and that the knowledge of the fraud has come to the petitioners since the \"granting of the discharge, and that the actual facts did not warrant the discharge.” I cannot find as a fact from anything set out in the moving papers that the said discharge of Augustus S. Downing was obtained through his fraud, or that of his attorneys in the proceeding. It may be that Barbara Troutwine and George IA Troutwine did not actually receive the notice. It may well be that same was lost in the mails, and it may be that such notices were lost after being delivered at and through the post office at Gloversville, N. Y., to said Troutwiues or to some one for them. The law does not provide that the notices must have been actually received by the creditors and read by them. After delivery from the post office, they may have been laid aside and overlooked. As already stated, the evidence is conclusive that the notice was not only published, but mailed in the mode and manner required by law. The statute was fully complied with. But conceding for the sake of argument that actual fraud meed not be shown, and that it is sufficient to revoke a discharge to show that a creditor or creditors of the bankrupt did not receive the notice, I must find that both Barbara Troutwine and George IA Troutwine were guilty of undue laches after having actual knowledge that the discharge had been granted. No reason or excuse is shown for not moving promptly to set aside and vacate the order granting the discharge after having notice thereof on or about January 1, 1912. A" }, { "docid": "12316126", "title": "", "text": "his taxes, the Commissioner sent a second notice by certified mail to Jones at the property’s address. Id. Again, the notice was returned as “unclaimed.” Id. Subsequently, Flowers purchased the house. She then delivered an unlawful detainer notice to the property. Id. The notice was served on Jones’s daughter who was living in the house at the time, and she notified Jones of the sale. Id. Jones then filed suit against the Commissioner, arguing the Commissioner failed to provide adequate notice of the forfeiture in violation of his due process rights. Id. The United States Supreme Court, holding in favor of Jones, concluded when a notice is returned unclaimed, the government is required to take additional reasonable steps to attempt to provide notice before a tax sale. Id. at 225, 126 S.Ct. 1708. “ ‘[W]hen notice is a person’s due ... [t]he means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it.’ ” Id. at 229, 126 S.Ct. 1708 (quoting Mullane, 339 U.S. at 315, 70 S.Ct. 652). To illustrate this point, the Court explained, “[n]o one desirous of actually informing [a property owner] would simply shrug his shoulders ... and say T tried’ ” if, for instance, the Commissioner had “prepared a stack of letters to mail to delinquent taxpayers, handed them to the postman, and then watched as the departing postman accidentally dropped the letters down a storm drain.” Id. Consequently, the Court determined after the Commissioner learned the original notice to Jones was returned unclaimed, the Commissioner was able to take some additional reasonable steps, such as resending the notice via regular mail or posting a notice on the door of the residence, but failed to do so. Id. at 225, 126 S.Ct. 1708. In the present case, the Commissioner prepared and sent two letters to Missouri Pacific, but both were returned and marked “NOT DELIVERABLE AS ADDRESSED-UNABLE TO FORWARD.” The Commissioner knew neither letter was actually received by the intended recipient and thus was aware Missouri Pacific, under the new name Union Pacific, had no actual notice" }, { "docid": "7903940", "title": "", "text": "not remember receiving the notices and could not find them in his records. Although the notices had been sent by certified mail, there was no evidence that T.A. Grant had signed for the notices. The Bankruptcy Trustee also testified that he had no record of receiving the notices, although T.A. Grant would normally have sent them to him. There was also no evidence that notices had been sent to the Trustee, J.B. and Gail Grant, or to Central Bank. The Sheriff did, however, publish notice of the impending tax sale in the Richland Parish newspaper. The taxes remained unpaid, and the property was sold to the Herringtons at the tax sale in May 1997. The property was estimated to be worth more than $70,000; the taxes owed were $118.19, and the Herringtons bought the property for a total of $227.63. The Sheriff then sent a notice of the sale by first class mail to T.A. Grant at the same address, stating that the property could be redeemed under state law. T.A. Grant did not respond, and no evidence was provided that T.A. Grant received this notice or that this notice was sent to the Bankruptcy Trustee, J.B. and Gail Grant, or to Central Bank or its successors. In 2001, T.A. Grant bought the Bankruptcy Trustee’s interest in the 15 parcels of land, including the property at issue. He purchased the property by a non-warranty deed for a total of $15,000. At some point after the tax sale, Bank One, N.A. (“Bank One”) became the legal successor to Central Bank through a series of corporate mergers, thus giving it a security interest in J.B. Grant’s interest. In 2002, Bank One assigned its interest in the J.B. Grant mortgage to Coba, LLC. In March 2003, T.A. Grant filed suit in bankruptcy court against the Herringtons, seeking to annul the tax sale. He also added Coba and J.B. Grant as additional defendants. Coba filed a cross-claim against the Herringtons. Following trial, the court rendered judgment against the Herringtons and declared the tax sale null because it was held in violation of the automatic" } ]